Citation Nr: 21069242 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-40 939A DATE: November 17, 2021 ORDER A total disability rating based on individual unemployability (TDIU), due to service-connected posttraumatic stress disorder (PTSD), is granted. Special monthly compensation (SMC), pursuant to 38 U.S.C. § 1114(s), is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a compensable disability rating for service-connected gout, for the appeal period from September 2, 2010, is remanded. Entitlement to service connection for a respiratory disorder is remanded. The matter of whether the Veteran's correspondence received on October 13, 2004, constituted a valid notice of disagreement (NOD) is remanded. REFFERED ISSUES In a June 2019 decision, the Board of Veterans' Appeals (Board) noted that claims for hearing loss, loss of smile, headaches, and right-side facial numbness were raised in a June 2015 claim but had not been adjudicated by a Department of Veterans Affairs (VA) Regional Office (RO), even though the claims had been acknowledged by the RO in a September 2015 Notification Letter. Thus, the Board referred the claims to the Agency of Original Jurisdiction (AOJ) for proper adjudication. As these claims still have not been adjudicated, they are again referred to the AOJ for proper action. See 38 C.F.R. § 20.904(b) (continuing to provide for referral of unadjudicated claims). FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, evidence of record shows that his service-connected PTSD rendered him unable to obtain or maintain a substantially gainful course of employment during the pertinent appeal period. 2. A TDIU based on the Veteran's PTSD is warranted for the entirety of the pertinent appeal period for the PTSD claim, and a 60 percent combined rating for additional, independently rated service-connected disabilities has been in effect for the entirety of the pertinent appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU for the pertinent appeal period are met. 38 U.S.C. §§ 501, 1155, 5107; 38 C.F.R. §§ 4.15, 4.16. 2. The criteria for entitlement to SMC under 38 U.S.C. § 1114(s), for the pertinent appeal period, are met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to November 2002. The current appeal before the Board arose from November 2012 and September 2015 rating decisions by an RO. In the November 2012 decision, the RO implemented a Board decision which granted service connection for gout, and assigned a noncompensable disability rating for the disability, effective January 31, 2005. In the September 2015 decision, the RO, inter alia, denied entitlement to service connection for a respiratory condition. In a June 2019 decision, the Board, in pertinent part, granted a 20 percent rating for the Veteran's gout, effective from January 31, 2005 to September 2, 2010, and denied entitlement to a compensable rating for his gout as of September 2, 2010. The Board also denied entitlement to a disability rating higher than 70 percent for PTSD, and remanded the issue of entitlement to service connection for a respiratory condition to the AOJ for further evidentiary development. The Veteran appealed the Board's June 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued a Memorandum Decision which, in relevant part, vacated the Board's decision to the extent that it denied entitlement to a compensable rating for service-connected gout beginning September 2, 2010, and remanded the matter to the Board. Additionally, the Court exercised its discretion to remand matters of entitlement to a TDIU, to include for adjudication of entitlement to a TDIU based on a June 2015 higher rating claim for PTSD, and for a determination on the factual issue of whether correspondence filed by the Veteran in October 2004 constituted a valid NOD, and the matter of entitlement to SMC, to the Board for appropriate consideration. TDIU The Veteran contends that his service-connected PTSD has rendered him unable to obtain and maintain substantially gainful employment for the entirety of the appeal period under consideration. As the Court determined in its March 2021 Memorandum Decision, the matter of entitlement to a TDIU was reasonably raised as part and parcel of the Veteran's claim for a higher rating for PTSD filed in June 2015. Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 U.S.C. § 501; 38 C.F.R. § 4.16(a). Where entitlement is based on a single service-connected disability, the disability must be rated 60 percent or higher. For two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant's disabilities must be 70 percent or greater. Id. The ratings in effect for the Veteran's service-connected disabilities satisfy the requirements for consideration of a TDIU on a schedular basis. The central inquiry for determining entitlement to a TDIU is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Halstead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Turning to the evidence, the record indicates that the Veteran has not worked since his separation from active service. He contends that his PTSD has rendered him unable to secure or follow a substantially gainful occupation. In a prior March 2003 application for TDIU, on VA Form 21-8940, he noted that he had completed high school and that he had completed classes related to his military duties. During the course of his appeal for a higher rating for PTSD, he was afforded a VA-contracted examination in August 2015. His noted PTSD symptoms included panic attacks three time per week; near-continuous panic affecting his ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; impaired impulse control, such as unprovoked irritability with periods of violence; and persistent delusions or hallucinations. In particular, the report noted that he was extremely sensitive, that he became angry quickly, and that he isolated himself and was unable to deal with other people. He also had poor sleep, and was fatigued. The examiner concluded that the Veteran was unable to obtain or maintain work. After carefully considering the evidence of record, including the August 2015 VA-contracted examination, the Board finds that the evidence supports a finding that the Veteran's PTSD results in serious limitations in his mentality ability to perform work activities in an occupational setting. In reaching his determination, the Board recognizes that the ultimate matter of determining entitlement to a TDIU is the responsibility of a VA adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds that the realistic chances of the Veteran obtaining and retaining employment must also be considered in light of his physical and educational capabilities. His employment history has extensively been based on physical labor, given his military occupational specialties associated with automotive mechanics and maintenance, and he has not completed any notable higher education. Based on findings regarding his mental abilities, educational history and work experience, the Board finds that his service-connected PTSD has rendered him unable to obtain and maintain substantially gainful employment consistent with his education and occupational experience. Entitlement to a schedular TDIU is warranted for the entirety of the appeal period under consideration. 38 C.F.R. § 4.16(a). SMC A claim for SMC is considered part and parcel of a claim for an increased rating. Akles v. Derwinski, 1 Vet. App. 118 (1991). Moreover, VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); & Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim" and remanding, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's PTSD, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Because SMC (and TDIU) claims are part and parcel of increased rating claims, the Board has jurisdiction over this matter without issuance of a statement of the case by the AOJ. Akles, 1 Vet. App at 121; Bradley, 22 Vet. App. at 294. The entitlement considered here is based on "statutory housebound." When a veteran has a single disability rated totally disabling, and additional disabilities independently rated at a combined 60 percent or more, regulations provide for the payment of SMC at the housebound rate. 38 C.F.R. § 3.350(i). There is no need to establish factually that service-connected disabilities render a veteran substantially confined to his dwelling. The issue thus turns on whether the veteran has a single disability rated totally disabling during the appeal period. As discussed above, the Veteran has now been awarded TDIU for the entirety of the appeal period pertinent to his PTSD claim, based on the effects of his service-connected PTSD. Although his PTSD was not rated as 100 percent disabling in and of itself, the disability satisfies the requirement of a "service-connected disability rated as total" where the Board has determined that TDIU is warranted solely due to PTSD. Further, the Veteran's other service-connected disabilities were independently rated at a combined 60 percent or more for the entirety of the pertinent appeal period. Thus, the criteria for SMC at the "s" or housebound rate, pursuant to 38 U.S.C. § 1114(s), have been met for the entirety of the pertinent appeal period. 38 C.F.R. § 3.350(i). REASONS FOR REMAND Compensable rating for gout from September 2, 2010 The Court pointed out in its March 2021 Memorandum decision that, in reaching a finding that a compensable rating was not warranted for the Veteran's gout as of September 2, 2010, in its June 2019 decision, the Board had previously considered the ameliorative effects of the Veteran's gout medication. As the Court noted, the relevant diagnostic codes for gout do not contemplate the ameliorative effects of medication. See 38 C.F.R. § 4.17a, Diagnostic Codes 5002, 5027. At this juncture, the Board observes that the evidence of record with respect to the severity of the Veteran's gout is incomplete. In this regard, the Veteran was last afforded a VA examination that assessed the severity of his gout in June 2010. Review of his VA clinical treatment records reveals that, since that examination and during the pertinent appeal period, he sought treatment for gout multiple times, and has complained of various joint pains, although it is unclear whether such joint pains are related to his gout. This evidence further indicates that he has continued to require medication to treat his gout. Accordingly, the evidence of record does not clearly reflect the severity of the Veteran's gout since his prior examination in June 2010. Cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, remand is warranted to afford the Veteran a new VA examination to obtain information as to the severity of his service-connected gout throughout the period remaining on appeal. Service connection for a respiratory disorder Pursuant to the Board's June 2019 remand of the respiratory disorder claim, the Veteran was afforded a VA examination for the claimed disorder in December 2019, and opinions as to the etiology of diagnosed sleep apnea and as to the etiology of possible diagnoses of chronic obstructive pulmonary disorder (COPD) and asthma were provided by a VA-contracted examiner in August 2020. While the examiner opined that the Veteran's sleep apnea and possible asthma and COPD were less likely than not incurred in or caused by a claimed in-service injury, event, or illness, the examiner relied on a lack of evidence of lung disease including pathology suggestive of asbestos induced injury. The examiner did not address reports of shortness of breath noted in the Veteran's service treatment records (STRs) and did not consider evidence stating that he was exposed to significant levels of sulfur dioxide and hydrogen gas, due to oil well fires, during service. Accordingly, remand is warranted to afford the Veteran a new VA examination to obtain adequate etiology opinions considering all current respiratory disorder diagnoses and his full service history. With respect to both the Veteran's higher rating and service connection claims remaining on appeal, the evidence of record indicates that he has continued to receive regular VA treatment for his claimed disabilities. VA clinical treatment records dated between June 2016 and June 2019, however, have not been associated with the claims file. Also, the opinion provided by the August 2020 VA contracted examiner indicated that the Veteran had a pulmonology appointment pending, with possible diagnoses of asthma and COPD, depending on the findings from that appointment. Records pertaining to the Veteran's appointment have not yet been associated with the claims file. Accordingly, all pertinent, outstanding VA clinical treatment records must be obtained on remand. 38 C.F.R. § 3.159(c)(2). Whether October 13, 2004, correspondence constituted a valid NOD There is evidence of record indicating that the Veteran sought to appeal the assignment of a TDIU based on multiple disabilities, as opposed to the assignment of a TDIU based on a single disability, in an August 2004 rating decision. The Court has directed the Board to make a determination on the factual issue of whether the October 2004 correspondence filed by the Veteran constituted a valid NOD. Notably, the matter of whether a valid NOD has been submitted in a matter is a separately appealable issue. See Marsh v. West, 11 Vet. App. 468 (1998). Importantly, the AOJ has not adjudicated the matter. Thus, the Board cannot adjudicate this matter in the first instance without potential prejudice to the Veteran's claim. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, remand is required to accord the AOJ the opportunity to adjudicate first the matter of whether the Veteran's October 2004 submission constituted a valid NOD as to the assignment of a TDIU based on multiple disabilities, as opposed to a single disability, in the first instance. Accordingly, these matters are hereby REMANDED for the following action: 1. Adjudicate the issue of whether the Veteran's October 2004 submission constituted a valid NOD as to the assignment of a TDIU based on multiple disabilities. 2. Obtain the Veteran's outstanding VA treatment records, to include records dated from June 2016 to June 2019, and those dated since June 2020 (including recent pulmonology records). Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Then, schedule the Veteran for an appropriate VA examination to determine the severity of his gout since September 2010. The entire claims file, including a copy of this REMAND, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should report all manifestations related to the Veteran's service-connected gout. The examiner should specifically test the ranges of motion and pain for all joints affected by the Veteran's gout in active and passive motion, and in weight-bearing and non-weight bearing (with all results expressed in degrees). The same range of motion testing should also be accomplished for any unaffected opposing joints (for comparison purposes). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must attempt to elicit information from the Veteran regarding the severity, frequency, duration, and characteristics of any reported flare-ups of any joints affected by gout, and the degree of functional loss during flare-ups. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use over time, due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion, must also be noted. The examiner must offer an opinion as to whether there would be additional limits on functional ability during reported flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation in range of motion beyond that shown clinically on examination. To the extent possible, the examiner should determine whether the Veteran's gout has increased in severity, decreased in severity, or remained relatively at the same level since September 2010, and describe how any change was evinced, noting specific examples. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide a requested opinion, he or she should explain why. 4. Also, arrange for the Veteran to undergo new VA respiratory disorders examination by an appropriate examiner. The claims file and a copy of this REMAND must be made available to, and reviewed by, the examiner. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify any and all respiratory disabilities, to include sleep apnea, COPD, and asthma, that are currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). (b.) Then, for each such identified disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such disability had its onset in service, or is otherwise medically-related to the Veteran's service, to include evidence that he suffered from shortness of breath during service and confirmation that he was exposed to asbestos, and to significant levels of sulfur dioxide and hydrogen sulfide gas during service. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, including the notation in his STRs stating that his significant exposure to sulfur dioxide and hydrogen sulfide may be of clinical significance should he develop any respiratory illnesses; and lay evidence of record, to include lay assertions as to the nature, onset, and continuity of respiratory symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any scheduled VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.