Citation Nr: 21070647 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-33 852 DATE: November 24, 2021 ORDER Service connection for the Veteran's respiratory disability, as currently diagnosed, is granted. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for ischemic heart disease is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. The Veteran's respiratory disability began in, and has continued since, service. 2. The Veteran's service-connected PTSD is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran's respiratory disability, as currently diagnosed, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to April 1970. These matters come before the Board of Veterans' Appeals (Board) from a February 2015 rating decision. The Board remanded these matters in July 2020. As explained in the Board's July 2020 remand, the Veteran requested a Board hearing in his substantive appeal (Form 9) but later withdrew his hearing request. See 3/13/2020 Correspondence. 1. Service connection for the Veteran's respiratory disability, as currently diagnosed, is granted. VA treatment records show a history of COPD. Service treatment records reflect that the Veteran was treated for chest pain, coughing, and breathing in June 1967. The Veteran has reported that he has had trouble breathing since his active service. An August 2020 contract VA examination shows diagnoses of asthma (diagnosed in the 1990s) and COPD (diagnosed in 2003). Regarding onset, the Veteran reported that he started coughing up heavy mucous in 1967-70 during service. It was noted that the Veteran was a former smoker (3-4 cigarettes per day from 1967 to 1984) and a history of second-hand smoke exposure working as a casino dealer for 26 years. The examiner explained that records demonstrated a pattern of chronicity of the problem beginning in service with asthma-like symptoms, persisting to the present, and progressing over time to overlap with COPD. Based on this, the examiner opined that that the Veteran's asthma/COPD are at least as likely as not related to exposure to herbicides during service. In November 2020, however, a different VA examiner issued an opinion based on review of the record. Regarding the Veteran's respiratory disability, the VA examiner opined that the Veteran's asthma and COPD are less likely than not related to service, to include chest pain, coughing, and trouble breathing, and at least as likely as not caused by a post-service process and the Veteran's history of tobacco abuse. The examiner's rationale was essentially that no respiratory abnormality was noted at separation or soon after separation. Resolving doubt in favor of the Veteran, the Board finds that the Veteran's respiratory disability, as currently diagnosed, began in, and has continued since, service. The August 2020 contract VA examiner opined that the evidence establishes a chronicity of symptoms since service. This conclusion is consistent with the evidence of record, including the Veteran's reported history. In contrast, the November 2020 VA opinion is based on the absence of corroborating evidence and ignores the Veteran's reported history of symptoms. After weighing both opinions, the Board finds the August 2020 contract VA opinion more probative. For these reasons, service connection for the Veteran's respiratory disability, as currently diagnosed, is granted. 38 C.F.R. §§ 3.102, 3.303. 2. A TDIU is granted. A total disability rating 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 due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where 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. § 4.16(a). In this case, the Veteran has a combined disability rating of 70 percent since February 8, 2011. Therefore, he meets the percentage threshold for TDIU consideration on a schedular basis. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran, who has reported a high-school education, has stated that he last worked full-time, and became too disabled to work, in September 2008. He asserts that he is unable to sustain gainful employment due to his service-connected PTSD. Regarding his work history, he has reported full-time work as a casino dealer from 1973 to January 2002. 01/24/2017, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. He has also indicated that he was self-employed from July 2004 to September 2005, doing construction site clean-up. 06/27/2014, VA 21-4138 Statement in Support of Claim. More recently, he reported being unemployed since June 2005. 10/27/2020, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran is service-connected for PTSD (rated as 70 percent disabling) and dermatofibrosarcoma protuberans (rated as 10 percent disabling). In July 2019, he submitted a private medical opinion on individual unemployability. The author, a physician with a specialty in internal medicine, opined that it is more likely than not that the Veteran's service-connected disabilities render him unable to perform substantially gainful employment in his usual vocation or within other vocations. The author explained that the Veteran is unable to perform his job duties adequately and safely, due to functional impairment related to pain, physical and cognitive limitations, and associated symptomatology (i.e., fatigue). Additionally, he has limited education and training, and has no certifications, special skills, and trades that would promote his ability to secure or maintain employment in the current job market. 07/31/2019, Medical Treatment Record - Government Facility. The Veteran has undergone two VA examinations for his PTSD, in February 2015 and August 2019. These examinations indicate that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. These reports further indicates that the PTSD manifests as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, instability to establishing and maintain effective relationships, and impaired impulse control. Based on the evidence above, the Board finds that the Veteran's service-connected PTSD is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. As summarized above, the Veteran's PTSD results in significant occupational impairment that is inconsistent with his long-time work as a casino dealer, and there is no indication that the Veteran has the education, training, or experience that would allow him to secure and follow substantially gainful employment in a different line of work. In view of this, the Board finds that the criteria for a TDIU have been met. REASONS FOR REMAND 1. Entitlement to service connection for ischemic heart disease is remanded. The Veteran seeks service connection for a heart disability, described as ischemic heart disease. 12/16/2013, VA 21-526b, Veteran Supplemental Claim & VA 21-4138 Statement in Support of Claim. He asserts that this disability is related to herbicide exposure in service. The record shows that the Veteran served in the Republic in Vietnam and is therefore presumed to have been exposed to herbicide agents during that service. See, e.g., 08/29/2002, Rating Decision. Certain diseases associated with exposure to herbicide agents, including ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As noted in the Board's July 2020 remand, an April 2016 private treatment record lists coronary artery disease as an active problem but does not show a diagnosis. 06/27/2017, Medical Treatment Record - Non-Government Facility. Pursuant to the Board's July 2020 remand, the Veteran underwent a contract VA examination in August 2020. The examination report shows diagnoses of coronary artery disease (diagnosed in 2004), supraventricular arrhythmia (diagnosed in 2013), valvular heart disease (diagnosed in 2004), and hypertensive heart disease (diagnosed in September 2020). Regarding the etiology of these diagnoses, the examiner opined that the Veteran's coronary artery disease is at least as likely as not presumptively related to herbicide exposure in service. The examiner, however, opined that the Veteran's valvular heart disease and atrial fibrillation were less likely than not related to herbicide exposure. Regarding hypertensive heart disease, the examiner opined that this diagnosis was more likely than not a function of the Veteran's essential hypertension. 11/17/2020, C&P Exam. In November 2020, however, a different VA examiner issued an opinion based on review of the record. Significantly, the VA examiner disagreed with the diagnosis of coronary artery disease. The examiner explained that no objective medical record evidence to confirm such a diagnosis, as required by VBA diagnostic criteria, was found, and noted that neither coronary artery disease nor ischemic heart disease was listed in a VA chronic problem list from September 2020. The Board finds that additional development is necessary. As mentioned, the record includes an April 2016 private treatment record that lists coronary artery disease as an active problem. This record consists of a one-page nursing triage note from the Valley Hospital Medical Center. 06/27/2017, Medical Treatment Record - Non-Government Facility. As there is conflicting evidence as to whether the Veteran has a diagnosis of coronary artery disease, the Board finds that the Veteran should be given the opportunity to submit (or authorize the release of) any private treatment records showing a diagnosis of coronary artery disease. The Board further notes that the August 2020 VA opinion appears to have based on VA treatment records belonging to a different veteran. Specifically, the opinion references an October 2008 VA cardiology note from the Biloxi VAMC, showing a diagnosis of coronary artery disease. The record contains a set of records from the Biloxi VAMC. 08/11/2020, CAPRI. This set of records, however, pertains to a different veteran. (The Board assumes that this set of record has been associated with the Veteran's electronic record by mistake.) Therefore, the August 2020 VA opinion is not based on accurate record and, as such, is inadequate. Finally, the Board notes that the November 2020 VA opinion focused strictly on the question of whether the Veteran has a diagnosis of coronary artery disease. The examiner's rationale was essentially that no evidence to confirm such a diagnosis was found. The Board finds that this rationale is insufficient, as it skirts any discussion of the Veteran's cardiac history, as documented in VA treatment records. For these reasons, the Board finds that an adequate VA opinion is not of record. On remand, the Veteran should be scheduled for a new VA examination. The examiner should clarify whether the Veteran has a diagnosis of coronary artery disease. If the Veteran does not have a diagnosis of coronary artery disease, the examiner should opine whether any current heart diagnosis was incurred in service or is due to service, to include the Veteran's presumed herbicide exposure. 2. Entitlement to service connection for a neck disability is remanded. The Veteran has raised the issue of service connection for a neck disability. 06/27/2014, VA 21-4138 Statement in Support of Claim. The medical evidence reflects that the Veteran underwent cervical spine fusion in April 2006. He has reported neck pain during the period on appeal. Service treatment records reflect that he was treated for a sore neck in March 1967. Furthermore, he has reported that he has had neck pain since his active service. An August 2020 contract VA examination shows diagnoses of degenerative arthritis of the spine (diagnosed in 2005), intervertebral disc syndrome (diagnosed in August 2020) and spinal fusion in 2006. Regarding onset, the Veteran stated that his neck condition initially began in 1968 and referenced an in-service episode where he was throwing sandbags and "tweaked" his back and neck. He explained that his neck pain worsened after service, first in the 1970s, when he started working as a casino dealer, then in 2005, when he got hit by a truck, and more recently, around 2018, after he underwent back surgery. The examiner issued an opinion regarding the claimed neck disability. In it, the examiner summarized the Veteran's history of neck symptoms since service. The examiner, however, did not indicate whether the current disability is at least as likely as not related to service. In November 2020, a VA examiner issued an opinion based on review of the record. The examiner opined that the Veteran's neck disability is less likely than not related to service (include treatment for a sore neck) and at least as likely as not related to the natural aging process. The examiner's rationale was essentially that there was no evidence to support a diagnosis of arthritis or intervertebral disc syndrome in service or evidence that the sore neck experienced in service did not resolve without residual. This opinion relies heavily on the absence of corroborating evidence to rule out a nexus, lacks a comprehensive medical rationale, and ignores the Veteran's reports of neck symptoms since service. For these reasons, the opinion is incomplete, at best. A new opinion is therefore necessary. These matters are REMANDED for the following actions: 1. Ask the Veteran to either submit or authorize VA to obtain private medical records related to his heart condition, to include any private treatment records showing a diagnosis of coronary artery disease. 2. After completing #1, schedule the Veteran for a VA examination for his claimed heart disability. The examiner is to review the claims file. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran has ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)? Any testing deemed necessary to answer this question should be conducted. If the examiner concludes that the Veteran does not have ischemic heart disease, the examiner should provide a clear explanation for this conclusion, one that shows adequate consideration of the Veteran's cardiac history. (b.) If not, is any current heart disabilities at least as likely as not (probability of approximately 50 percent) related to active service, to include the Veteran's presumed herbicide exposure. The examiner is advised that a negative opinion cannot be based solely on the fact that the [disability] is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for a VA examination for his claimed neck disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (c.) Is the claimed neck disability at least as likely as not (probability of approximately 50 percent) related to service? The Veteran has stated that he injured his neck in service; service treatment records show treatment for a sore neck; and the Veteran has reported neck symptoms since service. (d.) Is it at least as likely as not (probability of approximately 50 percent) that any current arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (Continued on the next page) Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.