Citation Nr: 21022729 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-12 026 DATE: April 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from January 1, 2010 (but no earlier) through June 18, 2010, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an effective date earlier than June 19, 2010 for the award of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) is denied. REMANDED Entitlement to SMC at the rates under 38 U.S.C. § 1114 (l), (m), (n), and/or (o) is remanded. FINDINGS OF FACT 1. During the period from December 5, 2008 through June 18, 2010, the Veteran was service-connected for the following disabilities: gastroesophageal reflux disease (GERD), rated 60 percent disabling; left hand disability, rated 40 percent disabling; right hand psoriatic arthritis with synovitis, rated 40 percent disabling; nephrolithiasis, rated 30 percent disabling; painful scars of the bilateral hands and right wrist, to include warts of the right hand, rated 10 percent disabling prior to December 22, 2008 and 20 percent disabling from December 22, 2008 through June 18, 2010; right knee disability, to include cyst as residual of injury and inflammatory arthritis, rated 10 percent disabling, from January 29, 2010 through June 18, 2010; right wrist disability, rated 10 percent disabling, from February 8, 2010 through June 18, 2010; and left wrist disability, rated 10 percent disabling, from February 8, 2010 through June 18, 2010; the Veteran’s combined disability rating was 90 percent. 2. The evidence is at least evenly balanced as to whether, during the period from January 1, 2010 (but no earlier) through June 18, 2010, the Veteran’s service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him. 3. Prior to June 19, 2010, the Veteran did not have additional service-connected disability(ies) independently ratable at 60 percent, separate and distinct from a single 100 percent service-connected disability; nor was he permanently housebound by reason of service-connected disability(ies). CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU due to service-connected disabilities, from January 1, 2010 (but no earlier) through June 18, 2010, are met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for an effective date earlier than June 19, 2010 for the award of SMC pursuant to 38 U.S.C. § 1114 (s) are not met. 38 U.S.C. §§ 1114 (s), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.350, 3.400, 3.401(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2003 to July 2003, December 2003 to April 2004, May 2007 to June 2007, July 2007 to August 2007, and September 2007 to December 2008. These matters initially came before the Board of Veterans’ Appeals (Board) from May 2013, March 2014, May 2014, and June 2015 rating decisions. In March 2014, the Board remanded the issue of entitlement to an effective date earlier than June 19, 2010 for the award of SMC pursuant to 38 U.S.C. § 1114 (s) for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). In December 2015 and December 2016, the Board remanded these matters for further development. In January 2018, the Board denied entitlement to an effective date earlier than June 19, 2010 for the award of SMC pursuant to 38 U.S.C. § 1114 (s), entitlement to a TDIU during the period from December 5, 2008 to June 19, 2010, and entitlement to SMC at the rates under 38 U.S.C. § 1114 (l), (m), (n), and/or (o). The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court set aside the Board’s January 2018 decision, in part, and remanded to the Board the issues of entitlement to an effective date earlier than June 19, 2010 for the award of SMC pursuant to 38 U.S.C. § 1114 (s), entitlement to a TDIU during the period from December 5, 2008 to June 19, 2010, and entitlement to SMC at the rates under 38 U.S.C. § 1114 (l), (m), (n), and/or (o) for readjudication in compliance with directives specified in a December 2020 Joint Motion filed by counsel for the Veteran and VA. As a final preliminary matter, in the December 2015 and December 2016 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (to include records from Dr. Taliercio, Dr. Wilson, Dr. Andrews, Dr. Milgrom, Dr. Boxer, Dr. Liu, and Dr. Goldberg), obtain all outstanding VA treatment records, provide the Veteran with notice as to the evidence needed to substantiate his claim for a TDIU, and ask the Veteran to complete a Veterans Application for Increased Compensation Based on Unemployability form (VA Form 21-8940). Pursuant to the Board’s remand, the Veteran was notified of the evidence needed to substantiate his claim for a TDIU and was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (to include records from Dr. Taliercio, Dr. Wilson, Dr. Andrews, Dr. Milgrom, Dr. Boxer, Dr. Liu, and Dr. Goldberg) by way of letters dated in March 2016, April 2016, and December 2016. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letters. Moreover, all identified outstanding VA treatment records and private medical records were obtained and associated with the claims file and the Veteran submitted completed VA Forms 21-8940 in August 2016 and December 2016. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). I. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Among other things, disabilities of one or both lower extremities, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system (e.g., orthopedic) will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU due to service-connected disabilities, during the period from December 5, 2008 through June 18, 2010. Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him during the period from January 1, 2010 through June 18, 2010. During the period from December 5, 2008 through June 18, 2010, the Veteran was service-connected for the following disabilities: GERD, rated 60 percent disabling; left hand disability, rated 40 percent disabling; right hand psoriatic arthritis with synovitis, rated 40 percent disabling; nephrolithiasis, rated 30 percent disabling; painful scars of the bilateral hands and right wrist, to include warts of the right hand, rated 10 percent disabling prior to December 22, 2008 and 20 percent disabling from December 22, 2008 through June 18, 2010; right knee disability, to include cyst as residual of injury and inflammatory arthritis, rated 10 percent disabling, from January 29, 2010 through June 18, 2010; right wrist disability, rated 10 percent disabling, from February 8, 2010 through June 18, 2010; and left wrist disability, rated 10 percent disabling, from February 8, 2010 through June 18, 2010. The Veteran’s combined disability rating was 90 percent. The remaining question is whether his service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him. An undated counseling record in the Veteran’s VA vocational rehabilitation file, “Request for Leave or Approved Absence” forms from the Veteran’s employer dated in 2009, a copy of his resume, a September 2009 letter from the Department of the Army, the reports of VA examinations dated in October 2009, a December 2009 letter from E. Milgrom, M.D., a February 2010 statement from the Veteran (VA Form 21-4138), an April 2010 VA knee examination report, statements from the Veteran’s former representative dated in May 2010 and June 2010, the report of a June 2010 VA hand examination, letters from J. Wilson, M.D. dated in June 2010, a September 2010 letter from H.E.R., an April 2011 VA psychiatric examination report, an April 2011 statement from the Veteran, an August 2016 “Request for Employment Information in Connection with Claim for Disability Benefits” form (VA Form 21-4192), VA Forms 21-8940 dated in August 2016 and December 2016, a December 2016 statement from the Veteran, and a February 2017 VA Form 21-4192 indicate that prior to the period on appeal (i.e., December 5, 2008 through June 18, 2010) the Veteran earned a Bachelor of Arts degree in sociology with a concentration in public health and medical sociology, and a Master of Health Administration degree. He subsequently pursued a doctorate degree in public health following the period on appeal. After his separation from service, the Veteran was employed as a clinical risk manager, a clinical systems informatics training instructor, a graduate assistant at a university, and a lecturing teaching assistant at another university. He stopped working as a lecturing teaching assistant on December 31, 2009. He subsequently spent time as a disaster relief volunteer in Haiti following a January 2010 earthquake, but he did not have any paid employment during the period from January 1, 2010 through June 18, 2010. As for symptoms of his service-connected disabilities, the Veteran experienced bilateral hand pain, swelling, weakness, numbness, and tingling, decreased hand grip strength, right knee pain, giving way, stiffness, weakness, and effusions, painful and limited motion of his fingers, wrists, and right knee, an antalgic gait, chronic bilateral flank pain, dysphagia to solids several times per week, and frequent burning chest pain associated with substernal chest pain several times per week. Severe flare ups of right knee symptoms occurred on a daily basis, lasted for hours at a time, were caused by physical activities (prolonged walking and standing, squats, stair use, jogging, jumping, and lifting/carrying) and cold weather, and were partially relieved with rest and activity modifications. The Veteran also experienced daily severe flare ups of bilateral hand symptoms which lasted for hours at a time and were caused by prolonged use of his hands, lifting/carrying, and typing/writing. He was unable to carry items for prolonged distances, stand for more than 30 minutes, and walk for more than 2 blocks. The examiner who conducted the October 2009 examinations noted that the Veteran’s hand symptoms had mild to moderate occupational effects in that he had to leave class and was unable to carry objects due to his symptoms. Dr. Milgrom explained that the Veteran’s bilateral hand disabilities “caused significant disruption in his occupation” in that he was frequently unable to lift boxes or type for long periods of time without experiencing tremendous pain. Also, his daily bilateral flank pain affected his occupation and daily activities of living in that his ability to teach was “significantly impacted” because he often had to stop in the middle of conducting his lectures in order to “collect himself through the pain.” The examiners who conducted the April and June 2010 VA examinations noted that the Veteran’s right knee and bilateral hand disabilities had significant occupational effects in that they caused pain, decreased mobility, problems with lifting and carrying, and decreased strength. Also, Dr. Wilson explained in his June 2010 letters that the Veteran was unable to stand for long periods while lecturing to students without having to remain inactive due to his right knee disability, and that his bilateral hand disability caused “significant disruption” in his occupation because he was frequently unable to lift boxes or type for prolonged periods without experiencing tremendous pain. There were “significant limitations” in the ranges of motion of his fingers and wrists and he had a “significantly reduced” capacity for holding moderately weighted objects in either hand for extended period of time without experiencing pain and subsequent loss of grasp and grip. The above evidence reflects that during the period from December 5, 2008 through June 18, 2010, the Veteran had undergraduate and graduate degrees in sociology, public health, and health administration. After his separation from active service, he worked as a clinical risk manager, a clinical systems informatics training instructor, a graduate assistant at a university, and a lecturing teaching assistant at another university. Although he missed time from work in 2009, he remained employed during this time and used accrued sick leave. He stopped working on December 31, 2009 due to his service-connected disabilities and was not gainfully employed from that time through June 18, 2010. During that period, he experienced symptoms associated with his service-connected disabilities that resulted in functional impairments that significantly interfered with his ability to secure and follow any substantially gainful employment consistent with his education and occupational experience. For instance, his medical records and lay statements reflect symptoms and impairments associated with his service-connected bilateral hand disability, bilateral wrist disability, right knee disability, and kidney disability (including, but not limited to, bilateral hand pain, swelling, and weakness, painful and limitation motion of the fingers, wrists, and right knee, flank pain, an inability to stand or walk for prolonged periods, an inability to carry even moderately heavy objects, and significant difficulty with writing and typing) that would have prevented him from performing any type of substantially gainful employment consistent with his education and occupational experience. Overall, the above discussion of the severity of the symptoms of the Veteran’s service-connected disabilities and his educational and occupational experience, to include the medical opinions of record, reflect that the evidence is at least evenly balanced as to whether he was unable to secure and follow substantially gainful employment due solely to his service-connected disabilities during the period from January 1, 2010 through June 18, 2010. The earliest that it is factually ascertainable that the Veteran was not gainfully employed during the period on appeal is January 1, 2010, the day after he stopped working as a lecturing teaching assistant. As noted above, although he experienced some work limitations prior to this date, he remained employed on at least a part time basis and used accrued sick leave to take time off from work. Therefore, as the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU, from January 1, 2010 (but no earlier) through June 18, 2010, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. II. Earlier Effective Date Entitlement to an effective date earlier than June 19, 2010 for the award of SMC pursuant to 38 U.S.C. § 1114 (s) Pursuant to 38 U.S.C. § 1114 (s), when a veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). SMC pursuant to 38 U.S.C. § 1114 (s) is also warranted when a veteran is permanently housebound by reason of service-connected disability. In this case, the Veteran has not reported, and the evidence does not otherwise reflect, that he has been housebound at any time during the claim period. The evidence reflects that between his separation from service and June 19, 2010, the Veteran worked as a university instructor, completed a fellowship, worked on two master’s degrees, worked as a clinical risk manager, and performed volunteer work in Haiti. Additionally, his treatment records show that he was able to perform all activities of daily living. While the Board acknowledges the serious nature of the Veteran’s service-connected disabilities, the activities that he performed prior to June 19, 2010 show that he was not permanently housebound by reason of service-connected disability(ies) at any time prior to June 19, 2010. Moreover, he did not have any service-connected disability rated as total, with additional service-connected disability independently ratable at 60 percent or more, prior to June 19, 2010. In this regard, the Board has awarded a TDIU during the period from January 1, 2010 through June 18, 2010 on the basis of the limitations caused by the Veteran’s service-connected disabilities, collectively, and not due to any single service-connected disability. Accordingly, the Board finds that SMC pursuant to 38 U.S.C. § 1114 (s) is not warranted at any point prior to June 19, 2010. REASONS FOR REMAND Entitlement to SMC at the rates under 38 U.S.C. § 1114 (l), (m), (n), and/or (o). is remanded. The SMC rate payable under 38 U.S.C. § 1114 (l) is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. The SMC rate payable under 38 U.S.C.1114 (m) is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance. Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran to dress or undress himself, or to keep clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers of the daily environment. See Turco v. Brown, 9 Vet. App. 222 (1996). The SMC rate payable under 38 U.S.C. § 1114 (n) is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. The SMC rate payable under 38U.S.C. 1114 (o) is warranted if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n) of this section, no condition being considered twice in the determination, or if the veteran has suffered bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 60 percent or more disabling and the veteran has also suffered service-connected total blindness with 20/200 visual acuity or less, or if the veteran has suffered service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less, or if the veteran has suffered the anatomical loss of both arms with factors that prevent the use of prosthetic appliances. In this case, the Veteran was most recently afforded VA hand and aid and attendance examinations in September 2011 and June 2013, respectively. However, his treatment records and lay statements suggest that he has experienced worsening upper extremity symptoms associated with his service-connected psoriatic arthritis in the years since these examinations. In light of the evidence of potential worsening of the Veteran’s service-connected arthritis, and as the issue of entitlement to SMC must otherwise be remanded for issuance of a supplemental statement of the case (SSOC), the Veteran should be afforded appropriate examinations upon remand to assess the functional impairments caused by his service-connected psoriatic arthritis and his ability to perform activities of daily living. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA New York Harbor Healthcare System (dated to August 2020), the Bronx Vista electronic records system (dated to April 2014), and the VA San Diego Healthcare System (dated to September 2020). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, following a May 2017 SSOC, additional evidence has been associated with the Veteran’s claims file by the AOJ that is relevant to the issue of entitlement to SMC. This evidence includes VA treatment records from the VA New York Harbor Healthcare System dated from October 2014 through August 2020. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1305 (c). Hence, the Board is required to remand the SMC issue for issuance of the necessary SSOC. The matter is REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the VA New York Harbor Healthcare System for the period since August 2020; the Bronx Vista electronic records system for the period since April 2014; the VA San Diego Healthcare System for the period since September 2020; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his service-connected psoriatic arthritis. The clinician should provide a full description of the disability and report all signs and symptoms of the disability. The clinician should specifically describe any functional impairment of the hands caused by the Veteran’s service-connected psoriatic arthritis and the extent to which the disability impacts his ability to grasp, manipulate, and otherwise perform daily functions with his hands. The clinician must provide reasons for any opinion. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an aid and attendance examination by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the impact of his disabilities upon his activities of daily living. Based on any examination findings and the Veteran’s documented medical history and lay assertions, the clinician should identify any functional impairments due to his disabilities and discuss the effect of these disabilities on his activities of daily living, consistent with the current disability benefit questionnaire. The clinician must provide reasons for any opinion given. (CONTINUED ON NEXT PAGE) 4. After the above development, and any additionally indicated development, has been completed, readjudicate the remaining issue on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran an SSOC that considers all additional relevant evidence received since the May 2017 SSOC, and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.