Citation Nr: 21072503 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-24 119 DATE: December 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities were of such severity so as to preclude all forms of substantially gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to November 1979. Unfortunately, the Veteran passed away in January 2018. The Board is thankful for the Veteran's honorable service and wishes to express its condolences to the Appellant for her loss. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Procedurally, the Board remanded the matter in June 2016. In July 2017, the Board denied entitlement to a TDIU. In November 2017, the Veteran's representative filed a Motion for Reconsideration. In June 2018, the Board vacated its July 2017 denial decision and remanded the matter for further development. In November 2020, the Board remanded the matter again and directed the RO to provide the Appellant (the Veteran's surviving spouse) with a VA Form 21-4142, Authorization for Release of Information, as the one she submitted in June 2019 had expired. In December 2020, the Appellant was provided VA Forms 21-4142 and 21-4142a. In January 2021, the Appellant returned VA Form 21-4142, identifying several private practitioners. In March 2021, several private treatment records were obtained and associated with the claims file. Also, in March 2021, the RO notified the Appellant and informed her that two private practitioners charged for copies of medical treatment records and that, if she wanted them considered, she would be responsible for sending copies of such documents. The Board finds that there has been substantial compliance with the November 2020 remand directives, and further remand is not required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contended that his service-connected disabilities, particularly his splenomegaly with thrombocytopenia; cirrhosis of the liver with portal hypertension; and hepatitis C, rendered him unable to maintain substantially gainful employment. See November 2013 VA Form 21-8940. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. 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. 38 C.F.R. § 4.16. The Veteran was in receipt of a 30 percent disability rating for splenomegaly with thrombocytopenia from December 29, 2011 and a 70 percent disability rating from September 30, 2015; a 0 percent disability rating for cirrhosis of the liver from December 29, 2011 and a 50 percent disability rating from January 29, 2016; and a 0 percent rating for hepatitis C from December 29, 2011, a 10 percent disability rating from October 22, 2013, and a 40 percent disability rating from September 15, 2015. The Veteran has a combined disability rating of 30 percent from December 29, 2011; 40 percent from October 22, 2013; 60 percent rating from September 15, 2015; 80 percent from September 30, 2015; and 90 percent from January 29, 2016. The Veteran met the schedular requirements for TDIU as of September 30, 2015. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty level threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned income." In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that only service-connected disabilities can be considered in evaluating the TDIU claim. 38 C.F.R. § 4.16. Turning to the relevant evidence of record, with respect to work history, the Veteran worked as a crane operator for over twenty years. The Veteran's educational background includes that he graduated from high school, and he previously identified that he did not have any further education or training. See November 2013 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran stated that he last worked on a full-time basis in April 2010 and that he left his job due to his service-connected disabilities. Id. The Board further notes that the Veteran identified that his work duties as a crane operator included operating a crane and other equipment; loading 275-gallon basement tanks; lifting 50 pounds or more on a frequent basis with the heaviest weight of 100 pounds or more. See Medical Treatment Records Furnished by SSA associated with the record in August 2015. The Veteran was determined to be disabled in May 2010 after filing a disability claim with the Social Security Administration (SSA). In the Veteran's SSA Disability Report, the Veteran reported that he has experienced more shortness of breath, more pain in his liver, and fatigue from hepatitis C which prevented him from doing anything. However, the SSA determination of disability was based on both his non-service connected heart disease and his service-connected liver condition. As shown below, the Veteran has been afforded numerous VA examinations in connection with his service-connected disabilities. In November 2013, the Veteran was afforded a VA Hepatitis, Cirrhosis, and other Liver Conditions examination. The examiner noted the Veteran had low viral load, mild liver inflammation, and mild fatigue on an intermittent basis. The examiner also stated that the Veteran did not have signs or symptoms attributable to cirrhosis of the liver and that the Veteran's liver condition did not impact his ability to work. In January 2014, the Veteran was provided a Hematologic and Lymphatic Conditions examination to determine whether the Veteran's condition had increased in severity. The examiner noted the Veteran's thrombocytopenia was in active status with a stable platelet count between 70,000 and 100,000, and the Veteran did not require medication to control the condition. As to functional impact, the examiner noted that the Veteran's hematologic or lymphatic condition impacted his ability to work, noting that the Veteran informed her that his doctor told him he that he was unemployable. In the Remarks section of the report, the examiner noted that the Veteran stated that he has been "unemployable"/disabled since 2010 per his community provider and that coronary artery disease and hepatitis C were the given reasons. Also, in a January 2014 medical opinion, another VA examiner stated that based on a January 2014 Hematologic and November 2013 Hepatic reports, there was no clear recent evidence for individual unemployability due to the Veteran's service-connected disabilities. In a September 2015 Hepatitis, Cirrhosis, and other Liver Conditions exam, the examiner found that although the Veteran's cirrhosis had worsened, the Veteran's liver condition did not impact his ability to work. The examiner further found the Veteran's liver condition did not impact his ability to work. In a July 2016 VA examination for Hepatitis, Cirrhosis and other Liver Conditions, the examiner noted the Veteran experienced esophageal bleeding from his varices that required a rubber banding x 4 in February 2016. The examiner further noted the Veteran's enzymes were about the same compared to his last exam of September 2015 and that it is usual for enzymes to go up and down and not remain the same. Moreover, the examiner indicated the Veteran tested positive for alcohol which could easily cause his enzymes to increase. As it relates to functional impact, the examiner noted that the Veteran's condition would not affect his ability to work, noting that there were no ascites noted, his edema could not be determined to be from his liver or his known chronic congestive heart failure (CHF), and while his viral load increased threefold in 1.5 years, his enzymes and complete blood count (CBC) were stable. In a July 2016 Hematologic and Lymphatic Conditions examination, the examiner determined that the Veteran's hematologic or lymphatic condition did not impact the Veteran's ability to work. Here, the examiner noted that the Veteran's splenomegaly was mild to moderate; his CBCs were fairly stable; and his platelet counts seemed to be stable from his last examination. The examiner further noted that the Veteran's fatigue and minimal, intermittent edema have been related to his chronic CHF documented in records. A December 2016 VA treatment record showed that the Veteran had a history of HCV cirrhosis/decompensated liver disease. A January 2017 private treatment record, authored by Dr. T.J., shows that the Veteran was asymptomatic as to his hepatitis C. As to his thrombocytopenia, the Veteran's platelet count was 58,000, and the clinician stated that such platelets had been stable, and that the Veteran was not having any bleeding episodes. In a January 2017 VA treatment note, a clinician reported that according to the GI clinic notes dated November 2016, the Veteran likely has decompensated liver cirrhosis. An April 2017 private treatment record, authored by Dr. K.K., shows that as to the Veteran's hematological system, he bruises/bleeds easily. The clinician further noted that the Veteran did not appear to be clinically volume overloaded, but he reported some dyspnea. In a July 2020 medical opinion, a VA examiner opined that the Veteran's service-connected hepatitis C, liver cirrhosis, and thrombocytopenia less likely than not affected his employability throughout the entire appeal period. The examiner also opined that it was less likely than not that such disabilities precluded the Veteran from engaging in substantially gainful employment at any time during the appeal period. No further rationale in support of the opinion was provided. Initially, the Board acknowledges that in light of the Veteran's education history (a high school graduate with no college degree or additional education or training), work history (with a long-standing career as a crane operator, requiring manual labor), and medical conditions, it would be highly unlikely that he would have been able to work in a similar job as the sole one that he had held in the past, a crane operator, and that he did not have sedentary work experience, nor any office work experience, thus, employment in a sedentary position was not available. Turning to whether his service connected hepatitis C, cirrhosis of the liver, and splenomegaly with thrombocytopenia rendered him unemployable, the Board recognizes that each of the VA examinations of record, with the exception of the opinion dated January 2014, show that the Veteran did not have functional impairment as due to his service-connected disabilities. However, the Board affords such opinions low to no probative weight as these VA opinions failed to thoroughly consider the Veteran's lay statements or consider that the Veteran's service-connected disabilities worsened in severity starting in September 2015. More specifically, in the Medical History section of each report prior to the Veteran's death, the examiners did not solicit any information pertaining to the Veteran's service-connected conditions. Further, the Board identifies that the July 2016 examiner acknowledged that the Veteran had been hospitalized in January 2016 as a result of esophageal bleeding related to his service-connected conditions, but the examiner did not consider the likelihood of future hospitalizations nor the impact of the esophageal bleeding and hospitalization on his employability. Further, the January 2020 examiner did not provide any rationale in support of the opinion that the Veteran's service-connected disabilities did not impact his ability to work. In support of the claim, the Board notes that an April 2017 private treatment record shows that pertaining to the Veteran's hematological system, his symptoms included that he bruises/bleeds easily. More significantly, the Board notes that the Veteran's service-connected disabilities worsened as of September 30, 2015, the 70 percent rating assigned for splenomegaly with thrombocytopenia demonstrates symptoms such as easily bruising and more severe bruising, headaches, fatigue, feeling weak and dizzy, muscle or joint pain, the increases to his Hepatitis C and cirrhosis evaluations to 40 percent and 50 percent respectively, demonstrate at least one episode of epigastric hemorrhage and daily fatigue, malaise, anorexia or incapacitating episodes lasting 4 to 6 weeks in a twelve month period. The notation on the Veteran's death certificate showed that his causes of death were that of post-pulmonary hypertension, end stage liver disease, cirrhosis of the liver, and hepatitis C virus. Thus, these conditions were active and contributed to his passing. Therefore, based on the evidence of record, the Board finds that it was unlikely that the Veteran could secure and follow a substantially gainful occupation based on his service-connected conditions alone after September 30, 2015, when the record establishes the worsening of these conditions. Prior to this date, the Veteran did not meet the schedular criteria for TDIU, and must be considered on an extraschedular basis. 38 C.F.R. § 4.16(a), (b). Pursuant to Ray v. Wilkie, entitlement to an extraschedular TDIU must be referred to the Director for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. 31 Vet.App. 58, 66 (2019). Weighing the evidence of record prior to September 2015, it does not show a reasonable possibility that the Veteran was unemployable solely because of his service-connected disabilities. The 2010 SSA determination is clearly based on a combination of both his service-connected liver condition and his non-service connected heart disability. His evaluations for his service-connected disabilities do not indicate a level of severity raising a reasonable possibility that he was unemployable solely due to these conditions until 2015. Further, the November 2013 examiner determined that his symptoms were mild and that there was no impact on his ability to work, and the January 2014 examiner, while acknowledging that there was some impact did not find that they rendered him unemployable and indicated that the Veteran himself had stated that he was unemployable due to his liver and heart conditions. The supplemental opinion in January 2014 found there was no unemployability due solely to the Veteran's service-connected conditions based on review of the recent hematologic and hepatic reports. Consequently, for the period prior to September 30, 2015, the Board finds that referral to the Director of Compensation Service for consideration of extraschedular TDIU is not warranted. Accordingly, entitlement to TDIU is granted effective September 30, 2015, but no earlier. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.