Citation Nr: 21010635 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 97-17 295 DATE: February 25, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) from January 31, 2007 to July 17, 2013 is granted. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a right hip disability, is remanded. Entitlement to service connection for a back disability, to include as secondary to a right hip disability, is remanded. Entitlement to service connection for headaches, to include as secondary to a back disability, is remanded. FINDING OF FACT From January 31, 2007 to July 17, 2013, when resolving reasonable doubt in the Veteran’s favor, his service-connected posttraumatic stress disorder (PTSD), major depressive disorder, mood disorder, and psychotic disorder, not otherwise specified, rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW From January 31, 2007 to July 17, 2013, the criteria for a TDIU were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to January 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional office (RO) in February 1997, April 1997, June 2008, and April 2013. This appeal has a complex procedural history that was recounted in a November 2019 Board decision. These issues were most recently remanded by the Board in August 2020. In that remand, regarding the Veteran’s TDIU claim, the Board observed that because a TDIU was in effect from July 18, 2013 (and because the Veteran was in receipt of a total schedular rating from that date forwards), the appropriate issue on appeal was whether entitlement to an earlier effective date for the award of TDIU was warranted at any time from January 31, 2007 to July 17, 2013. As explained below, the Board has determined the criteria for a TDIU were met for that entire period, and is therefore granting the claim in full. Regarding the remaining service connection claims, the Board recognizes there have been many prior remands, and much delay for the Veteran. Unfortunately, however, yet another remand is necessary to ensure substantial compliance with the Board’s prior remand directives. 1. Entitlement to a TDIU from January 31, 2007 to July 17, 2013 The Veteran contends he is unable to work due to his service-connected PTSD and associated symptomatology. For the reasons discussed below, the Board agrees that a TDIU is warranted. As the Board has explained in previous decisions and remands, the instant appeal dates from the Veteran’s January 2007 claim for increased disability compensation. Beginning on January 31, 2007, the Veteran was in receipt of service connection for PTSD, major depressive disorder, mood disorder, and psychotic disorder, not otherwise specified, rated as 50 percent disabling. (He was also in receipt of a noncompensable rating for service-connected epididymitis, but there is no evidence to indicate that disorder impacted his ability to work.) As a result, the Veteran did not satisfy the schedular criteria for TDIU prior to July 18, 2013. See 38 C.F.R. § 4.16(a) (to qualify for TDIU, the evidence must show that a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent). Notwithstanding, it is VA policy that a TDIU will be awarded whenever a claimant is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b). When, as here, the Veteran does not meet the numerical requirements of 4.16(a), the Board may not award a TDIU in the first instance, but rather may only refer the case to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b); see also Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). In this case, the Board referred the matter of entitlement to a TDIU on an extraschedular basis to the Director for consideration as part of its August 2020 remand. In December 2020, the Director issued an advisory opinion declining to recommend an award of TDIU. This finding is not binding on the Board. See Anderson v. Shinseki, 22 Vet. App. 423, 427-29 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board). The matter now returns to the Board for review, the relevant question being whether the Veteran’s service-connected PTSD, major depressive disorder, mood disorder, and psychotic disorder, not otherwise specified, rendered him unable to secure and follow a substantially gainful occupation during the relevant period. The Veteran has submitted records from the Social Security Administration (SSA) indicating he was found disabled by that agency, effective in March 2001. The SSA records show this decision was based on the severity of the Veteran’s major depression with psychosis; the report cited a psychiatric evaluation in which the Veteran was noted to have presented with “bizarre symptoms with psychotic features which have not been relieved by medication.” The evaluation noted the Veteran’s mental impairment had moderate limitations in his activities of daily living; marked limitations in his social functions; marked deficiencies of concentration; and one or two episodes of decompensation. The SSA report further noted the Veteran’s VA treatment history reflected he would appear disheveled in appearance, anxious, and very guarded, and showed limited insight and judgment. The Veteran’s VA medical records show he was followed for psychiatric symptoms throughout the appeal period. For example, a mental health progress notes from 2007 indicated he was still dealing with trauma related to an in-service assault, and was struggling with increased anxiety and frustration and circumstantial thoughts, needing redirection; one examiner remarked the Veteran was “clearly easily paranoid” in part as a response to his in-service trauma. In September 2007, the Veteran submitted a VA Form 21-8940 in which he stated he had not worked since 1995. A March 2010 report authored a private therapist (and supervised by a psychologist) indicated the Veteran “should be monitored closely for suicidal and aggressive ideation” and in general should “continue to receive close monitoring by a psychologist” in light of a variety of mental health symptoms. The report noted the Veteran continued to experience trauma from his in-service assault, which had caused a “high level of psychological turmoil” and a “great deal of emotional distress.” This distress had, in turn, caused the Veteran to become confused and disorganized, anxious, and irritable. He experienced frequent obsessive, ruminative thinking patters and compulsive behavior, got “little enjoyment out of life,” and was “overwhelmed by even mundane responsibilities.” In addition, the Veteran displayed severe social impairment due to a general distrust and suspiciousness of others (the report noted this was likely due to the assault). The report noted the Veteran “often shows hostility and aggression toward others.” A May 2010 VA mental health medication management note indicated the Veteran continued to present with PTSD secondary to sexual trauma, with psychotic features; the examiner observed the Veteran continued to remain hypervigilant with some paranoid ideations. The Veteran was very circumstances and the examiner noted it was “hard to have a focused session.” In July 2012, the Veteran underwent a VA PTSD Compensation and Pension (C&P) examination. Although the examiner concluded the Veteran only experienced occupational and social impairment with occasional decrease in work efficiency, the examination report paints a much bleaker picture of the Veteran’s mental health. The report noted the Veteran was divorced and was estranged from his daughter and had been unemployed since around 2000 after he was forced to seek mental health treatment. The examiner noted current symptoms of depressed mood, anxiety, suspiciousness, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The report noted the Veteran indicated he experienced hallucinations, although the examiner was skeptical of this. In addition, the examiner observed the Veteran “frequently los[t] track of the conversation and engag[ed] in rambling speech.” He was noted to have fallen asleep nine times during one 90-minute session. The examiner observed the Veteran displayed poorly developed social skills and engaged in behaviors that were generally inappropriate, such as repeatedly readjusting his belt and pants. Although he was oriented, his cognitive skills and thought processes were below average. The examiner noted the Veteran reported a severe, and atypical, pattern of delusions and false beliefs, including paranoid/persecutory beliefs concerning the men who assaulted him in service. He noted at one point the he had the “mark of the warlock” which allowed him to do “channeling brain scanning.” The Veteran stated he had suicidal and homicidal thoughts often (although the examiner noted the Veteran seemed to overreport these symptoms). In this case, the Board finds the pertinent evidence, including the detailed and alarming symptoms noted in the VA C&P report, SSA determination, March 2010 private psychological evaluation, and VA outpatient mental health care records discussed above reflects that the Veteran’s psychiatric symptoms can fairly be said to have prevented him from being able to function in any job setting for the entirety of the period under review. In short, it is clear the Veteran’s service-connected PTSD and associated depression, mood disorder, and psychotic disorder manifested in severe, at times bizarre symptomatology, and made it extremely difficult for him to function, much less sustain substantially gainful employment. The Board recognizes some questions have been raised as to the veracity of the Veteran’s self-reports. Notwithstanding, the comprehensive psychological evaluations of record show that the Veteran’s PTSD and associated disorders resulted in debilitating symptoms and inappropriate behavior on a regular basis. Clearly, the Veteran’s service-connected PTSD has caused him to be unable to secure or follow a substantially gainful occupation. Thus, entitlement to a TDIU is warranted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), as of January 31, 2007, the date VA received the instant claim for increased disability compensation. Accordingly, the claim will be granted in full. REASONS FOR REMAND 2. Entitlement to service connection for a right hip disability is remanded. The Veteran contends his right hip disability, which has been diagnosed as arthritis, was incurred in or is otherwise related to his service. At the outset, the record shows, and the Board has previously determined, that the Veteran was treated for right hip pain prior to entering service. However, as discussed in a March 2017 Joint Motion for Remand (JMR), because a right hip disability, per se, was not “noted” on his 1968 enlistment examination report—the report merely noted a painful right hip—the presumption of soundness is for application. Accordingly, the crucial question in this case, in light of that presumption, is whether there is clear and unmistakable evidence to demonstrate both (a) that the Veteran had a right hip disability that existed prior to service, and, if so, (b) whether such disability was not aggravated by active service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In its August 2020 remand, the Board concluded there was insufficient medical evidence of record to answer these questions and directed the RO to obtain a medical opinion. A responsive opinion was provided in September 2020. The opinion found, first, that there was “evidence of a chronic right hip disability prior to service”; that the Veteran “clearly” had been under the care of a physician for right hip pain; and that “it was noted that upon enlistment that he received a designation of ‘L-2’ indicating that he may have some limitations due to his right hip.” Second, the examiner found the Veteran’s treatment in March 1968 was prior to enlistment, and there was “no indication that the right hip was aggravated beyond natural progression” in service. In support of this finding, the examiner reasoned the Veteran’s “X-ray studies remained normal” and noted, “his separation physical indicated lower extremities were normal.” The Board regrettably finds the September 2020 VA opinion to be inadequate, as it fails to address all pertinent evidence and does not apply the appropriate legal standards regarding the presumption of soundness. Most notably, the opinion completely ignores the fact the Veteran was treated in July 1968 for right hip pain and also in January 1970 (immediately prior to his separation) for (admittedly somewhat ambiguous) right leg problems. These in-service records seem to suggest the Veteran’s symptoms may have been aggravated in service; unfortunately, the examiner did not address them at all. This is particularly important in light of VA’s burden to prove by “clear and unmistakable” evidence that the Veteran’s right hip disability both preexisted service and was not aggravated in service. 3. Entitlement to service connection for a left hip disability, to include as secondary to a right hip disability, is remanded. 4. Entitlement to service connection by a back disability, to include as secondary to a right hip disability, is remanded. 5. Entitlement to service connection for headaches, to include as secondary to a back disability, is remanded. The Veteran’s claims for service connection for a left hip disability, back disability, and headaches are in part dependent upon the outcome of his claim for service connection for a right hip disability. As such, these issues are inextricably intertwined and should be remanded as well. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his right hip disability. The examiner is asked to review the claims file and provide the following information: (a) Is there clear and unmistakable (obvious and manifest) evidence demonstrating that the Veteran had a right hip disability that existed prior to his entry into active duty? (b) If the answer to (a) is “Yes,” is there clear and unmistakable (obvious and manifest) evidence demonstrating that the Veteran’s right hip disability was not aggravated (i.e., the underlying disability was not increased in severity) beyond its normal progression during his period of active duty? • The examiner should specifically discuss the July 1968 treatment note indicating ongoing right hip pain, as well as the January 1970 note indicating right leg problems. • The examiner should discuss in detail the Veteran’s lay reports regarding the chronology of his symptoms. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. 2. If service connection for the Veteran’s right hip disability is established, obtain medical opinions from appropriate examiner(s) regarding the etiology of the Veteran’s left hip disability and back disability. The examiner(s) are asked to review the claims file and provide the following information: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left hip disability was caused or aggravated by his right hip disability? (b) Is it at least as likely as that the Veteran’s back disability was caused or aggravated by his right hip disability? The examiner(s) should set forth all examination findings, with a clear rationale for the conclusions reached. (Continued on the next page)   3. If service connection for the Veteran’s back disability is established, obtain a medical opinion from an appropriate examiner regarding the etiology of the Veteran’s headaches. The examiner is asked to review the claims file and opine whether it is as least as likely as not that the Veteran’s headaches were caused or aggravated by his back disability. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.