Citation Nr: 21066353 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-23 472 DATE: October 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), from August 17, 2016, is granted. REMANDED Entitlement to service connection for a kidney disorder, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a lung disorder, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a thyroid disorder, to include as due to herbicide exposure, is remanded. Entitlement to a TDIU prior to August 17, 2016, is remanded. Entitlement to special monthly compensation (SMC) is remanded. FINDING OF FACT From August 17, 2016, the Veteran's service-connected disabilities meet the schedular criteria for a TDIU, and the effects of his service-connected posttraumatic stress disorder rendered him unemployable. CONCLUSION OF LAW The criteria for TDIU from August 17, 2016, have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1968 to December 1972. This matter comes before the Board of Veterans' Appeal (Board) on appeal from June 2014 and October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to a TDIU from August 17, 2016 The Veteran contends that he is unable to work as a result of his service-connected disabilities, and namely his service-connected posttraumatic stress disorder (PTSD). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from 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. Id. The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In order for a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 361. In Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA's duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Id. at 1354. In this case, the Veteran is service-connected for PTSD, rated as 50 percent disabling from June 11, 2012, and as 70 percent disabling from August 17, 2016. The Veteran is also service connected for tinnitus, rated as 10 percent disabling from April 21, 2016, and bilateral hearing loss, rated as noncompensable from April 21, 2016. The Veteran's combines rated is 50 percent from June 11, 2012, 60 percent from April 21, 2016, and 70 percent from August 17, 2016. The Veteran filed the instant claim for TDIU in May 2015. As indicated above, the Veteran's meets the schedular requirements for entitlement to a TDIU from August 17, 2016. The period prior to August 17, 2016, will be discussed in the remand section below. The Veteran mainly contends that he is unemployable due to his service-connected PTSD. On his May 2015 VA Form 21-8940, Application for TDIU, the Veteran reported that he last worked in November 2013 as a mechanic. He reported that he left his last employer as a result of his service-connected disability and had not tried to obtain other employment. He had completed high school but had no additional education or training. A VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, completed by the Veteran's former employer in September 2015 indicates that the Veteran worked for that employer from 1975 to November 2013 as a maintenance troubleshooter. It was noted that he took an early retirement from his employer. On VA psychiatric examination in September 2016, the Veteran reported that he was distant and detached, and stayed to himself most of the time. He got angry intermittently with anger outbursts. He had no friends and isolated himself, even from his own children and grandchildren. With respect to work history, the Veteran reported that he stopped working in 2013 due to a neck injury. Prior to that, he had significant conflicts at work with some fistfights. He had conflicts with both his coworkers and supervisors. The Veteran also reported struggles with nightmares, intrusive thoughts, irritability, insomnia, and depressed mood. He isolated himself and had chronic conflicts with others. The examiner indicated that the following symptoms applied to the Veteran's diagnosis: depressed mood, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner indicated that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment and thinking. VA treatment records from the period on appeal indicated continued issues with insomnia, nightmares, depression, suicidal ideation, anxiety, concentration problems, and irritability. In a November 2019 statement, the Veteran reported that his focus and attention span were very short. It was hard for him to remember names and tasks and he had difficulty finishing a job. He noted that he lost track of direction while driving. During his February 2021 Board hearing, the Veteran reported that he last worked as a facility mechanic performing maintenance and repair for a business. He worked with the same employer for 39 years. He noted that his PTSD impacted his ability to get along with others and that he got into a few physical altercations at work. He also noted that he got into fights with others outside of work. The Veteran also indicated that he was encouraged by his employer to retire early and that they had encouraged him to see a psychiatrist. The Veteran also endorsed difficulties with focus, concentration, and memory. He did not like being around others, hardly left the home and did not socialize. He noted that very few people would work with him at his previous employer and he mainly worked by himself. The evidence discussed above, including examinations and lay statements, supports a finding that it is at least as likely as not that the Veteran is unable to perform work-related tasks due to symptoms stemming from his service-connected PTSD such as irritability, inability to get along with others, social isolation, and problems with focus. As indicated above, the record indicated that the Veteran was having difficulty performing his work duties that lead to him to take an early retirement in 2013. The Board acknowledges that the record reflects injury to the neck that impacted his ability to work; however, the findings of the 2016 VA examiner, as well as the Veteran's credible reports of his symptoms when he was work, indicate significant occupational impairment in that he would be unable to work with others and have severe problems with concentration, completing tasks, The impairments described in these records are incompatible with his previous work history of working as a mechanic/maintenance troubleshooter, which the Board notes was the only reported job the Veteran held since his discharge from service. There is no history of other employment, the Veteran is not educated beyond a twelfth-grade level, and there is no other additional education or training. Therefore, resolving all doubt in the Veteran's favor, the Board concludes TDIU is warranted as of the date the Veteran meets the criteria for a schedular TDIU, August 17, 2016. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a kidney disorder, to include as due to herbicide exposure, is remanded. 2. Entitlement to service connection for a lung disorder, to include as due to herbicide exposure, is remanded. 3. Entitlement to service connection for a thyroid disorder, to include as due to herbicide exposure, is remanded. The Veteran asserts that he is entitled to service connection for kidney, lung, and thyroid disorders, as he believes that these disabilities are related to service, to include his exposure to herbicides therein. With respect to the claimed kidney disorder, the Veteran also reported that he had experienced symptoms of a kidney disorder in services and began experiencing kidney stones in the 1970s. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). Service personnel records confirm that the Veteran served during the requisite period. Based on his service in the Republic of Vietnam, he is presumed to have been exposed to Agent Orange and other tactical herbicides. The claimed disorders are not among the listed disorders in 38 C.F.R. § 3.309(e). However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Given the post-service diagnoses of pulmonary nodules, thyroid nodules, and kidney stones/chronic kidney disease, as well as the Veteran's presumed exposure to herbicides in service, the Board finds that remand is warranted to afford the Veteran an examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale. 5. Entitlement to a TDIU prior to August 17, 2016 As indicated above, the Veteran does not meet the schedular criteria for entitlement to a TDIU prior to August 17, 2016. See 38 C.F.R. § 4.16. In the event that service connection is granted a kidney, lung, and/or thyroid disorder, ratings will be assigned for the disabilities that may change the Veteran's combined evaluation. The issue of entitlement to TDIU prior to August 17, 2016, is inextricably intertwined with the claims for service connection. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As the service connection claims are being remanded, the claim for TDIU must also be remanded. Moreover, although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the Veteran still does not meet the schedular criteria prior to August 17, 2016, after the remanded claims for service connection are remanded, the case should be referred to the Director of Compensation Service. Given the findings above, the Board finds that such a referral is warranted in the event that the schedular criteria for a TDIU prior to August 17, 2016 are still not met after the requested remand development has been completed. 6. Entitlement to SMC Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)). In this case, the Board has awarded a TDIU on the basis of the Veteran's service-connected PTSD; therefore, the matter of entitlement to SMC has been raised by the record. However, at this point there is no other separate disability rated as 60 percent or more disabling. Again, in the event that service connection is granted a kidney, lung, and/or thyroid disorder, ratings will be assigned for the disabilities that may provide a basis to award SMC. The issue of entitlement to SMC, therefore, is inextricably intertwined with the claims for service connection. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As the service connection claims are being remanded, the Board will also defer adjudication on the claim for SMC. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) to determine the nature and etiology of the claimed kidney disorder, thyroid disorder, and lung disorder. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all kidney, thyroid, and lung disorder(s). The examiner should address whether it is at least at likely as not that the Veteran's kidney, thyroid, and/or lung disorder(s) had its onset in service or within one year of discharge, or is otherwise related to service, to include as due to herbicide exposure therein. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. With respect to the claimed kidney disorder, the examiner should consider and address the Veteran's report of kidney symptoms in service and report of kidney stones since the 1970s. (Continued on the next page) The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 2. If, after development and readjudication of the service-connected claims above, the schedular criteria for TDIU continue to remain unmet prior to August 17, 2016, refer the Veteran's claim for a TDIU for the period prior to August 17, 2016, to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.