Citation Nr: 21075002 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-21 244 DATE: December 17, 2021 ORDER Effective November 20, 2014, a total disability rating based on individual unemployability due to the aggregate effect of the Veteran's service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a rating in excess of 60 percent for a pulmonary condition possibly related to asbestos exposure is remanded. Entitlement to a TDIU based solely upon the service-connected pulmonary condition possibly related to asbestos exposure is remanded. FINDING OF FACT From November 20, 2014, the Veteran's service-connected disabilities, collectively rated at least 70 percent, at least one of which rated over 40 percent, have prevented him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW Effective November 20, 2014, the criteria for entitlement to TDIU are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1970 to December 1971 and from September 1972 to September 1974, to include service in the Republic of Vietnam. The Veteran served in combat and his decorations include the Combat Action Ribbon. In July 2021, the Veteran and his wife presented sworn testimony at a hearing before the undersigned Veterans Law Judge. The evidence of record has raised the issues of whether the Veteran is unemployable due to the aggregate effect of his service-connected disabilities, and whether he is unemployable solely due to his service-connected pulmonary condition. The Board takes jurisdiction of these issues as they are part and parcel to the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Effective November 20, 2014, a TDIU due to the aggregate effect of the Veteran's service-connected disabilities is granted. The Veteran seeks entitlement to a TDIU: arguing that he is unemployable due to both the aggregate effect of his service-connected disabilities and solely due to the symptoms of his service-connected pulmonary condition. Entitlement to a TDIU due solely to the Veteran's service-connected pulmonary condition is remanded and discussed further in the section below. However, at this time, the evidence sufficiently establishes that the aggregate effect of the Veteran's service-connected disabilities is warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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(a). 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 any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Service connection is in effect for posttraumatic stress disorder (PTSD), rated 30 percent from May 5, 2016, and 70 percent disabling from October 31, 2017; a pulmonary condition, rated 60 percent disabling from March 28, 2008; urinary frequency, rated 40 percent from May 5, 2016; diabetes mellitus, rated 20 percent from November 20, 2014; a skin disability, rated 10 percent disabling from May 5, 2016. The Veteran's claim of entitlement to a TDIU stems from the May 2011 increased rating claim on appeal. See Rice, 22 Vet. App. at 453-54. Prior to November 20, 2014, the Veteran's pulmonary condition was his sole service-connected disability. Entitlement to a TDIU due solely to the service-connected pulmonary condition will be addressed in the remand section below. From November 20, 2014, the Veteran's service-connected disabilities, collectively rated at least 70 percent, at least one of which rated over 40 percent, satisfied the schedular criteria for a TDIU. See 38 C.F.R. § 4.16. The Board finds that the aggregate effect of the Veteran's service-connected psychiatric and physical disabilities have been of sufficient severity to produce unemployability. In this regard, the Veteran has a college education and was last employed providing janitorial services in August 2008. See, e.g., VA Form 8940 (February 2018). Since November 20, 2014, the Veteran's service-connected disabilities have included a pulmonary condition, a psychiatric disorder, a pulmonary condition, urinary frequency, and a skin disorder. During the July 2021 Board hearing, the Veteran's wife explained that his urinary frequency critically impaired his ability to work. During the hearing and in correspondence received throughout the appeal, the Veteran further explains, and the evidence shows, that difficulty breathing resulting from his service-connected pulmonary condition further impaired his ability to perform activities. He and his wife explained that he is only able to regain his breath if he stops performing activity. When coupled with symptoms of his service-connected psychiatric disorder, to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory loss, and intermittent inability to perform activities of daily living, the Board finds that the lay and medical evidence of record establishes that the Veteran's service-connected disabilities precluded him from obtaining employment consistent with his occupational history and education. See Geib, 733 F.3d 1350. Accordingly, effective November 20, 2014, a TDIU due to the aggregate effect of the Veteran's service-connected disabilities is warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension, which he relates to in-service exposure to an herbicide agent and, or, his service-connected disabilities, namely his psychiatric disorder and respiratory disorder. Service connection is in effect for a psychiatric disorder, a pulmonary condition, diabetes mellitus, and a skin disability. In November 2012, a VA examiner found that the Veteran has a current diagnosis of hypertension but opined that such was not related to in-service asbestos exposure as asbestos is not a risk factor for hypertension. In light of the Veteran's service in Vietnam and his presumed Agent Orange exposure, as well as his contentions regarding his disabilities, the Board finds that remand for a VA examination and medical opinion is necessary. See Healey v. McDonough, 33 Vet. App. 312, 317-18 (2021). It is noted that the National Academies of Sciences, Engineering and Medicine (NAS) issued an update in 2018. In "The Veterans and Agent Orange: Update 11 (2018), "NAS upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. In light of the foregoing, the Board finds that an opinion addressing whether there is a relationship between the Veteran's hypertension and exposure to an herbicide agent or his service-connected disabilities should be obtained. 2. Entitlement to a rating in excess of 60 percent for a pulmonary condition possibly related to asbestos exposure is remanded. VA examination is needed to ascertain the current severity of the Veteran's service-connected pulmonary condition because, during the July 2021 hearing, the Veteran reported that the condition has worsened since his most recent VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, the evidence, to include the Veteran's July 2021 testimony and written correspondence received on December 1, 2021, indicates that there may be outstanding VA and private medical records relevant to the severity of the Veteran's pulmonary condition. In this regard, while VA medical treatment records indicate that the Veteran has been in receipt of ongoing care, records of such care are only current through December 2019. Relevant statutory and regulatory provisions emphasize the importance of obtaining VA and private records as part of the duty to assist. See 38 U.S.C. § 5103A (c)(2); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 3. Entitlement to a TDIU based solely upon the service-connected pulmonary condition possibly related to asbestos exposure is remanded. The Veteran's claim for TDIU is also remanded, as it is inextricably intertwined with his claim for a higher rating for a pulmonary condition. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for clinicians that have treated his pulmonary condition, which were identified in his December 1, 2021, correspondence. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) for his hypertension. The examiner should opine whether it is at least as likely as not that any identified disability had its onset in service or within the first post-service year. The examiner must also opine as to whether the Veteran's hypertension is related to service or is related to herbicide exposure in Vietnam. In reaching this determination, the VA examiner must specifically address the National Academies of Sciences, Engineering and Medicine (NAS) 2018 update regarding the relationship between herbicide exposure and hypertension. The examiner must also address whether there is any etiology relationship between the Veteran's hypertension and any (i) of his service-connected disabilitiespsychiatric disorder, a pulmonary condition, diabetes mellitus, and a skin disabilityor (ii) medication prescribed for a service-connected disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pulmonary condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.