Citation Nr: 21025048 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-27 973 DATE: April 27, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. The appeal of the issue of entitlement to service connection for an acquired psychiatric disability is dismissed. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a groin disability is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities have not prevented him from securing or maintaining a substantially gainful occupation throughout the claim period. See, e.g., July 2020 VA Psychiatric Examination (noting work history, including current full-time employment). 2. A December 2020 rating decision granted service connection for major depressive disorder with anxious distress and unspecified somatic symptom and related disorder (claimed as depression). CONCLUSION OF LAW 1. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 2. The criteria for dismissal of appeal of the issue of entitlement to service connection for an acquired psychiatric disability are met. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.22. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1978 to August 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356. Here, the Veteran has a combined rating of over 80 percent from January 2012, with one disability (migraine headaches) rated as 50 percent disabling from the same date. Therefore, the schedular threshold is met in this case. The remaining issue is whether the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As noted in the above finding of fact, the Board finds that the Veteran’s disabilities do not prevent him from securing or maintaining a substantially gainful occupation. In particular, the evidence reflects that the Veteran has a long history of employment post service, including most recently work in housekeeping and security for the Federal Government for at least the past two years and eight months. See July 2020 VA Psychiatric Examination; see also December 2018 Board Hearing. It is true that the record shows that some of the Veteran’s service-connected disabilities cause him difficulty working. For example, a February 2016 private medical opinion states that the Veteran’s headache pain and attendant depression make it “even more difficult to work,” and the Veteran testified at his December 2018 Board hearing that he was forced to leave work whenever he experienced a migraine headache. Nevertheless, at a July 2020 VA psychiatric examination, the Veteran reported a long post-service work history, stretching back to 1988. In the years just before his work in the Federal Government, for instance, the Veteran reported he had worked for FedEx, for three years in accounts payable for a nonprofit, and for several years as a teller. The Veteran reported that life stressors caused him to make errors as a teller forcing him to resign from that position. Nevertheless, this episode did not prevent him from securing his position with a nonprofit, which he held for three years. Altogether, the Veteran’s report reveals that he has consistently been able to secure and maintain employment despite the difficulties caused by his disabilities. Moreover, there is no evidence that the Veteran’s employment has been marginal or that it has not permitted him to earn a living wage. Nor has the Veteran reported as much. Therefore, because the record reflects that the Veteran has in fact been able to secure and maintain a substantially gainful occupation, the Board finds that his service-connected disabilities do not prevent him from securing or maintaining a substantially gainful occupation. Accordingly, a TDIU is not warranted. 2. Dismissal Under the Legacy Appeal System, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.22. Here, the Veteran is seeking service connection for an acquired psychiatric disability. However, this benefit has been granted by the RO in a December 2020 rating decision. Therefore, because the benefit sought has been granted, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board finds that the appeal is moot, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection GERD and a Groin Disability When VA undertakes to provide an examination for a claim for service connection, even if not statutorily obliged to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). In order to be adequate, medical opinions must support their conclusions with an analysis or rationale the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was afforded VA examinations and nexus opinions on his claims for service connection for GERD and a groin disability in July 2020. Unfortunately, the Board finds that the opinions of both examinations are inadequate. The July 2020 GERD examination concluded that the Veteran’s GERD was not related to his active duty service, because there was no continuity of care between the Veteran’s 1984 complaint of chest pain and the diagnosis of GERD post service. However, the examiner discounted the Veteran’s report of continuous GERD symptoms from 1992 to the present. It is the role of the Board, not medical examiners, “to make the findings of fact and law necessary to decide a claimant’s entitlement to disability benefits.” Delrio v. Wilkie, 32 Vet. App. 232, 242 (2019). The role and competence of medical examiners is limited to providing VA adjudicators, including the Board, with “the medical information and analysis necessary to decide a claim.” Id. Because the conclusion of the July 2020 GERD opinion rested in part on an inappropriate finding of fact that the Veteran’s report of symptomology was not credible, the Board finds that the opinion is inadequate. (In remanding this issue, the Board does not make a preliminary formal finding as to the credibility of the Veteran’s testimony that his GERD had its onset in service. Rather, the Board merely requests that on remand the examiner accept the Veteran’s testimony for purposes of the medical nexus opinion. See Smith v. Wilkie, 32 Vet. App. 332, 337 (2020).) A July 2020 VA male reproductive system examination, on the other hand, concluded that the Veteran’s symptoms of groin pain were attributable to his already service-connected prostate cancer. However, the examiner provided no supporting rationale for this opinion, merely stating: “On [active duty], groin pain was clearly a symptom of prostatitis.” This falls far short of an analysis or rationale the Board can consider and weigh against contrary opinions. Therefore, the Board finds that the July 2020 VA male reproductive system examination is inadequate as well. Accordingly, remand is warranted to provide the Veteran new examinations and medical nexus opinions in support of these claims. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination and nexus opinions in support of his claims for service connection for GERD and for a disability of the groin. Upon thorough review of the claims file and physical examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s GERD had its onset in or is otherwise related to his active duty service, to include a December 1984 complaint of pain in the chest for four days, accentuated by belching or sudden movements? For purposes of providing the requested opinion, please accept as true the Veteran’s report that GERD symptoms began in 1992 while he was stationed in Germany. (The Board reminds the Veteran that in asking the examiner to accept his testimony, the Board does not at this time make a finding as to the credibility of his testimony.) (b.) Is it at least as likely as not that the Veteran’s groin condition had its onset in or is otherwise related to his active duty service? In the event that the criteria for a diagnosis of a groin condition are not met, the examiner should specifically state whether there is any functional impairment associated with the Veteran’s complaints of groin pain. Please complete the “Functional Impact” section of the report of examination. If there is functional impairment, please offer an opinion as to whether it is at least as likely as not that such impairment is associated with the Veteran’s service, to include complaints of groin pain throughout the Veteran’s service. The examiner must provide a fully articulated medical rationale for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.