Citation Nr: 21006184 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-33 210 DATE: February 3, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. REMANDED Service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT The evidence of record including multiple VA examinations, a private medical opinion, and the Veteran’s statements in the record indicate that the Veteran’s various service-connected conditions prevent him from obtaining employment which would require physical or non-physical duties. CONCLUSION OF LAW The criteria have been met for a TDIU rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to January 1992, from April 1993 to August 1994, and from February 2003 to May 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and October 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were before the Board in April 2019 and were remanded for further development. A TDIU rating is granted on a schedular basis. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities 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). Eligibility During the period on appeal, the Veteran had multiple service-connected disabilities that were rated at least 40 percent disabling which combined to over a 70 percent level of impairment, including sleep apnea rated at 50 percent disabling, migraines rated at 50 percent, and PTSD rated at 50 percent disabling. The Veteran was also service connected for bilateral pes planus rated at 10 percent disabling, hallux valgus of the right and left great toe both rated at 10 percent disabling, irritable bowel syndrome rated at 10 percent disabling and tinnitus rated at 10 percent disabling. Accordingly, the Veteran met the criteria for a TDIU rating on a schedular basis. 38 C.F.R. § 4.16(a). Factual Background In the Veteran’s application for a TDIU rating, he indicated that the last time he worked was in December 2017 as a housekeeper and telephone operator. The Veteran reported that the reason for leaving his last job was it was “unbearable” to work due to his lack of sleep from sleep disturbances and his stomach pain. The Veteran provided a February 2013 private medical statement that the Veteran had a suicide attempt in 2008 and endorsed symptoms of depressed mood and irritability, nightmares 2-3 times per week, poor concentration and energy level, and avoidance of crowds. An August 2013 VA examination indicates that the Veteran’s highest level of education is a high school diploma. The Veteran indicated that he worked as a security guard until 2012 when he fractured his leg. The Veteran displayed symptoms of depression, lack of initiative and motivation in social activities. At an August 2013 headache examination, the Veteran reported that he gets migraines 3-4 times a week that last 30-40 minutes with occasional nausea with prostrating attacks more frequently than once per month. An August 2013 foot examination indicates that the Veteran had a third toe amputation due to an infection in 1992 and had hallux valgus. The conducting physician opined the Veteran’s foot conditions slightly limit weight bearing activities. An August 2013 intestinal examination, the Veteran reported that he has diarrhea for 3-4 days and then suffers from constipation from 3-4 days. A March 2017 PTSD examination indicates that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior self-care and conversation. The examiner noted symptoms of hypervigilance, depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The Veteran submitted a September 2017 buddy statement from his mother who reported that the Veteran is sensitive to light, especially when he has a headache. She also reported that the Veteran has had to cancel plans and often cannot focus or function when he has severe headaches. At a July 2019 PTSD examination, the examiner opined that the Veteran displayed occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. At a July 2019 intestinal examination, the conducting physician opined that the Veteran suffers from irritable bowel syndrome (IBS), chronic diarrhea, GERD, and gastritis requiring him to be near a bathroom at all times. The physician explained that this would limit his productivity because spends a lot of time in the restroom. Finally, the physician stated that the Veteran also needs to use adult diapers when his symptoms are severe and requires being able to change his clothes. At a December 2019 foot examination, the Veteran reported than he gets pain and numbness in his feet. The physician explained that the Veteran is limited in his ability to do prolonged standing and walking. At a December 2019 PTSD examination, the conducting physician noted occupational and social impairment with reduced reliability and productivity. The physician explained that the Veteran exhibited mild limitations in the areas of remembering or applying information. The physician also explained that the Veteran exhibited moderate limitation in relating to and working with supervisors, co-workers, and others. Finally, the Veteran appeared to be exhibiting moderate limitations in trying to adapt and manage oneself. The Veteran submitted a May 2020 medical opinion from his private physician who stated that the Veteran would be unable to stand for 30 minutes, walk for 30 minutes or unable to carry more than 15 pounds due to his foot pain. The physician explained that the Veteran would be unable to concentrate due to his mental health symptoms, IBS and migraines. The physician opined that the Veteran would be required to miss work or leave early three or more days per month due to the pain and limitations from his psychiatric disorder, sleep apnea, foot pain, IBS and migraines. The physician also opined that the Veteran would need additional breaks during a workday due to his IBS and migraines. The physician opined that based on the Veteran’s service-connected impairments, the Veteran would not be able to maintain substantially gainful employment. Analysis The Board finds that, during the period on appeal, the Veteran has been unable to obtain or maintain employment which would require him to do physical labor. This is consistent with the findings of the December 2019 VA foot examination, May 2020 private examination and the Veteran’s competent and credible reports that he is unable to stand or walk for extended periods of time and that he is unable to carry more than 15 pounds due to his foot pain. What remains for consideration is whether the Veteran was able to obtain and maintain employment that would not require physical activity. The Board assigns probative value to the May 2020 private physician’s opinion that the Veteran would not be able to maintain substantially gainful employment. The Board notes that the private physician reviewed the claims file and supported their opinion with a rationale. Furthermore, the Veteran provided competent and credible reports that he is unable to concentrate and focus due to his PTSD symptoms. The Board also assigns probative value to his mother’s statement that the Veteran often cannot focus or function when he has severe headaches. Finally, the Board assigns probative value to the findings of the July 2019 VA intestinal examiner who explained that the Veteran’s productivity would be limited because he would have to spend a lot of time in the restroom. Additionally, the Veteran does not have the educational background, training, or work history to support a finding that he could obtain and maintain a non-physical labor position. Prior to working as a housekeeper, the Veteran worked as a security guard and he has not obtained a college degree or any job training in a non-physical labor field. Given the above, the Board finds that the Veteran’s service-connected disabilities render him unable to obtain or sustain substantially gainful employment. Thus, a TDIU rating is granted. REASONS FOR REMAND Service connection for GERD is remanded. In compliance with the April 2019 Board remand instructions, the Veteran was afforded a December 2019 VA examination. The conducting physician remarked that the first documentation of GERD was in 2000 and that there is no evidence found in any record of GERD in 1994. The physician opined that there was no evidence that the Veteran’s GERD was permanently worsened by active duty service. The physician did not provide a rationale. Accordingly, the Board finds that this examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Furthermore, the examiner did not comply with the April 2019 remand instructions because they did not opine as to whether the Veteran’s GERD was directly related to his periods of active service (other than February 2003) including January 1989 and April 1993. The issues are remanded to provide the Veteran with adequate medical examination reports and opinions. Where the remand orders of the Board are not fully complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board apologizes to the Veteran for an additional remand but finds it is in his best interest; although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination concerning his GERD. The claims file must be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file the examiner should address each of the following: a. Did the Veteran’s GERD clearly and unmistakably exist prior to the Veteran’s entrance into active service in January 1989, April 1993, or February 2003? b. With respect to the diagnosed GERD that clearly and unmistakably existed prior to service, does the evidence clearly and unmistakably show that such disability was not aggravated in service or that any increase in disability was due to the natural progression of the disease? c. If the GERD did not clearly and unmistakably exist prior to any of the periods of active duty, is it at least as likely as not that such disability had its onset in service or is otherwise related to service? A complete rationale should be provided for any opinion expressed. The rationale for all opinions, with citation to relevant medical findings, must be provided. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.