Citation Nr: 21001315 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 11-04 622 DATE: January 7, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 2013 is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the U.S. Army from January 1996 to June 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Board remanded the issue of entitlement to a TDIU to obtain an opinion from the VA Director of Compensation Services to determine whether a TDIU on an extraschedular basis was warranted. That development is complete, and this matter is now before the Board for appellate review. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 2013 is remanded The Veteran contends his service-connected disabilities have rendered him unable to work. See Veteran’s Correspondence dated Feb. 2011; VA Form 21-8940 dated Feb. 2020. As an initial matter, the Board notes that the Veteran has been incarcerated since February 2013 after conviction of a felony. As a TDIU cannot be assigned during a period of incarceration for a felony, Board’s consideration of the Veteran’s entitlement to a TDIU is limited to the period prior to his incarceration. 38 U.S.C. § 5313(c) (“[t]he Secretary shall not assign to any veteran a rating of total disability based on the individual unemployability of the veteran resulting from a service-connected disability during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.”). Prior to February 2013, the Veteran was service-connected for the following disabilities: gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS) at a 30 percent rating; a mood disorder associated with right tarsal tunnel syndrome with peroneal neuropathy and complex regional pain at a 30 percent rating; right tarsal tunnel syndrome with peroneal neuropathy and complex regional pain at a 20 percent rating; bilateral plantar fasciitis at a 10 percent rating; bilateral tinnitus at a 10 percent rating; bilateral hearing loss at a noncompensable rating; allergic rhinitis at a noncompensable rating; hemorrhoids at a noncompensable rating; and left tarsal tunnel syndrome at a noncompensable rating. The Veteran’s combined disability rating was at 70 percent. See Dec. 2012 Rating Decision Codesheet. In the April 2017 decision, the Board found the Veteran did not meet the TDIU schedular threshold but remanded the claim for extraschedular consideration. Pursuant to the April 2017 remand, the claim was referred to the VA Director of Compensation Services. In a September 2020 memorandum, the Director determined the Veteran’s service-connected disabilities did not render him unemployable. See Sept. 2018 VA Memorandum. In so finding, the Director noted that while the Veteran was frequently hospitalized, resulting in work absences, these hospitalizations were for non-service-connected conditions. Id. The Director further noted that the preponderance of the evidence did not indicate the Veteran was unable to perform tasks to the level rendering employment impossible. Id. The Board finds this highly probable evidence against a finding of a TDIU on an extraschedular basis. However, upon review of his service-connected disabilities, the Board finds the Veteran met the schedular threshold for TDIU eligibility prior to February 2013. The Veteran’s right tarsal tunnel syndrome disability and his mood disorder associated with his right tarsal tunnel syndrome are of the same etiologic origin and are therefore considered “one disability” for the purposes of TDIU eligibility. See 38 C.F.R. § 4.16. When combined as one disability, the Veteran’s right tarsal tunnel syndrome and associated mood disability were rated at 40 percent together, and his total combined rating was at 70 percent. See Dec. 2012 Rating Decision Codesheet. Thus, the Veteran met the schedular criteria for a TDIU prior to February 2013. See 38 C.F.R. § 4.16. Nevertheless, and although he met the schedular threshold for TDIU eligibility, the evidence of record is conflicting as to the impact of the Veteran’s service-connected disabilities on his ability to secure and maintain substantially gainful employment prior to incarceration. Accordingly, although the Board regrets further delay, remand is necessary to determine whether a TDIU is warranted. The Veteran contends he left his past four places of employment because he was unable to work due to hospitalizations resulting from his service-connected disabilities. See Veteran’s Correspondence dated Feb. 2011; VA Form 21-8940 dated Feb. 2020. Regarding prior employment, the Board finds the evidence unclear as to the impact of the Veteran’s service-connected disabilities on his ability to maintain gainful employment from approximately 2007 until his incarceration in February 2013. The evidence shows the Veteran was employed in a series of jobs from 2007 to 2013. The record also shows he left the second of these positions the same month he started the third position, indicating he may have left to start a new job, and not due to health-related difficulties. VA Form 21-8940 dated Feb. 2020. Additionally, though the Veteran asserts he left his most-recent job due to his disabilities, the end date corresponds with his incarceration, rendering him unable to work regardless of his service-connected disabilities. See id. Therefore, the Board finds the evidence unclear as to the reason the Veteran left each of these positions, and as such, is insufficient to show the impact of his service-connected disabilities on his past employment. With regard to hospitalizations, the record shows frequent ER visits and/or hospitalizations from approximately 2007 to 2013. See generally 2010 Medical Treatment Records. However, as the evidence is conflicting as to whether these hospitalizations resulted from the Veteran’s service-connected disabilities, the effect of hospitalizations due to service-connected disabilities on the Veteran’s employment is unclear. While some hospitalizations appear to have been a result of the Veteran’s service-connected disabilities, several appear to result from unrelated conditions. Notably, the Veteran was frequently hospitalized for abdominal pain from 2007-2013, which he asserted was due to his service-connected GERD and/or IBS. But post-admission medical records determined that the abdominal pain was likely due to chronic post-cholecystectomy pain or hepatic steatosis. See Jul. 2009 Medical Treatment Record; Aug. 2009 Medical Treatment Record; Nov. 2009 Medical Treatment Record. In subsequent lay statements, he contended that his service-connected gastrointestinal disabilities caused common bile duct and hepatic bile duct problems. See Veteran’s Correspondence dated Feb. 2020. However, while the Veteran is competent to describe his symptoms and report the stated reason for hospitalization, he is not competent to diagnose the cause of these conditions, nor is he competent to offer an opinion etiologically connecting his GERD or IBS to these bile duct conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). The Veteran also experienced hospitalizations for a variety of other non-service-connected conditions during this period of time. See, e.g., Aug. 2012 Report of Hospitalization (hospitalization for conversion disorder); July 2012 Report of Hospitalization (hospitalization for depression and pedophilia); June 2012 Medical Treatment Record at 1(noting hospitalization for digestive medical issues, heart problems, and post-operative pneumonia likely related to PTSD); Nov. 2011 Medical Treatment Record at 3 (noting hospitalization for “inter-related” IBS, chronic pancreatitis, diverticulitis, biliary dyskinesia, and post-operative pneumonia). The Veteran asserted his GERD/IBS impacted his vocal cords, pancreas, and bile ducts, as well as caused diverticulitis. See Veteran’s Correspondence on VA Form 9 dated Feb. 2020. However, and as stated above, the Veteran is not competent to offer an opinion on the etiology of these conditions. See Jandreau, 492 F.3d 1377. Moreover, even if the Veteran’s GERD/IBS caused secondary disabilities, because VA has not determined that such disabilities are service-connected, the effects of these conditions, such as hospitalization, cannot be considered in determining TDIU eligibility. See June 2018 Rating Decision Codesheet; see also Dec. 2008 Rating Decision (denying service connection for vocal cord dysfunction, which was not timely appealed, and therefore became final). Additionally, the Veteran listed non-service-connected disabilities in his lay statements asserting entitlement to a TDIU. In his February 2020 VA Form 21-8940, he contended that he is entitled to a TDIU because of his complex regional pain syndrome, reflex sympathetic dystrophy, GERD, IBS, laryngopharyngeal reflux disease (LPRD), reflux esophagitis, diverticular disease, and dysautonomia. See VA Form 21-8940 dated Feb. 2020. In February 2020 lay statements, he further asserted fibromyalgia and PTSD contributed to his unemployability. See Veteran’s Correspondence on VA Form 9 dated Feb. 2020; Veteran’s Correspondence dated Feb. 2020. However, as of February 2013, the Veteran was not service-connected for LPRD, diverticular disease, dysautonomia, fibromyalgia, or PTSD. See Dec. 2012 Rating Decision Codesheet; see also Dec. 2008 Rating Decision (denying service connection for fibromyalgia, which was not timely appealed, and therefore became final). Accordingly, the Board finds the evidence of record unclear and conflicting as to the effect of the Veteran’s service-connected – and only his service-connected – disabilities on his employability. Therefore, further development is necessary to determine whether the Veteran’s service-connected disabilities rendered him incapable of working or prevented him from completing the physical and mental tasks required for employment prior to his incarceration. Thus, remand is necessary to obtain a new VA examination and opinion to assess the effects of solely the Veteran’s service-connected disabilities on his ability to have obtained and sustained substantially gainful employment prior to February 2013. As the Veteran is currently incarcerated, the Board further notes that although VA’s ability to provide examinations to incarcerated veterans may be limited by the circumstances of the incarceration, VA must “tailor [its] assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans.” Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (citing Wood v. Derwinski, 1 Vet. App. 190, 192 (1991)). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the effect his service-connected disabilities would have had on his ability to obtain or maintain substantially gainful employment prior to his February 2013 incarceration. The entire claims file should be made available to the examiner. The examiner should address how the Veteran’s service-connected disabilities would have affected him prior to his February 2013 incarceration in a work environment consistent with his past work and educational experience. The examination report should also indicate if there is any form of employment that the Veteran could have performed during this period, and if so, what type. A written copy of the report should be associated with the claims file. The examiner is reminded that only the effect of the Veteran’s service-connected disabilities may be considered in evaluating the Veteran’s ability to work. The AOJ must make reasonable efforts to accommodate the Veteran with respect to his current incarceration when scheduling the VA examination, to the extent possible, in accordance with Bolton v. Brown. See Bolton, 8 Vet. App. at 19; see also VA Adjudication Procedure Manual, Part III, Subpart iv, Chapter 3, Section F.2.d. If the VA examination simply cannot be conducted due to the Veteran’s incarceration, the AOJ should provide documentation of its attempts to obtain the medical examination, including any coordinating efforts with prison authorities. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Gomez, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.