Citation Nr: 21024514 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-28 120 DATE: April 23, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Entitlement to service connection for erectile dysfunction (ED) is remanded. FINDING OF FACT The evidence of record fails to demonstrate that the Veteran was precluded from all substantially gainful employment due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU were not met on a schedular basis and referral for extra-schedular consideration is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. The Board remanded the claim for service connection for ED and increased rating for posttraumatic stress disorder (PTSD) in November 2018 for additional development. In November 2020, the Board adjudicated the increased rating claim for PTSD, and remanded the service connection claim for ED for an addendum medical opinion. The Board also found that the issue of TDIU had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU is part and parcel of a claim for increased compensation when evidence of unemployability is submitted). The claim for TDIU was also remanded for additional development in November 2020. The claims are now before the Board for further appellate consideration. 1. Entitlement to a TDIU The Veteran contends that he is entitled to a grant of TDIU. See March 2021 Appellate Brief. Where the schedular rating is less than total, a TDIU may be assigned when it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 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 condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment is not considered substantially gainful employment. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) 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 following: 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. During the period on appeal, the Veteran was service connected for the following disabilities: PTSD rated as 50 percent disabling, Diabetes Mellitus type two (DMII) rated as 20 percent disabling, and tinnitus rated 10 percent disabling. See December 2020 Rating Decision -Codesheet. His combined disability rating is 60 percent and none of the exceptions in 38 C.F.R. § 4.16 (a)(1)-(5) (disabilities of extremities, common etiology, single body system, incurred in action, or prisoner of war) are for application. Thus, the Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), and his claim is denied based on 4.16(a). However, that is not the end of the inquiry. TDIU can still be established whenever service-connected disabilities cause unemployability pursuant to 38 C.F.R. § 4.16(b), but the Board is precluded from awarding a TDIU under 38 C.F.R. § 4.16(b) without first referring the matter to the Director, Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the issue before the Board is whether a remand for referral for extra-schedular consideration for TDIU is warranted. The initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The Board notes that the TDIU claim was remanded in November 2020 for development to include providing the Veteran with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not respond to the request from the Regional Office (RO) to solicit information which could substantiate the claim for a TDIU. A substantially complete VA Form 21-8940 is required to establish entitlement to individual unemployability (IU) because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. It concludes with a series of sworn certification statements, and in endorsing it, the veteran attests to his employment status and signals understanding of the IU benefit’s incompatibility with substantially gainful work. If IU is raised and the Veteran fails to complete and return VA Form 21-8940, VA must decide the issue of IU based on the available evidence of record. The VA attempted to obtain Social Security Administration records but was informed no medical records existed for the Veteran. Turning to the evidence of record, the September 2019 VA examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. See September 2019 Review PTSD Disability Benefits Questionnaire (DBQ). During the examination, the Veteran reported that he has been retired since age 62 and that he last worked as at a nursing home about 15 years earlier. Id. He did not miss any time from work or have any problems due to his psychiatric disability. He also stated that he worked as a corrections officer for 13 years but resigned due to increased nightmares of Vietnam in his position at the correctional facility. Id. However, no additional functional limitations were noted. An April 2011 VA examiner also opined that the Veteran’s PTSD resulted in very mild occupational impact. See April 2011 VA Initial Evaluation for PTSD Examination. The April 2011 VA examiner concluded that the Veteran’s did not experience any occupational impairment due to his service-connected DMII. See April 2011 Diabetes Mellitus Compensation and Pension Examination Report. The Veteran reported that he retired at age 62 due to back pain. Id. Regarding the occupational impact of his service-connected tinnitus, the April 2011 VA examiner opined that his tinnitus resulted in significant impairment which consisted of difficulty hearing. See April 2011 VA Audiology Compensation and Pension Examination Report. Based on the above-cited evidence, the Board finds that the weight of the evidence fails to establish that the Veteran’s service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. While the Veteran’s service-connected PTSD, DMII, and tinnitus disabilities cause some functional impairment, the evidence of record does not demonstrate they have risen to the level that he is unable to secure or follow any substantially gainful employment in light of his education and occupational experience. In fact, no medical professional has opined that the Veteran’s service-connected disabilities resulted in significant impairment which precluded gainful employment. Instead, the evidence demonstrates that the Veteran retired at age 62 due to a non-service-connected disability. However, non-service-connected disabilities nor advancing age may be considered for a TDIU. 38 C.F.R. § 4.19. As such, the Board finds that the evidence of record fails to demonstrate that he is precluded from in engaging in substantially gainful employment solely due to his service-connected disabilities. Additionally, because he did not submit a VA Form 21-8940, the record contains limited information regarding the Veteran’s actual employment and educational history, making it difficult to determine whether any functional impairment would preclude him from gainful employment. Therefore, the preponderance of the evidence reflects that the functional impairment from the Veteran’s service-connected disabilities has not been shown to be so severe as to preclude substantially gainful employment. Thus, the record does not contain sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. Accordingly, the procedures for referring this matter for extraschedular consideration are not met, and referral for extraschedular TDIU consideration is not warranted at this time, and the claim for TDIU is denied. REASONS FOR REMAND 1. Entitlement to service connection for ED Upon review, the Board finds a remand is necessary to obtain an addendum medical opinion because the Board is unable to make a fully informed decision on the Veteran’s claim for service connection for ED. Specifically, the record does not contain an adequate medical opinion which addresses whether the Veteran’s ED was incurred or caused by active service. Notably, in the October 2018 Appellate Brief, the Veteran contended that his ED was incurred in service or caused by his active service. See October 2018 Appellate Brief. The September 2019 VA examiner stated that he was unable to provide an opinion whether the Veteran’s ED was incurred in or caused by service. See September 2019 Male Reproductive System Conditions DBQ. Specifically, he stated “[t]he meaning of ‘incurred in or caused by (the) unknown during service’ is unknown.” Id. The Board finds that this opinion is inadequate because the examiner did not address whether the Veteran’s ED was related to or caused by his presumed exposure to herbicide agents. See May 2011 Rating Decision (conceding the Veteran’s exposure to herbicide agents). Additionally, the Veteran’s service treatment records (STRs) confirm he was treated for acute urethritis in February 1967 and ureteral discharge in June 1967. See STR-Medical. While the September 2019 VA examiner noted the Veteran’s February 1967, April 1967, and May 1967 treatment for urethritis, as evidence that the Veteran did not have ED during service, he did not provide an opinion on whether his ED was related to or caused by his active service to include the in service treatment for urethritis. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (stating that a VA medical opinion lacks probative value when the examiner fails to address a veteran’s lay reports of his medical history and symptoms).   As such, a remand is warranted to obtain an addendum medical opinion which addresses whether the Veteran’s ED is directly related to service. The Board also finds additional clarification is necessary regarding the onset of ED because there is conflicting evidence on the onset of ED. During the April 2011 VA examination, the Veteran reported that he had problems with ED for the past four (4) years including an inability to maintain an erection, ejaculate, or penetrate. See April 2011 Diabetes Mellitus Compensation and Pension Examination Report. The Veteran’s wife also asserted that the Veteran was unable to have an erection since 2006 to 2007. See February 2011 Buddy/ Lay Statement. However, the September 2019 VA examiner stated that the Veteran reported onset of ED 25-30 years ago. See September 2019 Male Reproductive System Conditions DBQ. The December 2020 VA examiner also noted that the Veteran had complete ED with lack of erection and ejaculation for 25 to 30 years. In light of the conflicting evidence, the Board finds an addendum opinion to clarify the onset and extent of the Veteran’s ED is necessary. Finally, the Board needs further clarification regarding whether the Veteran’s psychiatric symptoms caused or aggravated his ED. Notably, the April 2011 VA examiner stated that his psychiatric disability was a contributing factor in ED. See April 2011 Diabetes Mellitus Compensation and Pension Examination Report. The Board notes that the September 2019 and December 2020 VA examiners found that the Veteran’s ED preceded the Veteran’s psychiatric disability. Particularly, the September 2019 VA examiner noted that the Veteran had a history of depression which dated to 1993 and stated that “history of depression appears most closely related to the time course of onset of erectile dysfunction.” See September 2019 Male Reproductive System Conditions DBQ. The Board notes that the Veteran endorsed symptoms of depression or excessive worry, nervous trouble, and suicide ideation, during active service at the October 1969 separation examination. See October 1969 Report of Medical History in STR-Medical. Although, the September 2019 VA examiner attributed the Veteran’s depression to another cause in 1993, it is unclear whether the examiner considered the Veteran’s reported in-service psychiatric symptoms and whether depression did in fact precede the Veteran’s ED. Thus, based on the foregoing, the Board finds that a remand is necessary for an addendum medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a medical professional with appropriate experience to render an etiology opinion for the ED disability.  If the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination(s).  Any clinically indicated testing and/or consultations should be performed.    2. The examiner must review the claims folder including this remand and acknowledge such review in the report.   Based on review of the April 2011, September 2019, December 2020 VA examination reports and medical opinions, the examiner is requested to address the following:    (a) Identify the onset and extent of the Veteran’s ED. (b) In so doing, please address the conflicting evidence regarding the onset of the Veteran’s ED and discuss whether the Veteran had complete ED in 2006 or 25-30 years ago (between 1989-1994). (c) As the standard is at least as likely as not, is it possible that the Veteran’s current ED disability could be related to or caused by any in-service event, injury, or disease including the February 1967, April 1967, and May 1967 treatment for urethritis? (d) As the standard is at least as likely as not, is it possible that the Veteran’s current ED disability could be related to or caused by any in-service event, injury, or disease including the October 1969 reports of psychiatric symptoms including depression or excessive worry, nervous trouble, and suicide ideation? (e) Whether it is at least as likely as not that the Veteran’s ED was related to or caused by his conceded exposure to herbicide agents? (i) The examiner must discuss the veteran’s lay statements regarding the history, chronicity, and continuity of symptomatology, to include the veteran’s report of his in-service injury.  S/he should outline that history in the report.    (f) Does the Veteran’s in-service treatment for urethritis align with how the Veteran’s ED disability is known to develop? (g) Whether it is medically feasible that his current ED disability was caused by his in-service treatment for urethritis? 1. IF THE ANSWER TO ANY OF THE ABOVE QUESTIONS IS NEGATIVE, STATE WHY NOT AND ON WHAT BASIS THIS CONCLUSION WAS MADE.    (h) Whether it is at least as likely as not (i.e.,50 percent probability or greater) that the Veteran’s ED disability was caused by any of his service-connected disabilities including his DMII and PTSD disabilities and the medications used to treat those disabilities. (i) Whether it is at least as likely as not (i.e.,50 percent probability or greater) that the Veteran’s ED disability underwent an incremental increase (aggravated), regardless of permanence, by any of his service-connected disabilities including his DMII and PTSD including the medications used for those disabilities. i. In providing a secondary nexus opinion, the examiner is asked to address the onset of depression and whether the Veteran’s ED was caused by the in-service complaint of depression. • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. • Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized.     • If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.     3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.