Citation Nr: 18153147 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 14-35 372A DATE: November 27, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted effective August 24, 2011. REMAND Entitlement to a disability rating in excess of 60 percent for Ischemic Heart Disease (IHD) is remanded. FINDING OF FACT The probative evidence of record demonstrates that the Veteran has been unable to secure or follow substantially gainful employment because of his service-connected disabilities since August 24, 2011. CONCLUSION OF LAW The criteria for a TDIU effective August 24, 2011 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.40, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970, to include service in the Republic of Vietnam. He was awarded the Combat Infantryman Badge, the Purple Heart, and the Bronze Star Medal with the “V” device, among other decorations. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran has been service-connected for anxiety disorder with alcohol abuse at a 70 percent rating since November 2010, IHD at a 30 percent rating from August 24, 2011 and a 60 percent rating since October 2011, and shrapnel wounds of the bilateral legs rated at 0 percent (noncompensable) since November 2010. His combined service-connected disability rating has been 70 percent or greater since November 26, 2010; therefore, he has met the schedular requirements for TDIU per 38 C.F.R. § 4.16(a) since that date. Initially, the Board notes the period for review in this case is from November 26, 2010 forward. That is the earliest effective date for the grant of any of the Veteran’s service-connected disabilities and the date he submitted his claim for service connection for a psychiatric disorder, shrapnel wounds, and other disabilities. He then submitted an application for a TDIU in April 2012. A claim for TDIU was denied in October 2012; however, the Veteran submitted new and material evidence in the form of a buddy statement in February 2013. Thus, the October 2012 rating decision did not become final. The claim for a TDIU was again denied in September 2013 and the Veteran disagreed with that determination and perfected the present appeal. The Board finds that the Veteran’s service-connected disabilities precluded substantial and gainful employment since August 24, 2011. In the Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) filed in February 2011 he reported last working as a laborer in April 2008; however, in a VA Form 21-8940 submitted in in October 2012, the Veteran reported full-time work from January 1990 to January 2012 in masonry and that he attended some college. The Veteran also explained that full time work was not affected until November 2011. In contrast, in April 2011, the Veteran’s employer stated that the Veteran was working about 20 to 25 hours per week “cutting brick and jointing, sweeping and clean-up.” The employer also reported that the Veteran was performing very light work with short breaks and no heavy lifting. Another report from the same employer dated February 2012 indicated that the Veteran had retired due to age and health reasons in January 2012. The employer stated that prior to ending employment, the Veteran had been working part time for at least the last 12 months, and had been given less strenuous work due to concerns over heart problems. A private psychologist diagnosed the Veteran in November 2010 with PTSD, depressive disorder, and alcohol abuse stated that the Veteran had difficulties with impulse control, as evidenced by suicidality, difficulty with irritability, and angry outbursts. The private psychologist stated these psychological symptoms were quite evident and likely to substantially and negatively impact the Veteran’s employability. A private chiropractor stated in December 2010 that for reasons of military related cardiac disease, hearing impairment, and unpredictable manifestations of PTSD, the Veteran was unemployable and totally and permanently disabled. The Board notes that service connection has never been established for hearing impairment and it is therefore not considered military related. A VA psychologist who examined the Veteran in November 2011 diagnosed anxiety disorder and alcohol dependence and opined that these disorders result in occupational and social impairment with mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. However, the psychologist did note symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. In December 2011, after examination, a different VA psychologist diagnosed depressive disorder and opined that this disorder resulted in occupational and social impairment with mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner concluded that the Veteran is “working part-time only due to a slow economy in the last 3 years and seemed willing, ready, and able to return to work full-time.” The examiner also stated it was “Unclear where issue of unemployability arose, however, veteran is not deemed unemployable….” Symptoms noted at the time included depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. A disability determination from the Social Security Administration (SSA) dated in March 2011 diagnosed the Veteran with chronic obstructive pulmonary disease (COPD) and affective/mood disorder. The SSA did not find the Veteran disabled for SSA purposes. In October 2012, a staff physician at a VA facility who had been the Veteran’s primary care physician since 2000 wrote a letter stating that the Veteran in the previous two years had difficulty with dyspnea on exertion to the point he could no longer perform his work as a brick mason. The VA physician stated that based on the Veteran’s coronary artery disease, ischemic cardiomyopathy, myocardial infarction, and COPD, the Veteran was “totally and permanently unemployable.” The same VA physician wrote another letter in February 2013 stating that the Veteran’s heart condition and emphysema caused significant dyspnea which made it not possible for the Veteran to continue his only known vocation as a brick mason. The VA physician also stated that the Veteran was no longer capable of physical activity, and that the Veteran would not be a suitable candidate for clerical skills because the Veteran had never acquired the life skills for such work. The physician’s opinion again was that the Veteran was unemployable. A VA examination of May 2013 found that the Veteran’s heart condition impacted his ability to work, and that he would have difficulty with physical labor that would require lifting objects or climbing stairs. Further, the examiner stated that the Veteran was limited in his ability to secure and maintain physical labor due to his IHD disability, but had no limitations with other employment not involving physical labor. The Veteran also submitted a letter from a friend dated in February 2013, which stated that the Veteran was no longer capable of any kind of prolonged physical activity, and that he can no longer walk more than a few hundred yards without resting. The friend observed that the Veteran’s overall activity level had decreased noticeably in the prior few years. A VA examination in July 2017 diagnosed the Veteran with service-connected PTSD. With regard to the ability to work, the examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Symptoms at the time included anxiety and chronic sleep impairment. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has been unemployable due to his service-connected disabilities since August 24, 2011, the effective date of the grant of service connection for IHD. Notably, the 2010 private practitioners suggest that the Veteran’s psychiatric disorder would have substantial effects on employment. While the VA examiners in 2011 found only mild occupational impairment, symptoms such as difficulty in establishing and maintaining effective work and social relationships, disturbances in motivation and mood, suicidal ideation are noted. The November 2011 examiner noted other severe symptoms including difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships. Overall, the Board finds that the service-connected psychiatric disorder would have a substantial effect on employment. As noted above, a VA physician has concluded that dyspnea from the Veteran’s service-connected IHD and nonservice-connected dyspnea would severely limit if not altogether preclude heavy physical labor such as masonry. The VA examiner in May 2013 also found the Veteran was limited in his ability to secure and maintain physical labor due to his IHD. Given the substantial effects on employment caused by the psychiatric disorder and the physical limitation imposed in part as a result of the IHD, and considering the Veteran’s history of manual labor employment, the Board finds that his service-connected disabilities in combination precluded employment since service connection was awarded for IHD. While the Veteran ceased employment prior to August 24, 2011, he was only service connected for the psychiatric disorder and residuals of shrapnel wounds prior to that date. The shrapnel wounds have not been shown to interfere with employment as reflected by the noncompensable rating currently assigned. As noted above, the psychiatric disorder has a substantial effect on employment; however, it would not have precluded a physical labor job with little interaction with others, such as masonry, the trade the Veteran worked in for years. Importantly, responses from the Veteran’s former employer suggest that it was his heart problems and not psychiatric problems that limited his employment. While SSA uses a different standard, the Board also finds it significant that in March 2011 SSA determined that the Veteran’s COPD and affective/mood disorder did not render him disabled. Thus, the Board finds that a TDIU is not warranted prior to August 24, 2011. REASONS FOR REMAND A VA examination of October 2011 found that the Veteran had MET score of 4.8, which warranted the current 60 percent disability rating. Another VA examination was performed in May 2013 indicated that the Veteran had a score of more than 7 METs but not greater than 10. After the VA examination of May 2013, in February 2014 a VA physician provided the Veteran with a letter wherein the doctor said that the pumping action of the Veteran’s heart had gotten worse. In his appeal to the Board, the Veteran states his heart condition has worsened. As the evidence suggests the disability has gotten worse since the last exam in May 2013, the Veteran should be scheduled for another examination. Therefore, the matter is REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his IHD claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA medical examination to determine the current symptoms, level of severity, and functional impairment associated with his IHD. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ruben D. Rudolph, Jr., Associate Counsel