Citation Nr: A21017609 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 181030-770 DATE: November 1, 2021 ORDER Subject to the laws and regulations governing the award of monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED The issue of entitlement to service connection for a heart disorder, to include as a result of in-service exposure to herbicide agents, is remanded. FINDING OF FACT The most competent and credible evidence is in relative equipoise as to whether the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to November 1969. This appeal to the Board of Veteran's Appeals (Board) arose from a September 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Prior to the implementation of the Appeals Modernization Act, most commonly known as AMA, the Veteran chose to participate in the VA's test program, RAMP, the Rapid Appeals Modernization Program. The Board is honoring the Veteran's choice. In October 2018, the Veteran selected the Hearing Lane when submitting the RAMP election form. The requested hearing was conducted in January 2020 by a Veterans Law Judge. A transcript of the hearing is associated with the file. In May 2020, the Board denied service connection for a heart disorder and entitlement to a TDIU rating. The Veteran appealed the May 2020 decision to the Court of Appeals for Veterans Claims (CAVC or Court), which vacated the decision and remanded it back to the Board for further development in March 2021, pursuant to a Joint Motion for Partial Remand (JMPR). The Board acknowledges that a privacy act request was submitted in October 2021. The Agency of Original Jurisdiction has acknowledged the request and informed the Veteran's representative that it is being processed. See October 2021 Privacy Act Request Acknowledgement and Correspondence. As the claims are being granted and remanded, there is no prejudice to the Veteran to continue with adjudication as that FOIA request is being processed. TDIU A total disability rating for compensation purposes 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 service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In order for the Veteran to be eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16, his combined service-connected disability ratings must meet the schedular criteria. Here, the Veteran has a combined rating of 80 percent from May 2, 2012. Service connection is in effect for PTSD, diabetes mellitus, bilateral lower extremity peripheral neuropathy, hypertension, and tinnitus. The question at hand is whether the Veteran is unable to secure or follow substantially gainful occupation due to his service-connected disabilities, specifically if he is incapable of performing the physical and mental acts required by employment. The Veteran last worked in August 2009 as an experimental technical mechanic. He indicated that he completed some years of high school. He had not received any other education or training before or since becoming too disabled to work. See April 2013 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). In an October 2018 VA Medical Treatment Note, it was reported that the Veteran had difficulty driving because of dizziness and peripheral neuropathy. See December 2018 VA Medical Treatment Records (CAPRI). Due to the Veteran's psychiatric symptoms, such as disturbances of motivation and mood and difficulty in establishing and maintaining effective work relationships, he experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods to perform occupational tasks. See January 2019 VA Examination for PTSD. At the January 2020 Board hearing, the Veteran shared that his neuropathy was getting worse. He stated that his legs would tire out from walking and impaired his ability to stand. He clarified that he did have a high school diploma and that he attended college for a couple of years, but he did not receive a degree. He explained that he has only had history in working as an airplane mechanic. After a thorough consideration of the evidence, the Board finds that the evidence is in relative equipoise regarding whether the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. The Board acknowledges that there is evidence showing that his nonservice-connected disabilities may contribute to his physical inability to maintain employment. However, there is also evidence showing that his psychiatric and neuropathic symptoms factor into his ability to perform the physical and mental acts required for employment. The examinations note that he experiences occupational impairment due to his psychiatric symptoms. The Board must consider the effects of his service-connected disabilities on his physical and mental state. He experiences physical impairments and limitations attributed to his neuropathy and had to stop driving as a result. His service-connected disabilities affect his ability to perform physical and mental acts required for employment, including task requiring light or no physical activity. Further, he has only had experience as an aircraft mechanic. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected disabilities render him unable to secure or follow substantially gainful employment and significantly impact his ability to perform the physical and mental acts required by employment. Accordingly, the Board finds that a TDIU is warranted. REASONS FOR REMAND Service connection for a heart disorder, to include as a result of in-service exposure to herbicide agents After a thorough consideration of the evidence of the record, the Board finds that pre-decisional duty to assist errors were made and that a remand is necessary to accord the AOJ an opportunity to cure those errors. The Veteran seeks entitlement to service connection for a heart disorder, which he believes developed as a result of in-service herbicide agent exposure. The AOJ favorably found that the Veteran has a current diagnosis of atrial fibrillation and conceded herbicide agent exposure due to his verified Vietnam service during the applicable time period. The Board is bound by these favorable findings. Significantly, the Veteran has not been accorded an examination to confirm the exact diagnosis of his heart condition and to determine the nature and etiology of any such diagnosed condition. While ischemic heart disease, to include coronary artery disease, is among the diseases entitled to presumptive service connection based on herbicide agent exposure, atrial fibrillation is not among those disease classified as ischemic heart disease. 38 CFR §3.309. Importantly, however, even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The record evidence was sufficient to trigger the duty to provide the Veteran a VA examination for his claimed heart condition. McLendon v. Nicholson, 20 Vet. App. 29 (2006). The failure to provide the Veteran with a VA examination with an etiological opinion was a pre-decisional duty to assist error. Therefore, on remand, the AOJ must afford the Veteran such an examination with the associated etiological opinion. Accordingly, this matter is REMANDED for the following action: Accord the Veteran an appropriate VA examination to determine the nature and etiology of his heart condition. His claims file should be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be conducted. After record review and examination, the VA examiner should: (a) provide the diagnosis(es) of any heart disorder(s) found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. (b) for any such diagnosed heart disorder(s), opine as to whether it is it at least as likely as not (50 percent or greater probability) that such disability(ies) was(were) incurred in, caused by, or otherwise related to the Veteran's service, to include his conceded in-service exposure to herbicide agents? The examiner cannot base the opinion solely on the fact that a diagnosed heart disorder is not recognized as a presumptive disease due to herbicide agent exposure. Rather, the examiner should discuss the likelihood that any diagnosed heart disorder is related to the Veteran's conceded in-service exposure to herbicide agents, given the specific circumstances of his medical history, family history, and the absence or presence of other risk factors. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a 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 S. Middleton, 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.