Citation Nr: 21014209 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-21 905 DATE: March 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from April 17, 2018. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a TDIU prior to April 17, 2018 is remanded. FINDING OF FACT The Veteran’s service-connected disabilities have prevented him from securing and following a substantially gainful occupation from at least April 17, 2018. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met from April 17, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 to December 1967. A Board hearing was held before the undersigned Veterans Law Judge in August 2019, and a transcript of the hearing is of record. In November 2019, the Board remanded the issues of entitlement to service connection for a low back disability, service connection for hypertension, and entitlement to a TDIU. In a November 2020 rating decision, entitlement to service connection for a lumbosacral strain was granted. As this constitutes a full grant of the benefit sought on appeal for the issue of entitlement to service connection for a low back disability, this issue is no longer before the Board. With respect to the issue of entitlement to service connection for hypertension, following the Board’s remand in November 2019, a supplemental statement of the case was issued on November 6, 2020 denying the Veteran’s service connection claim for hypertension. On January 6, 2021 (62 days following the issuance of the November 6, 2020 supplemental statement of the case), VA received the Veteran’s supplemental claim for entitlement to service connection for hypertension. See January 2021 VA Form 20-0995. Under 38 C.F.R. § 19.2(d)(2), an election for review of a legacy appeal in the modernized system must be filed within the time allowed for filing a substantive appeal under section 19.52(b), in this case 60 days. As the Veteran’s January 2021 supplemental claim for entitlement to service connection for hypertension was not timely submitted, the AOJ did not have jurisdiction to review the claim in the modernized appeal system. Therefore, the Board will proceed with consideration of the Veteran’s appeal for entitlement to service connection for hypertension under the legacy appeal system. The Board regrets the additional delay, but finds remand is once again necessary for the reasons discussed further below. Finally, with respect to the issue of entitlement to a TDIU, the Board remanded this issue in November 2019 to provide the Veteran with proper notice concerning requirements for a TDIU claim and adjudication by the agency of original jurisdiction (AOJ) in the first instance. As discussed further below, the AOJ has substantially complied with the Board’s remand directives, and the Board finds the evidence of record is sufficient to proceed with a decision concerning entitlement to a TDIU from April 17, 2018. The Board regrets the additional delay, but finds remand is necessary for further development concerning the issue of entitlement to a TDIU prior to April 17, 2018. TDIU from April 17, 2018 A total disability rating may be assigned where the schedular rating is less than total when the Veteran is, in the judgment of the rating agency, unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If the Veteran has only one service-connected disability, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. The phrase “unable to secure and follow a substantially gainful occupation” has an economic component and a noneconomic component. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component considers the Veteran’s ability to secure and follow an occupation earning more than marginal income. See 38 C.F.R. § 4.16a (marginal employment shall not be considered substantially gainful employment). The noneconomic component considers such factors as the Veteran’s employment history, education, skill, training, physical ability, and mental ability. The Court of Appeals for Veterans Claims (Court) has held that the Veteran’s ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and the test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this case, the Veteran reported that he was unable to acquire gainful employment because of his disabilities. See August 2012 correspondence. As such, the claim for entitlement to a TDIU was raised by the record, and the Board remanded this issue in November 2019 for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Board finds the current evidence of record is sufficient to grant a TDIU from April 17, 2018, as discussed further below, remand is necessary for additional development before an informed decision can be made on the issue of entitlement to a TDIU prior to April 17, 2018. The Veteran meets the criteria for consideration of a schedular TDIU from April 17, 2018, with a combined evaluation of 80 percent for his service-connected disabilities, which include: posttraumatic stress disorder (PTSD), a bilateral hearing loss disability, a left foot disability, a lumbosacral strain, tinnitus, and dermatophytosis. Additionally, the evidence of record demonstrates the Veteran has not been employed during the period on appeal from at least April 17, 2018, meeting the economic criteria for consideration of a TDIU from at least April 17, 2018. In considering noneconomic component factors, the Veteran reported his highest level of education was high school graduate. See December 2020 VA Form 21-8940. The Veteran served as an Infantryman in the Army, and following service, the Veteran worked as a process operator in a chemical plant for more than 27 years. The Veteran reported his last occupation was as a courier until 2014. See April 2018 VA PTSD examination. With respect to the Veteran’s physical ability to secure and follow substantially gainful employment, the evidence of record demonstrates that the Veteran’s service-connected left foot disability impairs his ability to stand and walk due to pain. The Veteran’s service-connected lumbosacral strain impairs his ability to sit, stand, or walk for prolonged periods of time, as well as his ability to bend and lift. The Board notes that based on the Veteran’s education, training, and previous employment, his occupations have been limited to work that requires a physical ability to walk, stand, and bend. The Board finds such occupational requirements are not realistically within the Veteran’s current physical capabilities due to his service-connected left foot and back disabilities. Additionally, the Veteran’s service-connected tinnitus reportedly interferes with his ability to concentrate, and his service-connected hearing disability impairs his ability to communicate with others. With respect to the Veteran’s mental ability to secure and follow substantially gainful employment, the evidence of record demonstrates the Veteran’s service-connected PTSD results in intrusive symptoms, persistent avoidance behaviors, persistent and exaggerated negative beliefs and distorted cognitions, and irritable behavior and angry outburst with little or no provocation. The medical evidence of record demonstrates that the Veteran’s PTSD symptoms cause clinically significant functional distress or impairment. Such evidence supports a finding that the Veteran would be limited from occupations requiring social interaction. Resolving reasonable doubt in favor of the Veteran, the Board finds that he is unable to secure and follow substantially gainful employment due to his service-connected disabilities. Accordingly, entitlement to a schedular TDIU is granted from April 17, 2018. REASONS FOR REMAND Hypertension In this case, the Veteran seeks entitlement to service connection for hypertension, to include as due to exposure to Agent Orange. See March 2010 VA Form 21-526; see also November 2011 notice of disagreement; July 2012 correspondence from the Veteran. The Board remanded the Veteran’s claim in November 2019 to afford the Veteran a VA examination to address the nature and etiology of his hypertension. Of note, the Board directed the examiner to consider and comment on a November 2018 National Academy of Sciences (NAS) report that moved hypertension from the “limited or suggestive” to “sufficient” category for association with herbicide agents. See Veterans and Agent Orange: Update 11 (2018). The Veteran was afforded a VA examination in November 2020. The examiner did not directly offer an opinion as to whether it is at least as likely as not that the Veteran’s hypertension had onset in or is otherwise related to service, to include his presumed in-service exposure to herbicide agents. Instead, the examiner noted that hypertension has not been officially recognized as presumptively related to herbicide exposure. See also 38 C.F.R. § 3.309(e). Without indication of any consideration of the November 2018 NAS report, the examiner cited information from a medical website that listed various risk factors for hypertension, which did not include exposure to herbicide agents. The examiner’s medical opinion contains no clinical rationale or explanation concerning the weighing of various risk factors for hypertension as they may pertain to this specific Veteran. Additionally, if the examiner found greater probative value in the medical website referenced in his opinion than the November 2018 NAS study, such was not supported with a clinical rationale or explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). In light of the above, the Board finds remand is necessary to obtain a new medical opinion concerning the nature and etiology of the Veteran’s hypertension. TDIU prior to April 17, 2018 The issue of entitlement to TDIU was raised as part and parcel of the Veteran’s claim for an increased initial evaluation of his left foot disability from March 31, 2010. Rice, 22 Vet. App. 453-54. As such, the Board decision herein, awarding a TDIU from April 17, 2018, constitutes only a partial grant of the benefit sought on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board finds remand is necessary pertaining to the issue of entitlement to a TDIU prior to April 17, 2018, as it is not clear from the evidence of record when the Veteran was last employed in a substantially gainful occupation. On the Veteran’s December 2020 Application for Increased Compensation Based on Unemployability, he reported he became too disabled to work due to his service-connected disabilities in February 2002. However, during an April 2018 VA PTSD examination, the Veteran reported he worked as a courier until 2014. The Board finds remand is necessary for clarification of the Veteran’s employment history, to include whether his reported work as a courier until 2014 qualifies as substantially gainful employment. Additionally, the Board finds remand is necessary as the Veteran’s claim for entitlement to service connection for hypertension, which is also being remanded in the decision herein, may have a bearing on the outcome of the issue of entitlement to a TDIU prior to April 17, 2018. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate medical professional concerning the nature and etiology of the Veteran’s hypertension. The reviewing clinician must review the claims file. If the clinician determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for a new examination. Based on a review of the record, and if necessary, a new examination, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had onset in or is otherwise related to service, to include his presumed in-service exposure to herbicide agents. In providing the above medical opinion, the clinician should consider and comment upon the November 2018 NAS report that moved hypertension from the “limited or suggestive” to “sufficient” category for association with herbicides. A complete medical rational for all opinions expressed must be provided. 2. Request that the Veteran complete and return a VA Form 21-8940, Veterans Application for Increased Benefits Based on Unemployability, or a statement that otherwise includes his employment and financial information, including his income history, the number of hours worked, the type of work performed, and the amount of time lost due to service-connected disability or disabilities. In particular, the Veteran should be asked to provide additional information about any employment as a courier through 2014, as reported at his April 2018 PTSD examination. Invite the Veteran to submit additional supporting documentation including tax returns or statements from his current or former employers. For any employment that the Veteran considers to be marginal as due to a protected work environment, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. 3. Readjudicate the issues on appeal. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case, and inform the Veteran of his appeal options. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.