Citation Nr: 21062387 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-25 525 DATE: October 7, 2021 REMANDED Entitlement to a total disability rating for individual unemployability due to service-connected disorders (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1970 to March 1972. This appeal initially came to the Board from decisions issued by the Agency of Original Jurisdiction (AOJ) in March 2016 and April 2016. The first decision increased the rating assigned for service-connected plantar warts of the left foot from 10 percent to 20 percent and the second decision granted service-connected compensation for unspecified anxiety disorder, assigning a 30 percent rating, effective December 21, 2015. The Veteran appealed the failure to assign higher ratings for both disabilities. While both appeals were pending, the Veteran claimed that, due to his service-connected disabilities, he was unable to work, making the issue of TDIU part of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 448-49 (2009). In November 2019, the Board issued a decision, which increased the rating assigned for anxiety disorder to 70 percent, granted service connection for major depressive disorder, denied service connection for posttraumatic stress disorder (PTSD), denied a rating higher than 20 percent for service-connected plantar warts of the left foot, denied an effective date prior to December 21, 2015 for service connection for an acquired psychiatric disorder, denied an effective date prior to July 10, 2014 for the 20 percent rating for plantar warts of the left foot, and denied TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which, in December 2020, granted the parties Joint Motion for Partial Remand (JMR). According to the JMR, the parties acknowledged that the Veteran was not appealing the denial of higher ratings for anxiety disorder or plantar warts, the denial of an earlier effective date for service connection for an acquired psychiatric disorder, or the denial of an earlier effective date for the 20 percent rating assigned to his plantar warts. With respect to those claims, the parties agreed that the Court should dismiss the Veteran's appeal. The parties agreed that, only with respect to the denial of TDIU, the Board failed to provide an adequate explanation for its ruling. By granting the JMR, the Court vacated the denial of TDIU and returned that sole issue to the Board. In their JMR, the parties identified one specific criticism of the Board's TDIU analysis. The Board decision quoted one of the Veteran's statements to a VA examiner i.e., that his psychiatric symptoms had remained "about the same" to support a finding that his psychiatric symptoms did not worsen during the appeal period. In the JMR, the parties perceived a contradiction between, "[the Board's] determination that symptoms of Appellant's unspecified anxiety disorder remained consistent throughout the appeal period, such that entitlement to TDIU is not warranted, with its determination to award an increased rating for the unspecified anxiety disorder." This apparent contradiction can likely be resolved with a brief additional explanation. The increased rating claim for the service-connected psychiatric disabilities reached the Board from the appeal of the rating granted by the AOJ pursuant to its favorable resolution of the Veteran's initial claim for service-connected compensation for a psychiatric disorder. As the Board explained when denying the appeal seeking an earlier effective date for psychiatric compensation, the law did not authorize an effective date before the date of the receipt of his initial claim (December 21, 2015). See 38 U.S.C. § 5110(a). The Board granted an increased 70 percent rating based on reports of suicidal ideation, see 38 C.F.R. § 4.130, Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017), but, because the case came to the Board from the appeal of an initial rating, the increase did not necessarily require a finding that the Veteran had experienced an increase in the severity of his psychiatric symptoms during the relevant appeal period (December 21, 2015 to November 27, 2019). The ruling only required a finding that, during that period, the relevant psychiatric symptoms most closely approximated the criteria for a 70 percent rating. As is customary, however, the terms of the JMR permitted the Veteran to submit additional evidence and argument. The Veteran's attorney sent the Board a written argument in June 2021, along with the report of a vocational consultant which indicates, in the author's opinion, that symptoms of anxiety disorder and left foot plantar warts prevented the Veteran from securing and following a substantially gainful occupation. In his written brief, the attorney asks the Board to revisit its unfavorable credibility findings concerning certain statements in a written affidavit, signed by the Veteran in April 2017, which purport to describe the effects of service-connected disabilities on his employment. A reader whose only information about this case came from the attorney's argument might be left with mistaken the impression that the Board arbitrarily decided to disbelieve the Veteran's statements by exaggerating the significance of a small inconsistency between two assessments of the severity of the sleep impairment associated with his psychiatric disorder. In his affidavit, the Veteran wrote that he would, "average about three hours of sleep each night, despite taking my prescribed anxiety and sleep medications." He told the June 2019 VA examiner that he slept "four to six hours per night." The weakness of the attorney's argument is that it makes no attempt to address other inconsistencies between the Veteran's affidavit and the statements recorded in the progress notes prepared by his health care providers. On several occasions, the Veteran indicated that his medications effectively controlled his anxiety and that he was experiencing no trouble falling or staying asleep. There is an even clearer contradiction between the medical records and other statements the Veteran made in the same affidavit concerning the symptoms of his left foot plantar warts. Describing his regular podiatry appointments, at which a podiatrist usually debrided a lesion on the left foot, the Veteran wrote, "After a wart is removed, I have to keep pressure off my foot for at least two days before I can do any physical activity again." But dozens of the progress notes of the Veteran's treating podiatrist describe "immediate" improvement after wart removal, further indicating that, immediately after the wart removal, the Veteran was capable of ambulation without pain. Noting that the statements in the affidavit were prepared for the purpose of attempting to increase the sum of money he receives as compensation for his service-connected disabilities, see Cartright v. Derwinski, 2 Vet. App. 24, 25 (2015), the Board found the description of foot symptoms in the affidavit to be incredible. This unfavorable finding concerning the Veteran's credibility was essential to the decision to deny a disability rating higher than 20 percent for service-connected plantar warts. If the Veteran's attorney really had any confidence in the merits of his criticism of the Board's credibility findings, it seems likely that he would have at least attempted to appeal that ruling. The attorney further argues that, even if the Board maintains its earlier unfavorable findings, it is still appropriate to grant TDIU based on "the enclosed vocational assessment completed by [the consultant, which] did not consider the Veteran's statements at all, and provides probative evidence that [the Veteran] is unable to secure and follow substantially gainful employment due to his anxiety disorder." The consultant's report acknowledged that the Veteran worked as a heating and air conditioning (HVAC) mechanic for the U.S. Postal Service for more than two decades before he retired in 2005. For 21 years he worked on "third shift" which usually permitted him to perform his duties alone. In the consultant's opinion, symptoms of unspecified anxiety disorder would likely prevent the Veteran from concentrating effectively on his work or interacting appropriately with co-workers and supervisors. Psychiatric symptoms, the consultant explained, caused an "inability to remain focused on work tasks for two consecutive hours and to produce a minimal amount of work on the job . . ." The consultant also opined that, "there is no field of employment that would allow an employee to work in absolute isolation. Interaction with others is required to at least some degree in all substantially gainful employment, including unskilled sedentary work. Even employment that is primarily performed independently still requires some minimal degree of interaction with others and, furthermore, these interactions are expected to be appropriate and professional." According to the consultant, the Veteran's "tendency to isolate, anger and irritability, blunted affect, and subsequent difficulty establishing and maintaining relationships with others caused by his service-connected unspecified anxiety disorder would at least as likely as not preclude him from meeting the aforementioned vocational standards of appropriate interpersonal functioning." Unfortunately, the consultant's effort to support these conclusions is unpersuasive. The report quotes six documents which, according to the consultant, were "the most pertinent to this vocational determination." The six documents consist of four examination report questionnaires and two VA mental health treatment notes. They mention chronic sleep impairment, nightmares, suicidal ideation, an absence of social friendships outside of his immediate family, and a preference for solitary activities. But none of the quotations mention an inability to concentrate on a task for two consecutive hours. Nor do any of the quoted documents indicate that the Veteran would be incapable of occasional civil communication with colleagues and co-workers about the progress of his work. The consultant cited examination report questionnaires, dated May 2017 and June 2019, which indicated that the Veteran's psychiatric symptoms included "difficulty in establishing and maintaining effective work and social relationships" which is one of the criteria for a 50 percent disability rating under 38 C.F.R. § 4.130. But neither of the questionnaires identified an "inability to establish and maintain effective relationships" as one the Veteran's symptoms, even though it is one of the criteria for a 70 percent disability rating. Id. Based on its text and its position in the psychiatric rating schedule, the second symptom is best understood as experiencing the first symptom to an unusually severe degree that is, effective relationships are not merely difficult but impossible to establish. But the consultant's opinion seems to mistake endorsement of the first symptom ("difficulty in establishing . . . work relationships") with the inability to maintain "some minimal degree of interaction with others . . ." That conclusion is not consistent with a careful reading of the quoted examination reports i.e., an awareness of which symptoms the examiners noted and which symptoms they omitted. The consultant also failed to assess how important "work relationships" have been to the Veteran's previous work. Based on his description of his ability to work "third shift" as an HVAC mechanic for 21 years until he became eligible to retire, it seems reasonable to suppose that they were not particularly significant. In discussing the mental health records, the consultant also completely ignored the many progress notes suggesting that the Veteran was frequently able to control his anxiety by using medication and that his most severe symptom (suicidal ideation), which is the main reason his disability rating was increased to 70 percent, see Bankhead, 29 Vet. App. at 20, appeared only rarely. According to his mental health records, the Veteran denied experiencing suicidal ideation in April 2016, October 2016, November 2016, April 2017, August 2017, October 2017, January 2018, and October 2018. The Board cannot, however, decide the issue of TDIU at this time. Since the AOJ previously adjudicated the issue, new VA medical treatment records have been associated with the claims file. Some of these records relate to the psychiatric and plantar wart disabilities which form the basis of the Veteran's TDIU claim. In his July 2021 written argument, the Veteran's attorney waived the right to have the AOJ consider "the evidence submitted with this correspondence" before further review by the Board. The scope of this waiver does not include the most recently received VA treatment records, which were obtained by the AOJ and not received from the Veteran's attorney as part of his July 2021 correspondence. Since evidence pertinent to the issue of TDIU has been received which was not reviewed by the AOJ and under circumstances in which a waiver of initial AOJ consideration has not been received and may not legally be presumed, see 38 U.S.C. § 7105(e), the Board must remand the TDIU claim with instructions to issue a Supplemental Statement of the Case (SSOC). On remand, the AOJ should obtain a new medical opinion concerning the effects of the Veteran's service-connected left foot plantar warts. In November 2019, when the Board previously considered the TDIU issue, essentially all of the arguments of the Veteran's attorney in favor of a TDIU rating focused on the Veteran's psychiatric symptoms. The July 2021 written argument, however, also suggests a theory that left foot plantar warts could prevent regular work. Acknowledging the temporary success of the Veteran's regular podiatry treatments in eliminating his foot pain and permitting regular walking, the attorney wrote that, "due to the fleeting effectiveness of those treatments, the Veteran would not be able to walk even occasionally at least every other week, which would severely hamper his reliability to potential employers." The June consultant's report indicates that, "left foot plantar wart manifests with chronic pain that impacts his ability to stand, walk, ascend and descend stairs, and traverse uneven terrain." On remand, the AOJ should obtain a medical opinion attempting to assess the effects of the Veteran's left foot plantar warts during the week before his regular podiatry treatments. If possible, this opinion should be based on an in-person physical examination to be scheduled as closely as possible before one of the regular podiatry treatments. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran's VA treatment since December 2019. 2. Schedule the Veteran for a VA feet/skin conditions examination, which should be scheduled as soon as possible before one of the Veteran's regular podiatry appointments. The examiner should review the claims file and should pay special attention to the VA podiatry notes which indicate that, approximately every one or two months since December 2013 at the latest, the Veteran reported pain associated with a left plantar wart and that, during almost every appointment, the podiatrist debrided a hyperkeratotic lesion from the, "sub L 4th met head with palliative removal of nucleated center." It appears that each of the post-December 2013 podiatry notes indicates that, after this procedure, there was "immediate improvement with ambulation" without pain. However, the frequency of the need for these treatments suggests that, during the days or weeks immediately before each debridement, symptoms were more serious. In addition to the requested records review and in-person physical examination, the post-remand examiner should interview the Veteran about the history of his left foot symptoms and ask him to describe, if he remembers, his left foot plantar wart symptoms before he retired from the Postal Service in 2005. The examiner should also ask the Veteran about his work as an HVAC mechanic and inquire about how frequently, as part of that work, he was required to ambulate, to stand, to ascend or descend stairs, and to traverse uneven terrain. After completing the records review, in-person foot examination, and examination interview on the history of the relevant symptoms, the examiner should describe the effects of the Veteran's service-connected left plantar wart disability during the days before his regular podiatry treatments. In his or her report, the examiner should comment on the Veteran's ability to ambulate, the presence and severity of any pain, the Veteran's ability to stand, to ascend or descend stairs, and to traverse uneven terrain. IF THE REQUESTED FOOT EXAMINATION IS NOT SCHEDULED DURING THE WEEK BEFORE ONE OF THE VETERAN'S REGULAR PODIATRY APPOINTMENTS, THE AOJ SHOULD PREPARE A MEMORANDUM FOR THE CLAIMS FILE EXPLAINING WHY IT WAS UNABLE TO DO SO. 3. The AOJ must ensure that the examination report requested above complies with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. 4. Readjudicate the claim for a TDIU rating. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument before returning the file to the Board for further appellate consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.