Citation Nr: 21004582 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-13 055 DATE: January 27, 2021 ORDER Entitlement to a total rating based on individual unemployability due to a service-connected disability (TDIU) prior to December 15, 2015, is granted. Entitlement to a TDIU from December 15, 2015, is moot and is dismissed. REMANDED Entitlement to service connection for sleep apnea, to include as due to service-connected post-traumatic stress disorder (PTSD), is remanded. Entitlement to service connection for colon cancer is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran had a combined rating of at least 70 percent, with one disability rated 40 percent or higher; and, he was unable to obtain and maintain gainful employment as a result of his service-connected disabilities. 2. Since December 15, 2015, the Veteran has been in receipt of a 100 percent rating for PTSD and his other service-connected disabilities, without consideration of his PTSD, do not prevent him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU prior to December 15, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § 4.16 (2019). 2. The claim for entitlement to a TDIU from December 15, 2015, is moot. Vettese v. Brown, 7 Vet. App. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1967 to August 1969, to include service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions from September 2010 and December 2013 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. This case was previously before the Board in October 2019, at which time the issues on appeal were remanded for additional development. This case has been returned for further appellate action. TDIU The Veteran has asserted that he was unable to work due to his service-connected disabilities, primarily his PTSD. For the entire period on appeal, the Veteran had a combined rating of at least 70 percent, with one disability rated 40 percent or higher. Therefore, the Board finds that the Veteran met the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16 (2019). The question at issue is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a) (2019). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2019); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence of record indicates that the Veteran worked off and on in factories from 1969 to 1980, and thereafter worked collecting and selling scrap metals until April 2009. The Veteran has a G.E.D and attended one and a half years of junior college. In August 2012, the Veteran was afforded a VA examination for PTSD. At that time, the VA examiner assessed that symptoms of the Veteran’s mood disorder included difficulty in establishing and maintaining effective work and social relationships and an inability to establish and maintain effective work relationships. In a February 2015 Disability Benefits Questionnaire (DBQ) from a private provider, Dr. E.T. assessed that the Veteran was unable to work. Dr. E.T. further assessed that the Veteran’s symptoms of difficulty concentrating, generalized anxiety with occasional panic attacks, short-term memory loss, flashbacks and intrusive thoughts, insomnia and other sleep disturbance, overwhelming feelings of anger and sorrow with crying spells, being withdrawn and isolative, and bouts of moderately severe depression caused severe social, personal, and occupational impairment. During the May 2019 Board hearing, the Veteran testified that he had heightened anxiety while working in factories because the workplace noises sounded like being in a firefight. The Veteran also testified that he quit his job and started picking up and selling cans because he was more comfortable. The Veteran further testified that he picked up cans for about 20 years, but that the money he made was only enough to get by. Based on the foregoing, the Board finds that prior to December 15, 2015, the Veteran’s service-connected PTSD prevented him from securing or following gainful employment consistent with his education and experience. In that regard, the Veteran’s employment of working in factories was severely hindered by his distressing thoughts that related workplace noises to firefights in Vietnam and his ability to establish effective relationships with others. Of significance, during that time, the Veteran’s job of collecting and selling scrap metal was documented as only brining in approximately 300 dollars per month. As such, the record does not reflect that the Veteran had substantially gainful employment, income above the poverty level, by performing that type of work. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to a TDIU prior to December 15, 2015 is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran was awarded a rating of 100 percent for his PTSD beginning December 15, 2015. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Generally, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a combination of disabilities pursuant to the rating schedule, there is no need, and no authority to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent rating does not always render the issue of a TDIU moot. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court determined that a separate TDIU rating predicated on one disability may be awarded if that disability is not ratable at the schedular 100 percent level. However, a separate TDIU rating cannot be awarded based on one service-connected disability if the Veteran is already receiving a 100 percent schedular rating for that disorder. Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the Veteran has been awarded a 100 percent rating for PTSD, effective December 15, 2015. The Veteran has reported that his PTSD is the primary disability that impacts his ability to work. Additionally, the Veteran is not service-connected for any other disabilities that alone, without consideration of his PTSD, prevent him from obtaining and maintaining gainful employment. Therefore, the findings in Bradley are not applicable in this case, and the issue of entitlement to a TDIU from December 15, 2015, is moot as the Veteran has been in receipt of a schedular 100 percent rating for PTSD since that time. REASONS FOR REMAND In the October 2019 Board remand, the Board directed that the Veteran be afforded VA examinations to determine the nature and etiology of his sleep apnea and his colon cancer, to include whether sleep apnea was caused or aggravated by his service-connected PTSD. A review of the record shows that the Veteran was afforded the directed VA examinations in September 2020. However, the Board finds that the September 2020 VA medical opinions are inadequate. In this regard, the examiner failed to provider an opinion regarding whether the Veteran’s sleep apnea was aggravated by his PTSD. The examiner also specifically noted that there was no scientific literature that supported a link between exposure to herbicides and the development of colon cancer. However, the examiner did not consider the May 1990 report from the Special Assistant to the Secretary of the Department of Veterans Affairs which concluded that a review of the scientific literature made it reasonable to conclude that it was at least as likely as not that there was a relationship between exposure to Agent Orange (AO) and various health problems, to include colon cancer. As the medical opinions obtained are inadequate, they cannot serve as the basis of a denial of entitlement to service connection. Therefore, the Board finds that the development conducted does not adequately comply with the October 2019 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, additional medical opinions should be obtained before a decision is made regarding the remaining issues on appeal. These matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to an examiner with sufficient expertise to provide an addendum medical opinion regarding the nature and etiology of the Veteran’s sleep apnea. The examiner must review the claims file, and note that review in the report. Based on a review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s sleep apnea was caused or aggravated (chronically worsened) by a service-connected disability, to specifically include PTSD. In forming the opinion, the examiner should specifically address the opinions of the June 2012 VA examiner and Dr. E.T., in February 2015, which found sleep impairment to be a symptom of the Veteran’s mental health diagnosis. A detailed rationale must be provided for all opinions expressed. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinions. 2. Forward the Veteran’s claims file to an examiner with sufficient expertise to provide an addendum medical opinion regarding the nature and etiology of the Veteran’s colon cancer. The examiner must review the claims file, and note that review in the report. Based on a review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s colon cancer is etiologically related to his active service, to include exposure to herbicides sustained therein. In forming the opinion, the examiner must specifically address the conclusions set forth, pertaining to any link between Agent Orange and colon cancer, in the May 1990 report from the Special Assistant to the Secretary of the VA. A detailed rationale must be provided for all opinions expressed. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinions. 3. Confirm that the medical opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, Associate Counsel 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.