Citation Nr: 21022317 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-25 239 DATE: April 15, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due multiple service-connected disabilities from March 7, 2013 to September 17, 2018 is granted. A TDIU due service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain from September 18, 2018 is granted. Special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i) from September 18, 2018 is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from March 7, 2013 to September 17, 2018. 2. The evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain as of September 18, 2018. 3. Beginning on September 18, 2018, the Veteran’s TDIU is granted solely due to the Veteran’s service-connected heart disability and his service-connected PTSD is independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for a TDIU from March 7, 2013 to September 17, 2018 are met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16(a). 2. The criteria for a TDIU due solely to service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain from September 18, 2018 are met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16(a). 3. The criteria for the assignment of SMC at the statutory housebound rate are met as of September 18, 2018, but not earlier. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1992 to November 2006. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a TDIU. The Veteran’s notice of disagreement (NOD) was received in November 2014. The RO issued a statement of the case (SOC) in May 2016. The Veteran’s VA Form 9, substantive appeal to the Board, was received in June 2016. In September 2019, the Board denied the claim. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a July 2020 Order, the Court vacated the Board’s September 2019 decision and remanded the matter pursuant to a July 2019 Joint Motion for Remand (JMR). 1. Entitlement to a TDIU due to service-connected disabilities from March 7, 2013 to September 17, 2018. 2. Entitlement to a TDIU due solely to service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain as of September 18, 2018. The RO received a completed VA 21-8949, Veterans Application for Increased Compensation Based on Unemployability in May 2013 asserting that his service-connected PTSD and hypertension prevents him from securing or following any substantially gainful occupation. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a), a veteran is not required to submit proof that he is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. Id. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. The Veteran’s service-connected disabilities from March 7, 2013 to September 17, 2018 are as follows: PTSD, evaluated as 70 percent disabling, heart disease, enlarged heart, leaky valve, abnormal T wave, mitral valve problem, and chest pain associated with hypertension, evaluated as 30 percent disabling from June 30, 2015; hypertension, evaluated as 10 percent disabling prior May 8, 2013 and 20 percent disabling as of May 8, 2013; residual scars, degenerative joint disease of the right index finger, evaluated as noncompensable prior January 23, 2017 and 10 percent as of January 23, 2017; degenerative joint disease of the right index finger, evaluated as noncompensable; and erectile dysfunction associated with hypertension, evaluated as noncompensable. The combined evaluation for compensation from August 2, 2010 to May 8, 2013 is 70 percent, from May 8, 2013 to January 23, 2017 is 80 percent, and from January 23, 2017 to September 17, 2018 is 90 percent. As of September 18, 2018, the Veteran’s service-connected disabilities are as follows: PTSD, evaluated as100 percent disabling, heart disease, enlarged heart, leaky valve, abnormal T wave, mitral valve problem, and chest pain associated with hypertension, evaluated as 30 percent disabling; hypertension, evaluated as 20 percent disabling; residual scars, degenerative joint disease of the right index finger, evaluated as 10 percent disabling; degenerative joint disease of the right index finger, evaluated as noncompensable; and erectile dysfunction associated with hypertension, evaluated as noncompensable. Thus, the Veteran met the schedular criteria for an award of TDIU pursuant to the provisions of 38 C.F.R. § 4.16(a) throughout the appeal period. The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. The sole fact that a veteran 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 a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the evidence is at least evenly balanced as to whether the Veteran’s service-connected PTSD and hypertension prevented him from being unable to secure or follow substantially gainful employment from March 7, 2013 to September 17, 2018. The evidence is also evenly balanced as to whether the Veteran’s service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, mitral valve problem, and chest pain have rendered him unable to secure or follow a substantially gainful occupation from September 18, 2018. In this regard, the Veteran asserts that his service-connected disabilities prevent him from securing or following any substantially gainful occupation. See VA Form 21-8940 received in June 2012 and May 2013. The Veteran noted in the June 2012 VA Form 21-8940 that his disability affected full time employment in June 2012 and he last worked full time in June 2012. He reported that in December 2011 he became too disabled to work. However, in the May 2013 VA Form 21-8940, the Veteran stated that his disability affected full time employment in June 2012 and the date he last worked full time was on March 7, 2013. He listed that he worked full time for JFHQ Defense Movements Coordinator as a traffic manager from December 2009 to October 2012, TSI Corps as a Logistics Manager from August 2012 to March 2013, and the United States National Guard from January 2008 to May 2012. He noted that he made $68,000 in 2012, his highest gross earnings at TSI Corps was $5100 per month, and his total earned income for the past twelve months was $53,000. The Veteran stated in the May 2013 VA Form 21-8940 that he has tried to obtain employment since he became too disabled to work and listed three companies that had jobs in logistics that he had applied to in the past five months. The Veteran graduated from high school and completed three years of college. The Veteran stated that he was able to do some physical work, but he cannot regulate his blood pressure to his uncontrollable hypertension. Turning to the medical evidence of record, VA treatment record show that the Veteran attended bi-weekly PTSD group and individual counseling about once per month. An October 2014 VA treatment record documents that the Veteran reported feeling more depressed and suicidal over the past several weeks. He also noted that he was experiencing audio hallucinations. He was not sleeping well due to intrusive memories and nightmares. He denied homicidal ideation. He also asked the psychiatrist how he might know if he needed to go inpatient. A February 2015 VA treatment record documents that the Veteran reported chronic suicidal ideation. He had unwanted thoughts and dreams about his military experiences. The Veteran explained that he should have died, and he cheated death, resulting in death “taunting him.” The Veteran reported a suicidal gesture of holding a gun and thinking about it. The Veteran also reported experiencing poor concentration. His appearance was unkempt and unusual dress. The Veteran was oriented to person, place, time and situation. Speech was clear and coherent. Thought process was relevant, but disorganized and rambling. A March 2015 VA treatment record shows that the Veteran demonstrated immediate and remote impaired memory. Mood was dysphoric. He had the following neurovegetative signs of depression: initial onset insomnia, middle onset insomnia, reduced interests, guilt, reduced energy, reduced concentration, decreased appetite, thoughts of death/dying, and agitation. An April 2015 VA treatment record showed that the Veteran had daily suicidal thoughts; however, he denied a plan. He was separated from his second wife. He had eight children that he did not have custody. An August 2015 VA treatment record noted that the Veteran had homicidal ideation toward his ex and her boyfriend. He stated that these thoughts have been present for two years and they were no increase or worsening in thoughts. He stated that she lives in another city, he is not going to do anything, and he does not have a plan. The Veteran reported difficulties with the divorce and parental rights issues. He denied any recent violence. The Veteran reported chronic depression and suicidal ideation. The Veteran stated that he knows suicide is not the answer and that is why he sold his guns. The Veteran declined hospitalization, but he was agreeable to keep upcoming appointments and continuing medications. A January 2016 VA treatment record documents the Veteran’s frustration at finding jobs that would require him to not be on medications. He is not permitted to use certain drugs that he currently needs for jobs in transportation or logistics that require driving for long distances. The Veteran felt disillusioned with his goals. A February 2016 VA treatment record documents that the Veteran reported daily suicidal ideation and thoughts about death and dying. He had fair grooming and hygiene with unkempt dress. Impaired remote memory and mildly distractible. The Veteran was oriented to person, place, time, and situation. His mood was dysphoric. Affect was restricted. Thought process was generally relevant, but circumstantial, perseverative, and mildly disorganized. His thought content was paranoid and persecutory delusions. Judgment and insight were fair. A January 2014 VA examination shows that the Veteran’ reported that his hypertension was difficult to treat, and it has become worse even under medication. His blood pressure exceeded 190 on stress test. The examiner noted that the Veteran had a history of diastolic blood pressure elevation to predominately 100 or more. The examiner noted that the Veteran’s frequency and severity of diastolic blood pressure elevation is almost daily with current hypertension regime. He was prescribed Hydrochlorothiazide and Amlodipine. His current blood pressure readings were 159/115, 16/115, and 173/116. The examiner determined that the Veteran’s hypertension did not impact his ability to work. The Veteran underwent a VA examination for PTSD in September 2014. The Veteran reported having past difficulties with authority in his previous jobs and he preferred to work independently. The examiner documented that the Veteran’s symptoms included the following: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and flattened affect. The examiner concluded that the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity. A December 2015 VA examination for hearing conditions shows that the Veteran as diagnosed with hypertensive heart disease. The Veteran reported that his blood pressure at rest “fine,” but whenever he moves “it shoots up.” An October 2015 EKG revealed left ventricular hypertrophy. Chest x-ray revealed his heart size was in the upper limits of normal. LVEF of 67 percent. Interview-based METS test revealed that the Veteran experienced fatigue and angina at a METS level of 5-7, which is consistent with activities such as walking, one flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging); which was the lowest activity level at which the Veteran reported any of the above symptoms. The Veteran’s VA psychologist wrote a letter in May 2016. The VA psychologist noted that during the time the Veteran has been in his care, the Veteran has been assessed for PTSD and major depressive disorder using several diagnostic tools and his scores on these measures consistently indicate symptom severity. In therapy sessions, the Veteran has endorsed symptoms of PTSD, including hyperarousal, hypervigilance, increased startle response, and avoidance of places and situations that remind him of his traumatic experiences. The psychologist noted that the Veteran struggles with ongoing issues of anger management and frequent irritability. The Veteran reported changes in his attention/concentration and memory shortly after his deployments. He has continued to complain of difficulty focusing his attention and forgetfulness. The Veteran also endorses ongoing concentration difficulties. The Veteran feels that his cognitive difficulties cognitive difficulties have become progressively worse over time. The Veteran experiences several symptoms of depression including low energy, loss of interests, feelings of guilt and worthlessness and ongoing agitation. He also has increased difficulties handling stressful situations. The psychologist noted that while the Veteran is motivated for treatment, the degree of severity of his symptoms of PTSD and major depressive disorder have impaired his abilities to function both occupationally and socially. A March 2017 VA examination for PTSD shows that the Veteran’s PTSD symptoms included nightmares, irritability, anger, outbursts, flashbacks, hypervigilance, and avoidance behaviors. His major depressive disorder symptoms included depressed mood, fatigue, irritability, social withdrawal, and diminished feelings of positive self-worth. The examiner noted that there was some co-morbidity/clinical association between his PTSD and MDD. The examiner checked the following symptoms that applied to the Veteran’s diagnoses: depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances in 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 examiner determined that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. An August 2017 VA PTSD examination shows that the examiner checked the symptoms that applied to the Veteran’s diagnoses: depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances in motivation and mood, suicidal ideation, and neglect of personal appearance and hygiene. The examiner noted that the Veteran was oriented in all spheres. He was casually dressed. He wore a soiled shirt, had dirt under his nails, and unkempt hair. He had poor eye contact. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. A March 2018 VA examination for heart conditions revealed that the Veteran was diagnosed with heart disease, enlarged heart, leaky valve, abnormal t wave, mitral valve, problem, and chest pain. The Veteran reported that his symptoms have become worse and he has reduced his activities, but the symptoms have been persistent. His current symptoms include occasionally chest pains, fatigue, shortness of breath, dizziness, pressure-like pain during physical training or when blood pressure elevates. Sharp, sticky needle-like pain would occur regardless of activity and happened even if he was not exhausted. Severe pain would occur one two time per week, but he was in constant discomfort. The examiner noted that continuous medication was required, including aspirin, Losartan, and Hydralazine. Blood pressure was 213/140. An interview-based METS test revealed that a METS level greater than 5 to 7 (consistent with activities such as walking one flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging) reflected the lowest activity level at which the Veteran reported any of the following symptoms: dyspnea, fatigue, angina, dizziness, and syncope. The examiner stated that the Veteran’s heart condition did not impact his ability to work, however, the examiner did not provide any explanation in support of this opinion. A private physician provided the medical opinion in September 2018 that based upon a review the Veteran’s complete VA claims file, Social Security files, and speaking with the Veteran on September 18, 2018, he provided the opinion that the Veteran’s service-connected impairments more likely than not contribute materially and substantially to his inability to maintain gainful work in any employment base The physician noted that the Veteran cannot exert himself in any physically demanding circumstances due to his cardiac complications, as he struggles to walk to the mailbox and back, take out a small load of trash without exacerbation of his heart problems. He must sit and rest for several minutes following walking as little as one city block or climbing a small flight of stairs. Furthermore, he must substantially avoid any and all physically exerting or psychologically stressful circumstances due to a significant risk of exacerbating his heart problems. The physician asserted that eh Veteran’s heart impairment could very likely prove fatal if he were subjected to even mild stressful circumstances such as even the minimal expectations of either light physical or even sedentary employment opportunities. The “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Id. at 1354 (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). In light of the foregoing, the Veteran is found to be unable to maintain employment due his service connected PTSD and hypertension from March 7, 2013 to June 29, 2015, due to his service-connected PTSD, hypertension, and heart disabilities from June 30, 2015 to September 17, 2018, and solely due to his service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain from September 18, 2018. The Veteran’s symptoms of PTSD to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, occasionally homicidal ideation, anger management problems, and occasionally neglect of personal appearance and hygiene would have a significant impact on the Veteran’s ability to maintain most, if not all employment, particularly one that would require interaction with others, including supervisors. The Veteran’s uncontrolled hypertension also impacts the Veteran’s ability to engage in physical or manual labor as strenuous activities result in dizziness and an increase in blood pressure. Furthermore, from June 30, 2015 to September 17, 2018, the medical and lay evidence shows that the Veteran’s service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain had a significant impact on the Veteran’s ability to engage in most forms of manual or physical labor. The Veteran’s hypertension and heart disabilities result in at minimum dyspnea and fatigue with walking up one flight of stairs, golfing without a cart, mowing the lawn, and heavy yard work. See VA examinations dated in December 2015 and March 2018. As of September 18, 2018, the medical evidence reflects that the service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain, alone, would significantly impact the Veteran’s ability to maintain substantially gainful employment in physical or sedentary jobs as his symptoms prevent him from exerting himself in any physically demanding circumstances and his heart condition could prove fatal if he was subjected to even mild stressful circumstances such as the minimal expectations of either light physical or even sedentary employment opportunities. Thus, the Veteran’s PTSD and hypertension from March 7, 2013 to June 29, 2015, PTSD, hypertension, and heart disabilities from June 30, 2015 to September 17, 2018, and solely due to his service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain from September 18, 2018 would allow only marginal employment at best, given the restrictions the disabilities would put on finding adequate employment. See Frisco v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran’s disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Accordingly, the evidence is at least evenly balanced as to whether the Veteran is precluded by his service-connected disabilities from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU due to his service-connected disabilities is warranted from March 7, 2013 to September 17, 2018 and solely due to his service-connected heart disease, enlarged heart, leaky valve, abnormal T wave, valve problem, and chest pain from September 18, 2018 is warranted. 3. Entitlement to SMC. VA has a duty to infer a claim for special monthly compensation when the evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC at the housebound rate is payable by law where the veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). The Board has granted TDIU based solely on service-connected heart disability, effective September 18, 2018. For SMC purposes, a TDIU predicated on one service-connected disability satisfies the requirement of a “single service-connected disability rated as total.” Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In this case, the Veteran also has additional service-connected disabilities independently rated at 60 percent or higher during this time period (his service-connected PTSD is rated as 100 percent disabling since September 18, 2018. (Continued on the next page)   In light of the foregoing, the criteria are met for entitlement to SMC at the housebound rate effective from September 18, 2018, but not earlier. It is not until September 18, 2018, that the Veteran has a TDIU predicated solely on the service-connected heart disability and separate service-connected disabilities, including PTSD independently rated at 60 percent or more. Thus, entitlement to SMC at the statutory housebound rate under 38 U.S.C. § 1114(s) is warranted as of September 18, 2018. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.