Citation Nr: 1811948 Decision Date: 02/26/18 Archive Date: 03/07/18 DOCKET NO. 14-28 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 23, 2016. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person, or by reason of being permanently housebound. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to March 1995 and was awarded the National Defense Service Medal, South West Asia Service Medal, and Armed Forces Expeditionary Medal. This matter is on appeal from April 2014 and May 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board observes that the RO had originally adjudicated the Veteran's claim as entitlement to service connection for PTSD. However, the medical evidence of record reveals diagnoses of various acquired psychiatric disorders. Accordingly, the issue has been amended as reflected on the cover page. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board notes that the Veteran has been in receipt of a combined 100 percent rating for his service-connected disabilities since February 23, 2016. As a 100 percent rating is the maximum payable, the period since February 23, 2016 is not for consideration in the appeal of TDIU. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to February 23, 2016, service connection was in effect for coronary artery disease, rated as 30 percent disabling effective April 1, 1995 to November 18, 2013 and 60 percent thereafter; hypertension, rated as 0 percent disabling effective November 18, 2013; left carpal tunnel syndrome, rated as 0 percent disabling effective April 1, 1995 to November 18, 2013 and 30 percent thereafter; right carpal tunnel syndrome, rated as 0 percent disabling effective April 1, 1995 to November 18, 2013 and 20 percent thereafter; right leg radiculopathy, rated as 20 percent disabling effective November 6, 2013 to February 23, 2016; left leg radiculopathy, rated as 20 percent disabling effective November 6, 2013; lumbar spine strain with degenerative changes, rated as 10 percent disabling effective November 6, 2013 to December 3, 2014 and 20 percent thereafter; internal derangement of the left knee, rated as 10 percent disabling effective April 1, 1995; and internal derangement of the right knee, rated as 10 percent disabling effective April 1, 1995. 2. The Veteran's multiple service-connected disabilities have precluded him from securing or following a substantially gainful occupation since November 6, 2013. 2. The Veteran's multiple service-connected disabilities render him in need of the aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met since November 6, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 2. The criteria for SMC based on the need for aid and attendance have been met. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS TDIU The Veteran contends that he is unemployable as a result of his service-connected disabilities, including his coronary artery disease, lumbar spine strain, bilateral carpal tunnel syndrome, bilateral knee disability, and bilateral lower extremity radiculopathy. In his August 2014 TDIU application, the Veteran asserted that his disabilities render him unable to secure or follow a substantially gainful occupation as of March 2012. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2016). A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2016). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a) (2016). For the purpose of one 60 percent disability, or one 40 percent disability in, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a) (2016). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Here, the Veteran meets the schedular rating for a TDIU as of November 6, 2013. Service connection has been established for coronary artery disease, rated as 30 percent disabling effective April 1, 1995 to November 18, 2013 and 60 percent thereafter; hypertension, rated as 0 percent disabling effective November 18, 2013; left carpal tunnel syndrome, rated as 0 percent disabling effective April 1, 1995 to November 18, 2013 and 30 percent thereafter; right carpal tunnel syndrome, rated as 0 percent disabling effective April 1, 1995 to November 18, 2013 and 20 percent thereafter; right leg radiculopathy, rated as 20 percent disabling effective November 6, 2013 to February 23, 2016 and 40 percent thereafter; left leg radiculopathy, rated as 20 percent disabling effective November 6, 2013; lumbar spine strain with degenerative changes, rated as 10 percent disabling effective November 6, 2013 to December 3, 2014 and 20 percent thereafter; internal derangement of the left knee, rated as 10 percent disabling effective April 1, 1995 to November 18, 2013 under Diagnostic Code 5257 and under Diagnostic Code 5260 thereafter; internal derangement of the right knee knee, rated as 10 percent disabling effective April 1, 1995 to November 18, 2013 under Diagnostic Code 5257 and under Diagnostic Code 5260 thereafter; and trochanteric pain syndrome, rated as 10 percent disabling effective February 23, 2016. 38 C.F.R. § 4.16(a)(1). In this case, the Veteran was assigned a combined evaluation of 70 percent from November 6, 2013 to November 18, 2013 and a combined evaluation of 90 percent from November 18, 2013 to February 23, 2016. The Board finds, however, that the Veteran's service-connected disabilities arise from disabilities of one or both upper or lower or one or both lower extremities and affect a single body system, and thus may be considered as one disability, such that he meets the schedular criteria for a TDIU effective November 6, 2013. 38 C.F.R. § 4.16(a)(2). The August 2014 TDIU application reveals that the Veteran worked as a self-employed tax preparer and has not worked full-time since March 2012. However, the Veteran a reported that he has not had a consistent job since his discharge from service. VA medical records reflect that the Veteran has repeatedly complained of back, knee, and hip pain, as well as knee instability symptoms that interfere with daily functioning since November 2013. The evidence also shows that the Veteran has complained of difficulty grasping and holding items due to his bilateral carpal tunnel syndrome and uses a wheelchair or cane/walker to ambulate. VA medical records from March 2014 to April 2016 document complaints of worsening right-sided hip pain radiating down his leg and increasing numbness and weakness in his legs that result in falls. Likewise, in November 2013 and May 2014 Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance, the Veteran's physician noted that he needed a cane to ambulate but shuffled when utilizing a walker and cane, fell frequently when walking, had restrictions in grip and fine motor coordination, and relied on balancing against objects for steady movement. In a December 2014 VA examination report, the examiner determined that the Veteran had dyspnea at a Metabolic Equivalent of Task (METs) level of 5 to 7 that was due to multiple factors, including the Veteran's knee and back pain. The examiner opined that the Veteran's heart condition did not lead to any functional impairment, as he was able to perform his work after his heart attack. However, the examiner determined that the Veteran's back would lead to functional impairments such as sitting for extended periods and lifting items. The examiner determined that to perform a seated job, the Veteran would have to take frequent breaks and that he would not be able to perform a physically demanding occupation. Similarly, at a December 2015 VA thoracolumbar examination, the Veteran reported lower back pain exacerbated with prolonged walking, lifting, bending, and taking stairs. An April 2016 VA examination report reflects that the Veteran had minimal ability to walk without a walker, had developed progressive right leg weakness and paresthesias in both legs, and required the regular use of a wheelchair. At the November 2017 Board hearing, the Veteran also reported that due to his bilateral carpal tunnel syndrome he had difficulty with typing, using the computer, dialing the telephone, and gripping and grasping items. Resolving all doubt in the Veteran's favor, the Board finds that since November 6, 2013, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Given his work history as a paralegal in service and as a tax preparer after service, level of education, and the nature of his service-connected disabilities, the evidence suggests that he would be incapable of performing the acts required for employment. See Van Hoose, 4 Vet. App. at 363. It is unlikely that he would find a work environment that did not require sedentary work with frequent breaks and did not require use or manual dexterity of either hand, lifting and holding objects, or typing. Specifically, the Board finds that the symptoms described by the Veteran, and noted by the examiners, due to his multiple service-connected disabilities render him unemployable. To the extent the record suggests the Veteran is capable of employment due to his previous sedentary job, the Board finds that the severity of his service-connected disabilities resulted in the Veteran quitting this job and renders him unlikely to turn that endeavor into substantially gainful employment. The Board also acknowledges that VA examiners did not find that the Veteran's multiple service-connected disabilities rendered him totally occupationally and socially disabled. However, these examiners did not consider the combined effects and symptoms of the Veteran's service-connected disabilities. Furthermore, applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In light of the above, the Board finds that the evidence of record supports the grant of TDIU due to service-connected disabilities since November 6, 2013. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). SMC The Veteran contends that SMC for aid and attendance is warranted as he needs assistance with daily living due to his service-connected disabilities, including his back, knee, and hip conditions, bilateral carpal tunnel syndrome, and heart disease. He asserts that due to these conditions, he has difficulty with balance and he falls frequently due to his right leg giving away. He regularly uses a wheelchair and cane to move around. He reports that he needs assistance with bathing, getting off the floor if he falls, and getting in and out of bed. He also needs occasional help getting dressed due to difficulty bending. The Veteran also states that due to his hand pain and accompanying cramping, he has trouble dialing the telephone, unlocking doors, grabbing food from the refrigerator, and frequently drops things. See November 2017 Board Hearing Transcript. SMC is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; and the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a). In December 2013, the Veteran submitted a November 2013 Aid and Attendance/Housebound Form completed by his primary care physician. On that form, the physician stated that the Veteran's arthritis, heart condition, and PTSD restricted his ability to function. He reported that the Veteran could no longer perform house duties and could no longer cook, could not drive, had difficulty walking with or without his walker, had difficulty grasping and holding items, and needs help with bathing. The physician also indicated that the Veteran's legs are too weak to walk more than 20 feet without falling and that he uses two canes to ambulate. See December 2013 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. Similarly, the Veteran submitted a May 2014 Aid and Attendance/Housebound Form completed by the same primary care physician. On that form, the physician documented diagnoses of chronic back pain, bilateral carpal tunnel syndrome, osteoarthritis of the bilateral knees, coronary artery disease, and hypertension. He noted that the Veteran presented with an antalgic gait and that his knees, chronic back pain, bilateral carpal tunnel syndrome, and coronary artery disease restrict his activities and functions. The Veteran could not prepare his own meals. He needed assistance with bathing and he could not stand in a bathtub. The Veteran struggled with grip, balance, and fine motor coordination due to his back, knees, and bilateral carpal tunnel syndrome. He also reiterated the limitations documented on the December 2013 Examination form. The Board acknowledges that the evidence does not establish that the Veteran needs assistance in all of the activities indicated in the regulation and that the record, including the December 2013 and May 2014 Aid and Attendance/Housebound Forms, document other serious, nonservice-connected health conditions. However, in light of the private physician's finding that the Veteran did require, as a result of his service-connected disabilities, aid and attendance to accomplish at least some of the relevant activities-a finding that is supported by observations made by the multiple VA examiners and VA treatment records-the Board finds that the evidence relevant to this claim is in equipoise. Accordingly, entitlement to SMC based on the need for aid and attendance of another person is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the above finding renders the question of whether the Veteran is entitled to SMC at the housebound rate moot, as SMC based on the need for aid and attendance is the greater monetary benefit. Compare 38 U.S.C. § 1114(l) with 1114(s). ORDER A total disability rating based on individual unemployability due to service-connected disabilities is granted from November 6, 2013. SMC based on the need for aid and attendance of another person is granted. REMAND The Veteran contends that service connection for a psychiatric disorder is warranted as a result of his duties in service. He specifically asserts that during service he witnessed racial riots aboard his ship and the shooting of a child during a stop in Philippines. He also reports that he discovered information about a murder committed by a fellow service member and his friend's accidental death. See December 2013 Statement in Support of Claim for PTSD and November 2017 Board Hearing Transcript. Post-service treatment records show diagnoses of and treatment for major depression, generalized anxiety disorder, panic disorder, adjustment disorder with anxiety and depression, and PTSD. The Veteran has not yet been afforded a VA examination in connection with his service connection claim for an acquired psychiatric disability. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the Veteran's reports attributing his current condition to service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of the claim. See McLendon, 20 Vet. App. 79, 81 (2006). Updated VA and private treatment records should also be requested on remand. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, including VA or private, who has treated him for his conditions. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. Additionally, obtain VA treatment records from April 2016 to present, if available. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA mental disorders examination. The Veteran's claims file, including a copy of this Remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. Based on this review, the examiner should address each of the following questions: a. Identify all currently diagnosed mental health disabilities. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from November 2013 onward. The psychiatric disorder need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. The Board notes that the record shows past diagnoses of major depression, generalized anxiety disorder, panic disorder, adjustment disorder with anxiety and depression, and PTSD. All of these disorders should be considered and discussed, in addition to any other disorders that may be found. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that major depression is not a current disability, then the explanation should include a discussion of the medical records, as well as the Veteran's lay statements regarding his condition. If the examiner determines that any prior diagnosis cannot be validated, she or he should explain why. b. With respect to each diagnosed psychiatric disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability arose during service or is otherwise related to any incident of service. Please explain why or why not. i. If a diagnosis of PTSD is found, opine as to whether the Veteran's PTSD is related to his contended stressor of learning about witnessing racial riots or a murder, learning of a murder, or learning of his friend's accidental death. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs