Citation Nr: 1805999 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-24 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), which is currently rated as 70 percent disabling. 2. Entitlement to service connection for coronary artery disease (claimed as heart condition), to include as secondary to the service-connected PTSD. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from January 1944 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Due to the Veteran's actual place of residence, jurisdiction was later transferred to the RO in Montgomery, Alabama. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to an increased rating for PTSD and service connection for a heart condition is addressed in the REMAND portion of the decision below and are being REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least in equipoise regarding whether the Veteran's service-connected PTSD has precluded him from securing or maintaining substantially gainful employment since February 17, 2009. CONCLUSION OF LAW Since February 17, 2009, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met. Id. But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities. In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Here, the Veteran has been in receipt of a 70 percent evaluation for his service-connected PTSD since December 12, 2005 and, consequently, meets the schedular criteria for an award of a TDIU for the entire period on appeal. 38 C.F.R. § 4.16(a). A March 2008 general medical examination report shows that the Veteran reported last working in 1993 as a county commissioner. He indicated that he would be unable to perform that type of work due to his psychiatric issues. An MRI report indicates that the Veteran had progressive decline in recent memory, concentration, attention, and executive functioning. Dr. M.G., a psychiatrist, submitted a statement in March 2008 indicating that she had treated the Veteran since January 2006. Dr. M.G. noted diagnoses of chronic PTSD, Alzheimer's type dementia, and depressive disorder. Dr. M.G. then stated that the Veteran was unable to work due to significant cognitive impairment. However, the Board notes that it is not clear which diagnosis this conclusion is in reference to, since the Veteran was noted to have multiple diagnoses by Dr. M.G. A March 2009 VA PTSD examination report indicates that the Veteran's PTSD causes a significant sleeping impairment, which results in exhaustion that interferes with his daytime activities. Additionally, the reported history reflects the Veteran was one year shy of completing high school, prior to enlisting into the military, but he did manage to get his high school diploma after separation. He reported no other educational achievement or training. An October 2009 medical statement from the Veteran's private physician, Dr. R.M., who opined that the Veteran is as likely as not unable to work due to his PTSD, due to the impairment caused by the following symptoms: nervousness, agitation, difficulty being around others, inability to focus, poor short term memory, fatigue, irritability, and anger at times. Another October 2009 medical opinion, this by a Dr. L.C., notes that the Veteran is suffering from end-stage coronary artery disease and PTSD. Dr. L.C. stated that the Veteran has progressive debilitation and, at this point, is permanently disabled. In light of the foregoing reasons, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim. Therefore, the Board is of the opinion that the point of equipoise has been reached in this appeal. The Board acknowledges that the record shows the Veteran has been diagnosed with other psychiatric conditions in addition to his service-connected PTSD, however the competent medical evidence of record does not reflect that an examiner has been able to differentiate his symptoms solely due to his PTSD. As a result, after resolving all reasonable doubt in favor of the Veteran, the most probative evidence establishes that the Veteran's service-connected PTSD precludes him from securing or maintaining substantially gainful employment for which his education and occupational experience would otherwise qualify him since February 17, 2009. Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, at worst, evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). Therefore, as the Veteran has credibly reported, and the medical evidence has duly noted, the occupational impairment resulting from his service-connected PTSD, the Board finds that the award of a TDIU, effective February 17, 2009, is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted, effective February 17, 2009. REMAND The record contains a Compensation and Pension Exam Inquiry printout indicating that a request for a VA compensation examination was made in October 2016, and was subsequently cancelled because the Veteran refused the examination. A report of contact dated in February 2016 noted that the Veteran's wife was in the hospital due to a broken hip and his daughter was currently the caretaker for both of them, but she does not have transportation now. See also Veteran's March 2016 Statement (reporting that him and his wife were going into Assisted Living, Morningside); and, VA Patient Contact Noted dated Oct. 17, 2016 (Veteran reporting that he is unable to travel to the examination). The Board finds that lack of transportation constitutes good cause for the Veteran's failure to attend the scheduled examination. Therefore, on remand, the AOJ should schedule him for a VA examination to determine the nature and severity of his service-connected PTSD. Further, in light of the Veteran's inability to travel due to his health, the AOJ should inquire into the feasibility of conducting the examination on-site at the Veteran's assisted living facility, including having a private or on-site healthcare provider complete the appropriate disability benefits questionnaires. If found to be feasible, afford the Veteran the appropriate VA examination. Regarding the Veteran's claim of entitlement to service connection for coronary artery disease (claimed as a heart condition), the Board finds an examination is warranted to address whether such a condition is proximately due to or aggravated by the service-connected PTSD, to include any prescribed medication. Lastly, as the Board is remanding the case for further development, the Veteran's updated VA treatment records, since October 2016, should be obtained and added to the record. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also, ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After all available records have been associated with the claims file, take the appropriate steps to assess the feasibility of conducting an examination on-site at the Veteran's assisted living facility, including having a private or on-site healthcare provider complete the appropriate disability benefits questionnaire (DBQ). If found to be feasible, make arrangements to administer the VA examination to determine the current level of severity of the Veteran's PTSD. His claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. The examiner must provide a complete rationale for any opinion given. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice. If the AOJ is unable to arrange for the administration of a VA PTSD examination or the completion of the DBQs, then the AOJ should document its efforts and provide an explanation for why it is not feasible to accomplish the examinations. Such documentation should also be associated with the claims file. 3. After all available records have been associated with the claims file, request a medical opinion from a suitably qualified VA clinician regarding the Veteran's claimed heart condition. His claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. Following complete review of the record, the examiner is asked to opine on whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed heart condition, to include coronary artery disease, was proximately due to or aggravated by his service-connected PTSD, to include any prescribed medication to treat it. The examiner should note that the term "aggravated by" refers to "any increase in severity" of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. If the examiner opines that the Veteran's service-connected PTSD has aggravated his heart condition, then the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. If the examiner concludes that the Veteran's service-connected PTSD has not aggravated his heart condition, then the examiner is asked to reconcile the internal consistencies within the May 2009 VA Heart Examination Report, which states that "there is no objective evidence found that CAD is SOLELY due to PTSD" and that "the Veteran's PTSD most likely than not contributed to the development of his CAD." The examiner must provide a complete rationale for any opinion given. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice. 3. Ensure that the requested examination reports are responsive to the applicable rating criteria. If they are not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2. 4. After completing the above and any other development deemed necessary by the AOJ, readjudicate the claims remaining on appeal. If these claims remain denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC), and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs