Citation Nr: 21013398 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-12 389 DATE: March 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective May 22, 2014. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is granted. REMANDED Entitlement to an increased rating for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling prior to January 22, 2020, and 50 percent thereafter is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for sleep apnea to include as secondary to service-connected disabilities is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 22, 2014, is remanded. FINDINGS OF FACT 1. The evidence of record raises a reasonable doubt as to whether the Veteran’s coronary artery disease (CAD) prevented him from securing and maintaining substantially gainful employment. 2. The Veteran has a single service-connected disability evaluated as totally disabling and additional service-connected disabilities independently rated at 60 percent disabling or more. CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met as of May 22, 2014. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). 2. The criteria for entitlement to SMC at the housebound rate have been met. 38 U.S.C. §§ 1114(s), 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1967. In March 2019 the Board of Veterans’ Appeals (Board) remanded the issues of entitlement to an increased disability rating in excess of 30 percent for PTSD; and entitlement to a TDIU. A June 2020 rating decision increased the evaluation of PTSD to 50 percent disabling, effective January 22, 2020. The Veterans bilateral hearing loss was granted in a separate May 2017 rating decision with an initial, noncompensable (0 percent) rating assigned effective April 24, 2017. An October 2018 rating decision continued the noncompensable (0 percent) rating. The Veteran perfected an appeal of this decision to the Board. Duty to Assist As discussed above, the Board remanded the Veteran’s claim for entitlement to an increased disability rating in excess of 30 percent for PTSD in March 2019. The remand instructed the Agency of Original Jurisdiction (AOJ) to obtain all relevant outstanding VA treatment records from the Vet Center from September 2017 to the present. Following the Board’s remand, the Veteran’s VA treatment records from the Vet Center were not obtained, and the record does not indicate that the AOJ entered the formal determination that such records do not exist or that additional efforts to obtain them would be futile. Because the Board’s remand instructions have not been complied with, the Veteran’s increased rating claims must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 1. Entitlement to a TDIU from May 22, 2014 The Veteran asserts that his service-connected disabilities prevent him from maintaining gainful employment, and a TDIU is therefore warranted. 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. 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 (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. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). The Veteran has been granted service connection for CAD rated 60 percent disabling from May 22, 2014; PTSD, rated 30 percent disabling prior to January 22, 2020 and 50 percent disabling thereafter; hypertension with chronic renal insufficiency rated 10 percent disabling prior to July 8, 2015, and 30 percent disabling thereafter; diabetes mellitus, type II, rated 20 percent disabling from August 25, 2002; diabetic bilateral peripheral neuropathy of the sciatic nerves, rated separately at 10 percent disabling from August 11, 2015; tinnitus, rated 10 percent disabling from April 24, 2017; diabetic peripheral neuropathy of the femoral nerves, rated separately at 10 percent disabling from January 21, 2020; erectile dysfunction, rated as noncompensable from August 25, 2003; carpal tunnel syndrome and peripheral neuropathy upper extremities, rated as noncompensable from June 26, 2008 through December 1, 2009 and; hearing loss, rated as noncompensable from April 24, 2017. His combined rating is 50 percent from March 26, 2008, 80 percent from May 22, 2014, 90 percent from August 11, 2015, and 100 percent from January 22, 2020. Although the Veteran’s combined rating is currently 100 percent, the Board must still consider entitlement to a TDIU based on the Veteran’s CAD. A single service-connected disability that is rated less than 100 percent but nonetheless supports a TDIU rating is sufficient to satisfy the criteria for additional VA benefits. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). As such, the Veteran’s TDIU claim must be considered by the Board. After careful review, the Board finds that the preponderance of the evidence shows that the Veteran is precluded from obtaining and maintaining gainful employment consistent with his education and occupational experience due to his service-connected CAD. The evidence shows the Veteran is a high school graduate. He graduated from a vocational school as an automobile mechanic. He worked as a building maintenance worker from 1979 through 1988. From 1988 through 1995 he worked as an apartment maintenance supervisor. From 1999 through 2006 he worked as a building maintenance worker for a church. In support of his claim, the Veteran’s attorney submitted an October 2018 vocational assessment conducted by a vocational expert who reviewed the lay and medical evidence of record before summarizing the impairments of the Veteran’s service-connected disabilities and their effects on his ability to obtain and sustain employment. The vocational expert conducted a transferable skills analysis utilizing the Bureau of Labor Statistics, Dictionary of Occupation Titles. He opined that although the job is considered skilled with moderated levels of reasoning, mathematical and language requirements, the skills obtained are industry specific and do not transfer directly to alternative sedentary jobs. With respect to the Veteran’s service-connected CAD, the vocational expert noted the Veteran’s history of an ongoing heart condition, which results in difficulty performing all of his basic daily activities of living to completion. He stated the Veteran is experiencing significant episodes of fatigue, dizziness, and angina which prevent him from maintaining a regular and predictable daily or work schedule. He noted a 3-5 METs was documented on a May 2014 ischemic heart disease Disability Benefits Questionnaire (DBQ), which is consistent with activities such as light yard work. The May 2014 DBQ showed the Veteran’s heart condition impacted his ability to work because of unstable angina. The vocational expert opined the negative vocational impact of the Veteran’s physical limitations due to his service-connected CAD, would prevent him from performing any past occupational duties. A January 2020 heart conditions Disability Benefits Questionnaire (DBQ) reflects that the Veteran’s CAD impacts his ability to work. Specifically, the examiner noted the Veteran would likely have difficulty with activities at METs level 3 or higher. METs level 1-3, is consistent with activities such as eating, dressing, taking a shower, and slow walking. In light of the foregoing, the Board finds the medical, lay and vocational expert evidence raises a reasonable doubt as to whether the service-connected CAD, alone would prevent him from securing and maintaining substantially gainful employment consistent with his occupational and educational experience. Thus, resolving all doubt in favor of the Veteran, the Board finds that the claim for entitlement to a TDIU is warranted effective May 22, 2014, the date service connection was awarded for CAD. 2. Entitlement to special monthly compensation SMC is a special statutory benefit that is payable if a veteran has a single service-connected disability rated at 100 percent, or totally disabling, and has and additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Court has held that a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) based on a single disability will satisfy the statutory requirement of a total rating for purposes of 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 291 (2008). The Veteran has a single service-connected disability that is totally disabling for purposes of TDIU and SMC. Upon review of the evidence, the Board finds that the Veteran’s CAD alone prevents him from obtaining and securing substantially gainful employment. The Veteran’s employment history consists of work as a maintenance worker. See October 2018 Vocational Assessment. As noted above, his CAD causes him difficulty in performing all of his basic daily activities of living to completion. The impact of these symptoms alone makes it impossible for the Veteran to secure and maintain substantially gainful employment. The Veteran’s reported employment history consists of work that would be significantly hindered by his ongoing heart condition. Moreover, these symptoms would interfere with his ability to successfully perform work in most occupational settings. Accordingly, the Board finds that the Veteran’s CAD is totally disabling for purposes of considering entitlement to TDIU and SMC. Id. The Veteran has other service-connected disabilities, including PTSD, hypertension with chronic renal insufficiency, diabetes mellitus, type II, diabetic bilateral peripheral neuropathy of the sciatic nerves, tinnitus, diabetic peripheral neuropathy of the femoral nerves, erectile dysfunction, carpal tunnel syndrome and peripheral neuropathy upper extremities, and hearing loss, that are separate and distinct from his CAD. When taken together, and excluding the rating for his CAD, the Veteran’s additional service-connected disabilities have a combined schedular rating of at least 60 percent. Accordingly, the Board finds that SMC at the housebound rate is warranted. See 38 U.S.C. § 1114(s). REASONS FOR REMAND 1. Entitlement to an increased rating for posttraumatic stress disorder, evaluated as 30 percent disabling prior to January 22, 2020 and 50 percent thereafter The Veteran contends that an increased rating is warranted for his service-connected PTSD. As noted above, his appeal was previously remanded by the Board in March 2019 in order for additional evidentiary development to be completed. The Board specifically requested that the AOJ obtain all relevant, outstanding VA treatment records to include treatment records from the Vet Center from September 2017 to the present. A review of the claims file indicates the Veteran planned to resume treatment for his PTSD through the Vet Center. See March 2019 VA treatment record. The treatment records from the Vet Center end in September 2017. There is no indication in the record that the RO attempted to obtain records from September 2017 to the present and no formal finding was made that records beyond September 2017 are unavailable. Accordingly, on remand, all relevant, outstanding treatment records from the Vet Center, should be obtained and associated with the claims file. 2. Entitlement to a compensable rating for service-connected bilateral hearing loss The Veteran seeks entitlement to a compensable rating for his service-connected hearing loss. The record reflects the Veteran was provided a VA audiological examination in January 2020. However, as noted above, the Veteran has outstanding treatment records from the Vet Center. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010). Therefore, because the outstanding Vet Center records could contain information regarding the Veteran’s hearing loss or the functional impairment caused but it, the Board concludes that a remand is necessary to provide the Veteran with an opportunity to have all relevant VA treatment records associated with the file. 3. Entitlement to service connection for sleep apnea to include as secondary to service-connected disabilities, is remanded. The Veteran contends that his sleep apnea is due to his service-connected disabilities. In March 2019, the Board remanded the Veteran’s claim for additional development because the September 2017 VA examiner failed to proffer an opinion regarding whether his sleep apnea was aggravated beyond its natural progression by the Veteran’s service-connected PTSD, coronary artery disease or diabetes. Following the Board’s remand, a December 2019 VA medical opinion was associated with the claims file. Upon review, the Boards finds that the opinion is incomplete, and an additional remand is warranted. The VA clinician opined that the Veteran’s sleep apnea is less likely aggravated beyond its natural progression due to PTSD, diabetes, or CAD pointing to factual data in the opinion. Specifically, the report listed the risk factors associated with sleep apnea along with “common physical findings.” Some of the listed risk factors include service-connected disabilities. The examiner did not explain how these risk factors, which include some service-connected disabilities, did not apply to the Veteran’s case. Instead, no rationale was provided for the proffered opinion. A new medical opinion is therefore necessary. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 22, 2014, is remanded. As noted above, the Board is granting a TDIU rating as of May 22, 2014. The record reflects that the Veteran raised the issue of entitlement to TDIU as part of his PTSD claim in 2013. As a result, entitlement to TDIU prior to May 22, 2014 remains on appeal. The Veteran’s claim for TDIU is inextricably intertwined with the claims being remanded. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending adjudication. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records from the Vet Center for the period from September 2017 to the present. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. Thereafter, obtain an addendum medical opinion from an appropriate medical professional to determine the nature and likely etiology of the Veteran’s sleep apnea. The Veteran’s claims folder must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. After reviewing the record, the examiner should: (a.) Opine as to whether it is at least as likely as not, (50 percent probability or greater), that the sleep apnea was (A) caused or (B) aggravated beyond its normal progression by his service-connected disabilities, to include PTSD, CAD and diabetes, and explain why. Aggravation means an increase in disability – any additional impairment of earning capacity – of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. (b.) In rendering an opinion, the examiner should consider the Veteran’s relevant lay statements if record. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.