Citation Nr: 21012872 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-49 905 DATE: March 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease (GERD) and hiatal hernia status post repair is remanded. Entitlement to an effective date prior to February 3, 2015 for the assignment of a 30 percent rating for GERD and hiatal hernia status post repair is remanded. Entitlement to a temporary total rating for convalescence following surgeries in February 2016 and June 2016 is remanded. FINDING OF FACT The Veteran’s service-connected disabilities as likely as not preclude gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1984 to January 2005. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing. A transcript of his testimony is of record. These matters were last before the Board in November 2019, when they were remanded for additional development. 1. Entitlement to a TDIU The Veteran asserts that he is unable to gain or maintain employment due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the 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, or 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). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Initially, the Board notes that the Veteran has met the schedular requirements for a TDIU throughout the pendency of the appeal, with a 50 percent rating for sleep apnea with asthma, a 50 percent rating for tension headaches, a 30 percent rating for GERD and hiatal hernia, a 10 percent rating for osteoarthritis of the left knee, a 10 percent rating for tinnitus, and various noncompensable disabilities. The Combined rating for service-connected disabilities has been 80 percent or 90 during the appeal period. Accordingly, the claim turns on whether his service-connected disabilities preclude substantially gainful employment consistent with his education and occupational experience. On November 2014 VA Forms 21-8940, the Veteran reported that he had last worked in August 2011 as a corrections officer and that he was unable to work because of his service-connected headaches, asthma, sleep apnea, tinnitus, left knee, and “gastro problems.” He noted that he had a high school education and military training. A November 2014 VA Form 21-4192 from the Florida Department of Corrections indicates that the Veteran last worked as a correctional officer on August 22, 2011 and that he “had to resign secondary to disabilities.”   In an October 2014 correspondence, G. Uribe, ARNP, opined that it was more likely than not that the Veteran’s service-connected disabilities render him unable to perform substantially gainful employment. She stated that due to the Veteran’s current level of pain and physical disabilities, some of which were chronic and progressive in nature, he would not be capable of performing substantially gainful employment in his usual vocation. She further opined that he would also not be capable for full time sedentary work within other vocations due to his limited high school education. She reported that his sleep apnea resulted in daytime somnolence, fatigue, and headaches that would diminish his concentration, attention and higher-level executive functioning on tasks. She further noted that his social interactions and behaviors may also be affected due to fatigue with irritability. She noted that this would also present safety concerns that would prohibit him from working in a hazardous environment and require caution operating machinery. She opined that because of his headaches he would have difficulty directing attention to his duties due to sensory hypersensitivity and that he would have difficulty remaining on task. She noted that he would also become incapacitated during episodic prostrating headaches, which would cause absenteeism and tardiness. She opined that he would have pain and difficulty with squatting, kneeling, crawling, quick movements, prolonged weight bearing, as well as prolonged sitting due to his left knee disability. She opined that his GERD would result in pain, reflux, and possible nausea after meals that would affect his comfort and concentration to complete tasks. She further noted that the Veteran would also have the potential for various side effects due to the medications he took for his service-connected disabilities. She opined that he may have difficulty with focusing and concentrating on work due to the side effects of his multiple medications, which include a quasi-narcotic medication (Tramadol). She noted that some of his medications independently, much less together, cause side effects of drowsiness, confusion, fatigue, and malaise. Therefore, the side effects of his medications may also create safety concerns in the workplace not only for the Veteran but also his co-workers.   Regarding his education and training, she noted that the Veteran had only a high school education and very limited vocational background. She noted that he spent 21 years in the military as an artillery specialist and recruiter and opined that his skills from those jobs were not transferable to the civilian sector. She noted that although he also had experience has a correctional officer he was no longer able to pass the required physical examination for that position or meet the necessary physical and high level cognitive requirements necessary to safely perform that job as his physical and mental deficits would put the Veteran, his co-workers, inmates, and the public at risk. She stated that, given the above factors, the Veteran was more likely than not unable to obtain and maintain substantially gainful employed due to the physical and cognitive functional deficits caused by his service-connected disabilities. In an October 2015 disability benefits questionnaire (DBQ), Dr. Dominguez stated that the Veteran’s headaches were severe enough at times that he would need to lay down. It was noted that the Veteran had prostrating attacks of non-migraine headache pain more than once per month. Dr. Dominguez opined that the Veteran was unable to work due to his severe headaches. In an October 2015 DBQ, Dr. Dominguez stated that the Veteran’s GERD symptoms included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance, nausea, and vomiting. He opined that the Veteran would be unable to perform duties when he had GERD pain exacerbations as the Veteran would need to rest. At his August 2019 hearing, the Veteran testified that he previously worked as a corrections officer but was unable to do so because of his service-connected headaches, GERD, and left knee disability. He reported that he was unable to sit or stand for long periods. He noted that he walked with a cane because of his service-connected left knee disability. He further noted that when his GERD was bad, he was unable to bend down and would need to go lay down because the pain was so severe. He also reported having nausea and vomiting after eating. Regarding his headaches, he reported that his headache pain also was severe enough that he had to lay down and close his eyes. Social Security Administration (SSA) records, received in December 2019, indicate that the Veteran had been found to be disabled since August 2014 with a primary diagnosis of inflammatory bowel disease and osteoarthritis and allied disorders. A March 2013 assessment of vocational factors notes that the Veteran’s prior work experience included as a soldier and correctional officer, which was considered semi-skilled work that was medium to heavy in nature. A March 2020 VA esophageal conditions examination report notes that the Veteran’s GERD and hiatal hernia post fundoplication would cause functional limitations performing employment tasks that required more than minimal to moderate exertion. In a corresponding statement, the examiner indicated that, due to his service-connected disabilities, the Veteran would be limited to sedentary work. After reviewing the evidence and resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's service-connected disabilities as likely as not precluded substantially gainful employment consistent with his education and occupational training. The private and VA evaluations consistently indicate that the Veteran's service-connected disabilities would preclude moderate or heavy physical labor. Additionally, the evidence indicates that the Veteran's disabilities and the medication taken therefore would result in chronic daytime fatigue, compromised attention, and make him prone to irritability. While there is conflicting evidence regarding whether the Veteran would be capable of performing sedentary employment tasks, given his limited education and his occupational experience in medium to heavy physical employment fields, including as a soldier and correctional officer, there is no indication the Veteran has the transferable skills needed for such employment. Given the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that due to his service-connected disabilities the Veteran is unable to secure and follow a substantially gainful occupation consistent with his education and work history. Accordingly, entitlement to TDIU is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for GERD and hiatal hernia status post repair is remanded. 2. Entitlement to an effective date prior to February 3, 2015 for the assignment of a 30 percent rating for GERD and hiatal hernia status post repair is remanded. 3. Entitlement to a temporary total rating for convalescence following surgeries in February 2016 and June 2016 is remanded. The evidence indicates there may be outstanding relevant VA treatment records. An October 18, 2019 VA treatment record indicates that the Veteran was to return for follow up appointments on January 30, 2020, March 12, 2020, March 19, 2020, June 22, 2020, and October 13, 2020. VA treatment records dated after November 4, 2019 have not been associated with the claims file. Additionally, VA record entries from a July 12, 2017, September 26, 2016, and April 25, 2016, and February 6, 2015 note that the Veteran’s total and permanent disability application papers, a September 23, 2016 pre-operative and post-operative assessments, and non-VA care records from April 25, 2016 and October 29, 2014 had been scanned. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In pertinent part, the November 2019 remand requested an opinion addressing the Veteran’s testimony that his GERD caused a 55 pound unintentional weight loss. While an opinion was obtained in March 2020, the clinician’s opinion is internally inconsistent. Specifically, although she initially stated that it would be impossible to determine if the Veteran had an unintentional weight loss of 55 pounds due to his GERD, she later stated that the Veteran’s weight loss post-surgery would not be considered to be unintentional as he was considered morbidly obese and his weight loss would be a welcomed side effect of his fundoplication surgery. Accordingly, an addendum opinion is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2019 remand also requested an opinion addressing whether the February 2016 and June 2016 surgeries were related to treatment for the Veteran’s service-connected GERD and hiatal hernia status post repair. While the requested opinion was obtained in March 2020, the clinician did not address the February 5, 2016 treatment record from Dr. Armstrong or the August 29, 2019 statement from Dr. Dominguez noting that GERD “can produce” anal fistula, constipation, fissure, and fecal incontinence. Accordingly, an addendum opinion is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated since November 4, 2019 as well as the scanned records referenced in the July 12, 2017, September 26, 2016, April 25, 2016, and February 6, 2015 VA record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, forward the claims file to an appropriate VA clinician to determine whether the Veteran’s GERD hiatal hernia status post repair or treatment therefore resulted in material weight loss that was productive of severe impairment of health. The examiner should address the Veteran’s testimony that the Veteran’s GERD symptoms resulted in 55 pounds of unintentional weight loss (he testified that he weighed 367 pounds and weighed 312 pounds at the time of his Board hearing). A complete rationale should be provided for all opinions and conclusions expressed. 3. After records development is completed, forward the claims file to an appropriate VA clinician to determine whether the Veteran’s February 2016 and June 2016 surgeries were related to his service-connected GERD. Following review of the claims file, the examiner should indicate: (a.) Whether the Veteran's fecal incontinence and anal fistula are at least as likely as not symptoms, manifestations, or maturation of the Veteran's service-connected GERD and hiatal hernia status post repair. (b.) Whether the February 2016 and June 2016 surgeries were at least as likely as not related to treatment for the Veteran’s service-connected GERD and hiatal hernia status post repair. In so opining, the examiner should address the February 5, 2016 treatment record from Dr. Armstrong indicating that the Veteran had a pertinent medical history of, inter alia, “GERD and symptoms related to the need for current treatment including fecal incontinence, seepage and anal fissures” as well as the August 29, 2019 statement from Dr. Dominguez noting that GERD “can produce” anal fistula, constipation, fissure, and fecal incontinence. (c.) If and only if, the Veteran’s fecal incontinence and anal fistula are symptoms, manifestations, or a maturation of his service-connected GERD and hiatal hernia status post repair or his February 2016 and June 2016 surgeries are found to be related to his service-connected GERD and hiatal hernia status post repair, state whether, following his February 2016 and June 2016 surgeries, the Veteran required a period of convalescence and, if so, how long of a period of convalescence was required. A complete rationale should be provided for all opinions and conclusions expressed. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.