Citation Nr: 1807090	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  12-17 464	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating).

2.  Entitlement to compensation for a bilateral eye disability (claimed as bilateral eye blurred vision, ghost images, and light sensitivity) under 38 U.S.C. § 1151.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from February 1991 to September 1994.

The matter of a TDIU rating is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for panic disorder with agoraphobia and assigned a 30 percent rating, effective September 20, 2007.  The Veteran appealed the initial 30 percent rating assigned for his panic disorder with agoraphobia for the period from September 20, 2007 through September 7, 2009.  [An October 2009 rating decision granted an increased 50 percent rating for panic disorder with agoraphobia, effective September 8, 2009.  At an April 2014 hearing before a different Veterans Law Judge (who did not take any testimony pertaining to a TDIU rating, so therefore, a panel decision is not currently needed for the TDIU issue), the Veteran specifically excluded the period beginning on September 8, 2009 from his increased rating appeal for panic disorder with agoraphobia.]  In a June 2014 decision (authored by the Veterans Law Judge who conducted the April 2014 hearing), the Board (in pertinent part): (1) granted an increased initial rating of 50 percent for the Veteran's panic disorder with agoraphobia, effective September 20, 2007 through September 7, 2009; and (2) remanded for additional development a claim for a TDIU rating as part and parcel of the increased rating claim for panic disorder with agoraphobia on appeal at that time (pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009)), noting that the Veteran had made a claim for the highest rating possible and the record reflected that he was currently unemployed.

The matter of compensation for a bilateral eye disability under 38 U.S.C. § 1151 is before the Board on appeal from a March 2016 rating decision of a VA RO.

Pursuant to a June 2017 remand for a Board hearing, a videoconference hearing was held in September 2017 before the undersigned Veterans Law Judge for both the TDIU issue and the 38 U.S.C. § 1151 issue, and a transcript of that hearing is associated with the record.  As indicated above, because the undersigned Veterans Law Judge is the only judge who held a hearing on the TDIU issue (as well as the 38 U.S.C. § 1151 issue), the undersigned Veterans Law Judge is the only judge who must participate in the instant decision on these issues (and a panel decision is neither required nor appropriate).

At the time of his September 2017 hearing, the Veteran submitted additional evidence, accompanied by a waiver of initial RO consideration.  This evidence will be considered by the Board in adjudicating the appeal.  See 38 C.F.R. § 20.1304 (2017).


FINDINGS OF FACT

1.  For the entire period of claim (i.e., from September 20, 2007), it is reasonably shown that the Veteran's service-connected bilateral tinnitus and panic disorder with agoraphobia (together rated 60 percent, when considered as one disability under 38 C.F.R. § 4.16(a) for resulting from common etiology) precluded him from obtaining or maintaining substantially gainful employment.

2.  The Veteran's December 2015 eye surgery (which he claims was the cause of a current bilateral eye disability) was not furnished to the Veteran either by a Department employee or in a Department facility, and therefore any bilateral eye disability resulting from such surgery is not a qualifying additional disability as defined by 38 U.S.C. § 1151.


CONCLUSIONS OF LAW

1.  For the entire period of claim (i.e., from September 20, 2007), the schedular requirements for a TDIU rating are met, and a TDIU rating is warranted.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).

2.  The criteria for entitlement to compensation for a bilateral eye disability (claimed as bilateral eye blurred vision, ghost images, and light sensitivity) under 38 U.S.C. § 1151 have not been met.  38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.1530 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [V]eteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided.

TDIU Rating

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.  Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered.  38 C.F.R. §§ 3.340, 3.341, 4.16.

A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service connected disabilities and has a single service-connected disability ratable at 60 percent or more, or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability.  See 38 C.F.R. § 4.16(a).

As noted in the Introduction, a claim for a TDIU rating was raised in the context of the increased rating claim for panic disorder with agoraphobia that had been on appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), at the time of the Board's June 2014 decision (when the Board simultaneously remanded the TDIU claim for further development).

Because the Veteran is service-connected for panic disorder with agoraphobia (rated 50 percent from September 20, 2007) as secondary to his service-connected bilateral tinnitus (rated 10 percent from May 10, 2006), the Board finds that these two disabilities result from one common etiology and therefore will be considered as one disability under 38 C.F.R. § 4.16(a) with a rating of 60 percent (pursuant to 38 C.F.R. § 4.25) as of September 20, 2007.  Therefore, the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a) have been met for the entire period of claim (i.e., from September 20, 2007).

The record reflects that the Veteran completed three years of college education and that he most recently worked as a security screener with the Transportation Security Administration (TSA) (for approximately 4 years) until he injured his left ankle in May 2007 (for which he received Workers' Compensation) and left that job in September 2007.

Despite the Veteran's left ankle injury, the evidence of record throughout the period of claim consistently documents that he became unable to work, and ultimately had to stop working for the TSA in September 2007, because of his panic disorder with agoraphobia.  At a November 2007 VA psychiatric examination, the examiner opined that the Veteran's "tinnitus is unrelenting, and causes the [V]eteran stress" and that "the panic disorder is due to the tinnitus," and noted that since the Veteran had developed his mental condition of panic disorder with agoraphobia, he "can't work" and "cannot leave the house so he is unemployable."  At a September 2009 VA psychiatric examination, the Veteran indicated that his wife got mad at him "for not being able to work or go out as a family due to panic" and stated that he had had panic symptoms for years and that such symptoms were starting to affect his work prior to his left ankle injury; in addition, the examiner opined that the "Veteran's current panic attacks would more likely than not have significant negative effect on ability to maintain regular workload."  In an April 2013 VA treatment record, a VA psychiatrist opined as follows: "In my opinion, pt [patient, the Veteran] is disabled permanently and unable to work due to his panic attack and depression."  On a May 2017 Physician's Certification form, the same VA psychiatrist opined that the Veteran "has severe panic disorder causing him [to be] unable to work permanently.  He is disabled permanently and unable to work....[the Veteran] is service connected disable[d] due to panic disorder and he is unemployable due to his severe panic disorder."  At his September 2017 hearing, the Veteran testified that, prior to injuring his left ankle, he experienced panic attacks on the job while working as a TSA security transportation screener, and that he had to hide in the bathroom until he was able to calm himself down because he did not want to lose his job.

As noted above, the Veteran meets the schedular percentage requirements for a TDIU rating under 38 C.F.R. § 4.16(a) for the entire period of claim (i.e., from September 20, 2007), because his panic disorder with agoraphobia and bilateral tinnitus result from one common etiology and therefore are considered as one disability under 38 C.F.R. § 4.16(a) with a rating of 60 percent (pursuant to 38 C.F.R. § 4.25) as of September 20, 2007.  Furthermore, the evidence of record reasonably shows that this service-connected disability precludes him from obtaining and maintaining substantially gainful employment consistent with his work history and education.  As outlined above, two VA examiners (in November 2007 and September 2009, respectively) as well as a VA psychiatrist (in April 2013 and May 2017) have persuasively described the limiting effects of the Veteran's service-connected panic disorder with agoraphobia due to tinnitus on his ability to work.

Accordingly, the Board finds that a TDIU rating is warranted for the entire period of claim (i.e., from September 20, 2007).  See 38 C.F.R. § 4.16(a).

Compensation under 38 U.S.C. § 1151

Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service connected.  For purposes of this section, a disability is a qualifying additional disability if (1) the disability was not the result of the Veteran's willful misconduct, (2) the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under the law administered by the Secretary, either by a Department employee or in a Department facility defined in 38 U.S.C. § 1701(3)(A), and (3) the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable.  38 U.S.C. § 1151.

The implementing regulation is 38 C.F.R. § 3.361, which provides that claims based on additional disability due to VA hospital care, medical or surgical treatment, or examination must meet the actual causation requirements of 38 C.F.R. § 3.361(c)(1)-(2), and proximate causation of 38 C.F.R. § 3.361(d)(1) (informed consent) or 38 C.F.R. § 3.361(d)(2) (unforeseen event).

A Department employee is defined as an individual: (1) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105, (2) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law, and (3) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs.  38 C.F.R. § 3.361(e)(1).
Facilities of the Department (i.e., Department facilities) are defined as: (1) facilities over which the Secretary has direct jurisdiction, (2) Government facilities for which the Secretary contracts, and (3) public or private facilities at which the Secretary provides recreational activities for patients receiving care under 38 U.S.C. § 1710.  38 U.S.C. § 1701(3)(A); see also 38 C.F.R. § 3.361(e)(2).

"The following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. 1151(a): (1) Hospital care or medical services furnished under a contract made under 38 U.S.C. 1703; (2) Nursing home care furnished under 38 U.S.C. 1720; (3) Hospital care or medical services, including examination, provided under 38 U.S.C. 8153 in a facility over which the Secretary does not have direct jurisdiction."  See 38 C.F.R. § 3.361(f).

The Veteran contends that he is entitled to compensation for a bilateral eye disability (claimed as bilateral eye blurred vision, ghost images, and light sensitivity) under the provisions of 38 U.S.C. § 1151.  Essentially, the Veteran claims that he developed a bilateral eye disability as a result of undergoing laser peripheral iridotomy (LPI) surgery on both eyes at a private facility by a private physician in December 2015.  [The Veteran has not claimed at any time that a bilateral eye disability resulted from any VA medical care that he received either before or after such surgery.]

The evidence of record documents that the Veteran's December 2015 eye surgery was scheduled and performed with a private specialist pursuant to the Veterans Choice Program.  See 38 C.F.R. §§ 17.1500-1540 (2017).  In order for an entity or provider to be eligible to deliver care under the Veterans Choice Program, such entity or provider must be either (1) not a part of, or an employee of, VA, or (2) if the provider is an employee of VA, then is not acting within the scope of such employment while providing hospital care or medical services through the Veterans Choice Program.  See 38 C.F.R. § 17.1530.

As outlined above, to establish entitlement to compensation under 38 U.S.C. § 1151, the evidence must first show that hospital care, medical or surgical treatment, or examination was furnished to the Veteran either by a Department employee or in a Department facility, and must thereafter show that such care, treatment, or examination actually and proximately caused the Veteran's additional disability.  See 38 U.S.C. § 1151(a)(1) (emphasis added).

The evidence clearly establishes that the Veteran's December 2015 eye surgery was performed at a private facility by a private physician (in accordance with the requirements of the Veterans Choice Program, including the aforementioned provisions of 38 C.F.R. § 17.1530), and the Veteran has not contended otherwise.  In addition, the Board reiterates that the applicable laws and regulations explicitly exclude the following from the definition of "hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility" within the meaning of 38 U.S.C. 1151(a): hospital care or medical services furnished under a contract made under 38 U.S.C. 1703, and hospital care or medical services, including examination, provided under 38 U.S.C. 8153 in a facility over which the Secretary does not have direct jurisdiction.  See 38 C.F.R. § 3.361(f).

Because the Veteran's December 2015 eye surgery (which he claims was the cause of a current bilateral eye disability) was not furnished to the Veteran either by a Department employee [defined by 38 C.F.R. § 3.361(e)(1)] or in a Department facility [defined by 38 U.S.C. § 1701(3)(A) and 38 C.F.R. § 3.361(e)(2)], the Board finds that any bilateral eye disability resulting from such surgery is not a qualifying additional disability as defined by 38 U.S.C. § 1151.  Therefore, the Veteran's claim for entitlement to compensation for a bilateral eye disability (claimed as bilateral eye blurred vision, ghost images, and light sensitivity) under 38 U.S.C. § 1151 must be denied as a matter of law [and any questions of actual or proximate causation of the claimed eye disability are rendered moot].  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application.  38 U.S.C. § 5107(b).





ORDER

A TDIU rating is granted for the entire period of claim (i.e., from September 20, 2007), subject to the regulations governing payment of monetary awards.

Entitlement to compensation for a bilateral eye disability (claimed as bilateral eye blurred vision, ghost images, and light sensitivity) under 38 U.S.C. § 1151 is denied.




____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs