Citation Nr: 1829693	
Decision Date: 07/12/18    Archive Date: 07/24/18

DOCKET NO.  09-42 021A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for right elbow lateral epicondylitis (right elbow disorder).

2. Entitlement to service connection for ischemic heart disease (IHD), claimed as a heart disorder due to Agent Orange exposure (heart disorder).

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to December 20, 2016.

(The issue of entitlement to an initial disability rating for the residuals of degenerative disk disease (DDD) of the lumbar spine, status post laminectomy, L4-5 with archus facet replacement L4-5 (lumbar spine disability), higher than 20 percent for the period prior to December 20, 2016, and higher than 40 percent for the period December 20, 2016, forward is addressed in a separate Board decision)


REPRESENTATION

Appellant represented by:	Charles D. Romo, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from September 1967 to
August 1971, and from November 1976 to December 1992. He served in the Republic of Vietnam from February 1968 to April 1970.  Awards and decorations include the Bronze Star Medal, the Air Medal with V for Valor device, and the Combat Infantryman Badge.

This matter comes to the Board of Veterans' Appeals Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A September 2010 rating decision denied service connection for the right elbow disorder, and denied a TDIU; and, a February 2011 rating decision denied service connection for IHD as due to presumed exposure to herbicides agents. The Veteran perfected separate appeals of those determinations.

The issue of entitlement to service connection for right elbow disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

On January 25, 2017, prior to the promulgation of a decision on the appeal, on the record at the Board hearing, the Veteran withdrew his appeal of the issue of entitlement to service connection for a heart disorder as due to Agent Orange exposure.

The evidence of record is at least in equipoise as to whether the Veteran's service- connected disabilities rendered him incapable of obtaining and maintaining substantially gainful employment prior to December 20, 2016.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a heart disorder as due to Agent Orange exposure have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  Affording the Veteran all benefit of the doubt, the criteria for a TDIU for the period prior to December 20, 2016, are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Withdrawal of Appeal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by an appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at the Board hearing, the Veteran, through his representative, affirmatively withdrew his appeal of the issue of entitlement service connection for a heart disorder as due to Agent Orange exposure. (01/25/2017 Hearing Testimony, p. 2). In light of this action by the Veteran, the Board finds that there remain no allegations of errors of fact or law for appellate consideration as concerns the issue. Accordingly, the Board does not have jurisdiction to review it, and the appeal of that issue will be dismissed in the Order later in this decision.

TDIU 

The May 2017 rating decision also granted a TDIU, also effective December 20, 2016. The Board now addresses whether the Veteran's service-connected disabilities rendered him unemployable prior to that date. See 38 C.F.R. § 3.400.


Applicable Legal Requirements

In order to establish entitlement to a TDIU, there must be impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability.  

When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more.  When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Entitlement to a TDIU is based on an individual's particular circumstances.  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).

Discussion

In light of the fact that the Board allowed an initial 40 percent rating for the low back disability for the period prior to December 20, 2016, in a separate decision, the Veteran's total combined rating for the entire rating period is 70 percent (05/23/2017 Rating Decision-Codesheet). Service connection is in effect for PTSD, rated 50 percent disabling; low back disorder, rated 40 percent disabling; tinnitus, rated 10 percent disabling; and, bilateral hearing loss, rated noncompensable, which equates to the 70 percent total combined rating. See 38 C.F.R. § 4.25.

The July 2012 examination report notes that the Veteran reported that he retired on SSA disability in 2008. Initially, SSA determined that the Veteran's low back disability did not render him unable to work. See 07/02/2014 SSA Med. Records, P. 4. Documentation related to a favorable appeal action is not in the records provided by the agency. In any event, because there are significant differences in the definition of disability under the SSA and VA systems, SSA determinations are not binding on VA. Holland v. Brown, 6 Vet. App. 443, 448 (1994). On the other hand, there are also significant similarities between the two systems. Consequently, the Board must provide the basis for disagreeing with or not accepting a finding of disability by a SSA ALJ. Id.

The evidence of record reflects that the Veteran has a high school education and three years of college, where he studied criminal justice. As noted earlier, his past work included work as a self-employed building contractor and sky diving instructor.

VA VR&E records reflect that the Veteran applied for VR&E benefits in 2009 because he wanted to work part time. The assessment determined that the Veteran's service-connected restrictions in mobility and mood swings impaired his ability to prepare for, obtain, or retain employment consistent with abilities, aptitudes, and interests. The Veteran's service-connected disabilities caused restrictions in lifting, carrying, bending, stooping, kneeling, driving, as well as the need to alternate sitting, standing and walking, which resulted in substantial part in his ability to prepare, obtain and retain employment. The assessment noted that the Veteran's college courses, which were taken some 19 years earlier, plus a prior conviction for DUI rendered employment in the criminal justice area inconsistent; and, the Veteran had no interest in it. Overall, the assessment concluded that, the disabilities, along with his lack of skills, lack of work history, criminal record, age, attitudes toward individuals with disabilities, the current economy, and rural location precluded the Veteran's plan from being feasible at that time (06/01/2017 Other, p. 32).

The Board finds that the VR&E assessment places the state of the evidence in equipoise at a minimum. This is sufficient to allow the benefit sought.  38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16.

In as much as the Board allows a TDIU based on the impact of all of the Veteran's disabilities, he does not meet the criteria for special monthly compensation. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010).

ORDER

The appeal of the issue of entitlement to service connection for a heart disorder as due to Agent Orange exposure is dismissed.

Entitlement to a TDIU for the period prior to December 20, 2016 is granted.


REMAND

The September 2012 examination report reflects that the examiner opined that it was not at least as likely that the Veteran's right elbow strain is causally connected to his active service. The Board finds the opinion inadequate for appellate review purposes. First, the examiner noted that he was unable to find the 1987 entry in the STRs that noted the Veteran's treatment for a right elbow complaint as the Veteran reported. On remand, the examiner should be referred to 09/29/2008 STR-Medical, 2nd Entry, p. 7. Second, the examiner noted that the requested nexus opinion could not be provided without resort to mere speculation. The examiner, a nurse practitioner (NP), did not indicate whether his inability to render the requested opinion was due to the current state of medical knowledge and research in the medical community at large, or due to the limits of his personal training and knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)

Accordingly, the case is REMANDED for the following action:

1. Send the claims file to the examiner who conducted the September 2012 right elbow examination. Ask the examiner to explain whether the inability to provide the requested opinion was due to the limitations of knowledge in the medical community at large and not those his own. At a minimum, the examiner should inform the AOJ of what additional information is needed to provide the requested opinion.

2. The Board affords the AOJ the option of referring the claims file to a physician for a medical nexus review in lieu of returning it to the NP who examined the Veteran. If so, ask the physician to review the file and opine whether there is at least a 50 percent probability that the Veteran's currently diagnosed right elbow strain is causally connected to the treatment noted in the STRs, or is otherwise connected to active service?

Any examiner/reviewer must provide a full explanation and rationale for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated; and, the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to decide. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

Should a substitute examiner advise that the requested opinion cannot be rendered without an examination, the AOJ shall arrange the examination.

The Veteran has the right to submit additional evidence and argument on the matter or 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 2012).




______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs