Citation Nr: 21023877 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-16 407 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 13, 2018, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for chest pain and heart attacks is remanded. Entitlement to service connection for neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders, is remanded. FINDING OF FACT For the period prior to April 13, 2018, the Veteran’s service-connected disabilities were of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU, for the period prior to June 23, 2016, have been 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 served on active duty in the Army from November 1983 to March 1992, to include service in Southwest Asia from October 1990 to April 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In August 2018, the Board determined that the issue of entitlement to a TDIU was raised during the Veteran’s previously appealed increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issues of entitlement to service connection for chest pain and heart attacks (listed as chest pain and heart attacks as due to an undiagnosed illness, and/or medically unexplained multi-symptom illness, incurred during military service in Southwest Asia during the Gulf War) and entitlement to service connection for neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders (listed as neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders, as due to an undiagnosed illness, and/or medically unexplained chronic multi-symptom illness, incurred during military service in Southwest Asia during the Gulf War). A February 2021 RO decision granted a TDIU, effective April 13, 2018. In accordance with Rice, 22 Vet. App. at 447, the Board has jurisdiction over the issue of entitlement to a TDIU for the period prior to April 13, 2018. The Board observes that the Veteran has appealed an issue of entitlement to an increase in a 10 percent rating for gastroesophageal reflux disease (GERD). In a February 2020 VA Form 9, the Veteran requested that he be scheduled for a Board videoconference hearing, as to the issue of entitlement to an increase in a 10 percent rating for GERD. The Board notes that the Veteran has not been afforded a Board videoconference regarding the issue of entitlement to an increase in a 10 percent rating for GERD. Thus, this issue is not currently before the Board. TDIU prior to April 13, 2018 The provisions of 38 C.F.R. § 4.16(a) provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The Veteran essentially contends that his service-connected disabilities prevented gainful employment, warranting a TDIU, for the period prior to April 13, 2018. He reports that all his service-connected disabilities, prevented gainful employment, warranting a TDIU. The Veteran’s service-connected disabilities are fibromyalgia (rated 40 percent); a depressive disorder, claimed as an acquired psychiatric disorder, including sleep disturbance, memory loss, and depression (rated 30 percent); GERD (rated 10 percent); left knee joint pain (rated 10 percent); left knee instability (rated 10 percent); headaches (rated 0 percent); and tinnitus (rated 10 percent). The Board notes that the effective date for service connection for the Veteran’s respective disabilities occurred at different times during the pendency of this appeal. The Board observes, however, that as of June 14, 2010, the Veteran had a combined disability rating of 70 percent, and clearly met the schedular requirements to be considered for a TDIU, at that time. See 38 C.F.R. § 4.16. Therefore, the Veteran clearly meets the minimum schedular criteria requirements to be considered for a TDIU for the period prior to April 13, 2018. The remaining question is whether the Veteran was unemployable due to his service-connected disabilities alone, taking into consideration his educational and occupational background, for the period prior to April 13, 2018. The record reveals that the Veteran completed four years of high school. The Veteran reports that he last worked full time in November 2005 as a body welder for Toyota. He has also maintained that he became too disabled to work in November 2005. The Board observes that there are multiple VA examination reports of record that include statements addressing the Veteran’s employability. Based upon the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board concludes that the Veteran’s service-connected disabilities, in combination with each other, rendered him unable to secure or follow a substantially gainful occupation for the period prior to April 13, 2018. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). As the Board has granted the Veteran’s claim, the assignment of the effective date for the TDIU, for the period prior to April 13, 2018, will be determined by the RO in this matter. REASONS FOR REMAND The remaining issues on appeal are service connection for chest pain and heart attacks, and for neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders. This case was remanded in August 2018, partly to schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed chest pain and heart attacks, and neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders. Then, based on the results of the examination, the examiner was to address a number of questions. Pursuant to the August 2018 Board remand, the Veteran was afforded a VA heart conditions examination in August 2019. There is a notation that the Veteran’s claims file was reviewed. The diagnoses were stable angina and cardiomyopathy. The examiner reported that the etiology of the Veteran’s diagnosed stable angina was tobacco addiction, and that the etiology of his cardiomyopathy was probably viral. The examiner stated that there was no documentation that the Veteran had any heart disease based on his previous cardiac studies. The examiner maintained that the Veteran’s history was not consistent with his medical records. It was noted that the Veteran had low METs due to chronic obstructive pulmonary disease (COPD) and a possibly remote viral cardiomyopathy. The examiner stated that the Veteran had a history of depression, with psychotic features. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that the Veteran was being treated for angina by his personal physician. The examiner stated that the Veteran left the service in 1992, and that he had a normal heart catheterization in January 2000, which was eight years after he left the service. It was noted that the Veteran had a normal echocardiogram in 2012. The examiner related that the Veteran had an abnormal echocardiogram in August 2019, which indicated that he had a probably remote cardiomyopathy. The examiner reported that there was no documentation in the medical records of a myocardial infarction. The examiner maintained that the Veteran probably developed angina due to heavy smoking. The examiner indicated that there was no known hazardous exposure from Southwest Asia that would have caused the Veteran’ s cardiac issues. The examiner reported that the Veteran did not have an undiagnosed illness, or a diagnosable, but medically unexplained, chronic multi-symptom illness of unknown etiology. The examiner stated that the Veteran also did not have a diagnosable chronic multi-symptom illness with a partially explained etiology. The examiner maintained that the Veteran did have some conditions with a clear and specific etiology and diagnosis. The examiner indicated that the Veteran did not have a Southwest Asia chronic disability pattern. The Board observes that the examiner diagnosed the Veteran with were stable angina and cardiomyopathy. The Board observes that the examiner did not address other heart diagnoses of record, including coronary artery disease; a myocardial infarction; arteriosclerotic heart disease; coronary arteriosclerosis; arrythmia, etc. Additionally, the Board notes that the examiner did not address whether the Veteran’s claimed chest pain and heart attacks were caused or aggravated by his service-connected disabilities, as requested in the August 2018 Board remand. In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), a decision issued by the United States Court of Appeals for Veterans Claims (Court), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. Pursuant to the August 2018 Board remand, the Veteran was also afforded a VA peripheral nerves conditions examination in August 2019, by the same examiner who performed the August 2019 VA heart conditions examination report. There is a notation that the Veteran’s claims file was reviewed. The diagnosis was radiculopathy of both upper extremities. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that the Veteran probably had extremely mild radiculopathy in his upper extremities, which were symptoms due to his cervical spine pathology. The examiner maintained that the Veteran’s symptoms in his feet were probably due to swelling from venous insufficiency and possibly hyperventilating. The examiner stated that none of the issues were related to the Veteran’s military service or to hazardous exposures in Southwest Asia. The examiner reported that the Veteran did not have an undiagnosed illness, or a diagnosable, but medically unexplained, chronic multi-symptom illness of unknown etiology. The examiner stated that the Veteran also did not have a diagnosable chronic multi-symptom illness with a partially explained etiology. The examiner maintained that the Veteran did have some conditions with a clear and specific etiology and diagnosis. The examiner indicated that the Veteran did not have a Southwest Asia chronic disability pattern. The Board observes that the examiner diagnosed the Veteran with radiculopathy of both upper extremities. The Board observes that the examiner did not address other neurological diagnoses of record, including bilateral carpal tunnel syndrome. Additionally, the examiner did not address whether the Veteran’s claimed neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders, were caused or aggravated by his service-connected disabilities, as requested in the August 2018 Board remand. See El-Amin, 26 Vet. App. at 136. In light of the above, the Board finds that the Veteran should be afforded a VA examination with the opportunity to obtain responsive etiological opinions, following a thorough review of the record, as to his claims for service connection for chest pain and heart attacks, and for neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders. Such an examination must be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for chest pain and heart attacks, and for neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders, since January 2021. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms of his claimed chest pain and heart attacks, and neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders. He should be afforded an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature, onset and etiology of his claimed chest pain and heart attacks, and neurological conditions, including numb and cold hands and feet, and neurological problems of the arms and shoulders The claims file must be reviewed by the examiner. Based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? (c) If, after examining the Veteran and reviewing the claims file, it is determined that the Veteran’s disability pattern is either (1) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (2) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (f) If not caused by another medical condition, has any disorder been aggravated by any service-connected disability(ies)? If yes, was that increase in severity due to the natural progress of the disease. In responding to the above inquiries, please acknowledge and discuss the Veteran’s treatment for chest pain during service, in 1984, and any reports of the Veteran of symptoms he thought were due to his claimed disabilities during and since service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. D. Regan, 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.