Citation Nr: 21009480 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 02-12 472 DATE: February 22, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected narcolepsy and medications taken for such disability, is remanded. Entitlement to a separate rating or service connection for confusion, irritability, and/or sexual dysfunction, claimed as secondary to medications taken for service-connected narcolepsy, is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his service-connected narcolepsy rendered him unable to secure or follow a substantially gainful occupation. 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, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1963 to May 1967. He died in January 2009, and the appellant is his surviving spouse, who was recognized as the substituted claimant for the purpose of processing his appeal to completion in October 2011. 38 C.F.R. § 3.1010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in June 2007 and December 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2006, the Veteran and the appellant testified before a Veterans Law Judge. A transcript of the hearing is associated with the record. As the Veterans Law Judge subsequently retire, the appellant was informed that she may testify at a new Board hearing before a different Veterans Law Judge in a December 2020 letter; however, she indicated that she did not want another Board hearing in a response received in January 2021. The Board remanded the issue of entitlement to a low back disorder in March 2012, March 2013, October 2014, and August 2016 for additional development. In August 2016, the Board also remanded the claims for entitlement to a separate rating for manifestations of irritability, confusion and sexual dysfunction associated with narcolepsy, to include as due to medication(s) for narcolepsy, and entitlement to a TDIU. In March 2019 the Board denied the above claims and the Veteran subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court). On the basis of a November 2019 Joint Motion for Remand (JMR), the Court vacated the March 2019 decision and remanded the matter for further consideration. Subsequently, in December 2020, the appellant, through her representative, submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c). Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). 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). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, 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). The issue of entitlement to a TDIU was raised as part and parcel to the appellant’s claim for a higher initial rating for narcolepsy, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the appeal period stems from April 19, 2001, the date of service connection. Turning to the evidence of record, the Board notes that, at the time of the Veteran’s death, he had a single service-connected disability of narcolepsy, rated as 60 percent disabling, effective April 19, 2001. Thus, the schedular threshold criteria for a TDIU have been met for the entire appeal period pursuant to 38 C.F.R. § 4.16(a). As an initial matter, in its March 2018 decision, the Board denied the appellant’s claim for entitlement to a TDIU based on the Veteran’s service-connected narcolepsy. In the decision, the Board noted a 2016 letter, in which the appellant stated that the Veteran worked for himself, “as an entrepreneur;” and a March 2002 letter, in which the appellant wrote that the Veteran’s narcolepsy prevented him from working a day job, and therefore, he went into business for himself. Thereafter, it was noted that the AOJ requested additional information regarding the Veteran’s employment, including the type of work the Veteran performed, the number of hours he worked per week, the amount of employment time lost in the last 12 months due to his service-connected disability, and his net and gross earnings for the last 12 months of employment. However, it was determined that neither the appellant nor her representative submitted the requested information. Therefore, the Board found that the Veteran was self-employed and was not unable to secure or follow a substantially gainful occupation due to his service-connected disability. However, in the November 2019 JMR, the parties found that the Board failed to consider the numerous reports within the current record of evidence that demonstrated the Veteran may have been unable to maintain substantially gainful employment. Thus, the Court vacated the prior decision and remanded the claim for an adequate analysis. In this regard, the Board notes that a January 2018 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) reflects that the Veteran was last employed full-time in 1997 and completed four years of college. Here, it was noted that from 1992 to 1997, the Veteran owned and operated Lewis and Smith Construction. A review of the record also indicates that the Veteran was considered disabled by the Social Security Administration (SSA) in 2001, to include secondarily due to narcolepsy; and that, prior to 1992, the Veteran was employed in various capacities, to include working for IBM, as a furniture salesman, and as the owner and operator of a carpet company. As such, the Board finds that the Veteran was not gainfully employed during the entire appeal period. Thus, the remaining question is whether or not the Veteran was unable to maintain substantially gainful employment as a result of his sole service connected disability. In a January 2008 VA examination report, it was reported that the Veteran was only able to work 2 to 3 hours of office work because of sleep problems. Thereafter, it was noted that the Veteran’s intercurrent illnesses had kept him from working altogether. Multiple statements submitted by the Veteran’s family, friends and former co-workers in April 2013 speak to how the Veteran’s narcolepsy impacted his ability to work. Specifically, one co-worker that worked with the Veteran at the IBM Office Products Division and at the Veteran’s own business noted that the Veteran was unable to stay awake during normal hours. Additionally, another co-worker reported that the Veteran would fall asleep while in client meetings. In October 2020, a vocational assessment was conducted and submitted by Z.F., a certified rehabilitation counselor. After a comprehensive review of the file and an interview with the appellant, Z.F. opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, due to his service-connected narcolepsy. In this regard, he noted that the Veteran had the tendency to abruptly fall asleep while in the middle of work tasks or conversations. Not only did Z.F. find that this would prevent the Veteran from interacting with others in an appropriate and professional manner, which would be considered generally unprofessional, he found that such would also affect his concentration and productivity during the workday, even in unskilled sedentary work. Finally, he noted that the Veteran’s tendency to fall asleep was also a safety concern and would not only risk the health and safety of the Veteran, but also other employees. In a December 2020 brief, the appellant’s representative reported that the Veteran became too disabled to work in approximately 1997. Here, he indicated that in March 2012 written statements, the appellant and the Veteran’s daughter stated that the Veteran’s narcolepsy prevented him from “working a day job,” and therefore, he went into business for himself. The Veteran’s daughter further stated that the Veteran owned and operated a construction business “in an attempt to accommodate his frequent and unpredictable sleeping episodes;” however, the Veteran continued to fall asleep while speaking with clients and during meetings, thus resulting in an inability to manage his business. Based on the foregoing, the Board resolves all doubt in the appellant’s favor and finds that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected narcolepsy. In this regard, the Veteran’s family, friends, and former co-workers have provided competent and credible statements as to how the Veteran’s symptoms interfered with his ability to work. Furthermore, the January 2008 VA examination report reflects the nature of the limitations associated with the Veteran’s service-connected narcolepsy. Here, such support the appellant’s claim for a TDIU as the examiner conceded that the Veteran’s service-connected narcolepsy had significant effects on his usual occupation. Moreover, based on consideration of the entirety of the evidence of record, Z.F. found that the Veteran’s service-connected narcolepsy rendered him unable to secure or follow a substantially gainful occupation. Thus, the Board resolves all doubt in favor of the appellant and finds that a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected narcolepsy and medications taken for such disability. The Board finds that a remand is necessary to obtain an addendum opinion so as to determine the etiology of the Veteran’s low back disorder. In this regard, in its March 2019 decision, the Board relied on a March 2018 VA opinion and denied the claim, finding that the Veteran’s low back disorder was not incurred in or related to service and was not caused or aggravated by his service-connected narcolepsy. However, in the November 2019 JMR, the parties found that the Board did not analyze whether the March 2018 examination was adequate for adjudication purposes. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (explaining that remand is the appropriate remedy where the Board provided an inadequate statement of reasons or bases). Following a full review of the record, the Board observes that VA opinions were provided in March 2012, March 2013, July 2015, and March 2018. Notably, the Board previously found the March 2012 and March 2013 opinions inadequate as such failed to consider statements made by the Veteran and the appellant regarding his history of back pain since service. Additionally, in the August 2016 remand, the Board found the July 2015 opinion inadequate as the VA examiner was unable to provide an opinion regarding whether the Veteran’s back disorder was caused or aggravated by his service-connected narcolepsy without resorting to mere speculation. In this regard, the Board finds that an addendum opinion is necessary to decide the claim as the March 2018 VA opinion did not address all of the theories set forth by the Veteran and the appellant. While the Board is cognizant that that the August 2016 remand only instructed the March 2018 VA examiner to discuss secondary service connection, the Board found the prior opinions inadequate, and did not rely on a medical opinion in denying the Veteran’s claim for direct service connection for his low back disorder in its March 2019 decision. Further, in finding that the Veteran’s low back disorder was not related to his military service, the March 2012, March 2013, and July 2015 VA opinions did not consider the Veteran’s November 2005, June 2007, and March and April 2013 statements reporting a history of low back pain since service. Such opinions further did not consider the appellant’s September 2009 statement that the Veteran’s low back disorder stemmed from when he fell down a flight of stairs in 1965; or the December 2014 statement in which the appellant reports that she believes the 1965 fall was the origin of the Veteran’s lifelong back pain. Thus, the Board finds an opinion adequately addressing direct service connection is necessary to decide the claim. Moreover, in finding that the Veteran’s low back disorder was less likely than not secondary to his service-connected narcolepsy, the March 2018 VA examiner did not provide an opinion on whether the Veteran’s low back disorder was aggravated by his service-connected narcolepsy. As such, an addendum opinion addressing the aggravation prong of secondary service connection is likewise needed. 2. Entitlement to a separate rating or service connection for confusion, irritability, and/or sexual dysfunction, claimed as secondary to medications taken for service-connected narcolepsy. In pertinent part, in its March 2019 decision, the Board relied on the March 2018 VA opinion in denying the appellant’s claim for a separate rating or service connection for sexual dysfunction. Here, the examiner found that the Veteran did not have a chronic disability manifested by sexual dysfunction at least as likely as not proximately due to, the result of, or permanently aggravated by his service-connected narcolepsy and medications taken for such disability. In support thereof, the examiner found that there was no evidence of complaints of, treatment for, or diagnosis of sexual dysfunction other than the appellant’s report; and that the time of onset, character of symptoms, or aggravating factors was unknown. Additionally, the examiner noted that the Veteran’s medication, methylphenidate, was not recognized as a common cause of sexual dysfunction; and that, while the Veteran could experience a “sleep attack” during intimacy occasionally, this would not be characterized as permanent aggravation of the condition. However, in the November 2019 JMR, the parties found that the VA examiner applied the incorrect legal standard when he found that there was no permanent aggravation of the Veteran’s condition. Specifically, the parties noted that the examiner concluded that while the Veteran could have a sleep attack during intimacy occasionally, this would not be characterized as permanent aggravation of his sexual dysfunction. However, in a recent precedential decision, the Court held that service connection based on aggravation by a service-connected disability does not require that there be a “permanent worsening” of the nonservice-connected disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). Thus, another remand is necessary in order to obtain an adequate addendum opinion. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who provided the March 2018 low back disorder opinion. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner. If the March 2018 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a full review of the record, the examiner should offer an opinion as to the following: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s low back disorder had its onset in, or is otherwise related to his military service, to include his August 1963 complaint of back pain, a May 1965 fall from stairs, and any procedure removing a tumor or growth from the Veteran’s back? In rendering such opinion, the examiner must consider and discuss the Veteran’s November 2005, June 2007, and March and April 2013 statements reporting a history of low back pain since service; the appellant’s September 2009 statement that the Veteran’s low back disorder stemmed from when he fell down a flight of stairs in 1965; and the December 2014 statement in which the appellant reports that she believes the 1965 fall was the origin of the Veteran’s lifelong back pain. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s low back disorder is aggravated by his service-connected narcolepsy and/or medications taken for such disability? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 2. Return the record to the VA examiner who provided the March 2018 sexual dysfunction opinion. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner. If the March 2018 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sexual dysfunction was caused or aggravated by his medications taken for service-connected narcolepsy. In offering such opinion, the examiner is requested to consider the March 2018 VA examiner’s statement that the Veteran could experience a “sleep attack” during intimacy occasionally, but such would not be characterized as permanent aggravation of the condition, with the fact that service connection on the basis of aggravation by a service-connected disability does not require that there be “permanent worsening” of the nonservice-connected disability. A rationale for any opinion offered should be provided. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.