Citation Nr: 21002859 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-24 540 DATE: January 19, 2021 ORDER A total disability rating due to individual unemployability (TDIU) effective September 21, 2011, is granted. REMANDED The claim of entitlement to service connection for a cervical spine disability is remanded. The claim of entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran’s PTSD causes him to be unemployable. CONCLUSION OF LAW The criteria are met for a TDIU effective from September 21, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to March 1988. This appeal is from an October 2012 rating decision. Most recently, in March 2020, the Court of Appeals for Veterans Claims (Court) vacated the Board’s October 2018 denial for service connection for a cervical spine disability. As per the Court’s Order, a medical opinion must be obtained, as discussed in more detail in the Remand section, below. In November 2019, the Board remanded the claims of entitlement to service connection for hypertension and to a TDIU as inextricably intertwined with other disabilities that have since been granted service connection. After review of the record, the Board finds that the claim for hypertension must be remanded again, as discussed in the Remand section, but that the TDIU claim may be addressed on the merits. A TDIU effective September 21, 2011, is granted. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The Veteran’s claim was received February 22, 2012. His combined rating, since prior to receipt of his claim, is 70 percent. His service-connected disabilities are PTSD (50 percent), lumbosacral strain (20 percent), bilateral glaucoma (20 percent), and tinnitus (10 percent). He therefore meets the schedular requirements for the entire period on appeal. The remaining inquiry is whether his service-connected disabilities preclude employment. The record shows that he has a high school diploma, and that he had a two-year electrical apprenticeship that concluded in 1999. His work following service consisted entirely of electrician work. The record shows that he has been granted disability benefits from SSA (Social Security Administration) based upon an acquired psychiatric disability and a personality disorder. The Board notes that the Veteran is service connected for PTSD, an acquired psychiatric disability, and he is not service connected for a personality disorder, for which service connection is controlled by specific factual circumstances. The record does not consistently show that he has been diagnosed with a personality disorder; indeed, the July 2012 and February 2020 VA examinations, upon which this decision is based, do not show a personality disorder. Given the disparity among clinicians, the Board resolves all doubt in his favor, and finds that all his mental health symptoms are related to his service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). The SSA found the Veteran to be totally disabled due to his mental health disability effective from September 21, 2011. SSA found his disability to be severe, and indicated that evaluation of his physical impairments was not necessary in order to establish his disability. The SSA decision noted: that the Veteran exhibited pathologically inappropriate suspiciousness, including reporting that he did not trust anyone, that he considered other people to be enemies until proven otherwise, and that he does not get along with authority figures; that he mostly struggled with depressed mood, insomnia, limited energy, isolative behavior, and diminished ability to enjoy pleasurable activities; that his disabilities cause marked difficulties in performing activities of daily living and in social functioning, and that the record showed he only bathed or changed his clothes once per week; and, that he experienced sad mood, irritability, periods of violence, outbursts of anger, difficulty in establishing relationships and handling stress, impaired impulse control, hypervigilance, and suspiciousness. The July 2012 VA examination report supports SSA’s findings. The examiner found him to have deficiencies in most areas, including employment, and that his symptoms caused depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, inability to establish relationships, difficulty in adapting to stress, suicidal ideation, and impaired impulse control. At the February 2020 VA examination, the Veteran’s symptoms were, for the most part, the same as they were in July 2012: suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The above evidence clearly shows that the Veteran’s PTSD affects his ability to mentally and physically perform work activities. He has frequent panic attacks, memory trouble, and interpersonal difficulties, which would affect his ability to work consistently with other people, as well as disturbance of motivation, sleep impairment, memory loss, impaired judgment, and impaired impulse control, which would interfere with his ability to safely performing the physical aspects of being an electrician. The Board notes that the August 2016 VA examiner opined that the Veteran’s back prevents manual labor that would require repetitive bending and lifting, but that he could perform jobs that would let him sit. While this is probative to this issue, the Board does not find that it is necessary in order to establish TDIU. The Veteran’s PTSD prevents both mental and physical aspects of working, whereas it appears that the back only prevents physical aspects. Further, granting the Veteran a TDIU based upon a single disability is beneficial to the Veteran, as it increases the possibility of being granted SMC (special monthly compensation). As of this decision, he does not meet the criteria for SMC at the housebound level, as his other service-connected disabilities do not result in a combined rating of 60 percent or higher exclusive from his PTSD rating. See 38 C.F.R. § 3.350(i). However, he has appealed the ratings that have been assigned to newly service-connected PTSD and glaucoma, which have not been acted upon. As mentioned, the Veteran’s claim was received February 22, 2012. As a claim for TDIU is considered an increased rating claim, the Board may assign an effective date up to one year preceding receipt of the claim, if it is factually ascertainable that the increase occurred in that time. 38 C.F.R. § 3.400(o). Here, the Board finds that it is factually ascertainable from the record that he met the criteria as of September 21, 2011, which is when SSA found that he last had employment, and their effective date of disability. The Board notes this decision was within a year of the July 2012 VA examination, which also showed the Veteran’s mental health disability precluded working. In sum, based on a review of the record, TDIU is granted effective from September 21, 2011. REASONS FOR REMAND 1. The claim of entitlement to service connection for a cervical spine disability is remanded. This claim was remanded to the Board by the Court to obtain a medical opinion as to whether the Veteran’s neck disability is related to an assault in service. 2. The claim of entitlement to service connection for hypertension is remanded. The Veteran asserts that his hypertension is related to his PTSD. He has not been provided a VA examination, which shall be accomplished on remand. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completion of the above, schedule the Veteran for an appropriate examination for a report on whether it is as likely as not (50/50 probability or greater) that any neck disability is related to service. The examiner is asked to review the record prior to the examination and to elicit from the Veteran a detailed description of the injury in service. The record shows the Veteran was hit in the face with a blunt object and knocked out for approximately 20 seconds. The examiner is asked to opine on whether any neck disability is related to that injury. All opinions must be accompanied with explanation. 3. After completion of directive 1, forward the claims file to an appropriate examiner for a report on whether it is as likely as not (50/50 probability or greater) that hypertension is caused or aggravated by the Veteran’s service-connected acquired psychiatric disability. The examiner is asked to review the record and to conduct a search of the relevant literature prior to opining. It is up to the VA examiner’s discretion as to whether a physical examination is required in order to render the requested opinion; if so, the examiner is asked to notify the scheduling authority. The examiner is asked to consider whether hypertension is caused or aggravated by PTSD, including by any medication he takes to treat his symptoms. “Aggravated” means to cause any increase in severity that is beyond the normal progression of the disability. All opinions must be accompanied with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.