Citation Nr: 22016994 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 14-39 174 DATE: March 23, 2022 ORDER Entitlement to a total disability rating based on individual unemployability is denied. REMANDED Entitlement to service connection for hypertension, to include as due to posttraumatic stress disorder and alcohol use disorder is remanded. FINDING OF FACT The weight of the competent and probative evidence is persuasively against finding that the Veteran's service-connected disabilities render him unable to secure or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability (TDIU) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to October 1986 and in January 1988. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board and remanded for additional development in July 2019 and August 2021. The issue of entitlement to service connection for an acquired psychiatric disorder was also remanded in August 2021. In a December 2021 rating decision, the agency of original jurisdiction granted service connection for posttraumatic stress disorder and alcohol use disorder. As this represents a full grant of the benefit sought, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes an appeal before the Board). 1. Entitlement to a total disability rating based on individual unemployability A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Attention should be given to whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). See Ray at 73. The Veteran's PTSD and alcohol use disorder are rated as 70 percent disabling from December 13, 2013. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). After reviewing the evidence of record, the Board finds that a TDIU is not warranted. In compliance with the August 2021 remand directive, the AOJ sent the Veteran a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in an effort to obtain updated information regarding the Veteran's employment status. See August 31, 2021, Development Letter. Unfortunately, the Veteran did not return an updated application or otherwise respond to the request. In a September 2014 Application for Increased Compensation Based on Unemployability, the Veteran indicated he was unable to work because of his knees. At the time of the application, the Veteran was employed on a part-time basis in environmental maintenance with highest gross earnings of $1,000 per month. The Veteran worked as a full-time Protective Services Officer from October 2007 to January 2013. In a December 2011 visit summary, the physician noted the Veteran was unable to continue present work that required prolonged standing and walking and would need to apply for disability if sedentary duties were not available. In January 2015, the Community Employment Coordinator (CEC) noted that financial concerns prompted the Veteran to reach out for assistance in seeking full-time federal employment. The CEC identified additional past relevant work for the Veteran in food service and commercial driving but found that the Veteran did not renew his commercial driver's license. During his November 2019 PTSD examination, the Veteran indicated that he continues to work full time in housekeeping. At that time, the Veteran denied any work-related problems and indicated that he finds work to be stimulating. The most recent evidence of record regarding the Veteran's employment status is derived from his September 2021 PTSD examination. At that time, the Veteran indicated that he worked in security and had been with his current employer for three to four months. The Veteran indicated that his employment was going well so far as he didn't have to interact with others very much. The Veteran also reported that he was previously fired from four jobs and his depression made it difficult for him to engage with others. He indicated that he struggled to get along with co-workers due to irritability. In light of the consistent evidence of work earning more than a marginal income, the Board finds the evidence is persuasively against finding that the Veteran's service-connected disabilities render him unable to secure or maintain substantially gainful employment. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to posttraumatic stress disorder and alcohol use disorder is remanded. The Board is unable to make a fully informed decision on the issue of service connection for hypertension, to include as due to PTSD and alcohol use disorder. The Veteran contends that his hypertension is due to self-medication with alcohol due to mental condition. May 31, 2016, Correspondence. The Board finds that the September 2021 and January 2022 medical opinions obtained after the August 2021 remand are inadequate for adjudication purposes and an additional remand is warranted. Prior to the December 2021 rating decision granting service connection for PTSD and alcohol use disorder, the September 2021 examiner opined that it appears that hypertension is related to alcohol consumption and stress as opposed to secondary to psychiatric condition. The examiner also highlighted the fact that a psychiatric disorder was not service connected at the time. The AOJ obtained a clarifying opinion in January 2022. The examiner opined that hypertension is due to pathophysiology of arterial and venous resistance and therefore not determined or caused by PTSD. She reasoned that while stress, excitement, and emotional or psychological conditions may cause an acute bump or elevation of blood pressure due to adrenalin, there is no research to support the etiology or long-term effect on blood pressure. The September 2021 opinion was rendered prior to the grant of service connection for PTSD and alcohol use disorder and is therefore based on an incorrect premise. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). The January 2022 opinion failed to address the aggravation prong of secondary service connection and did not address or consider service-connected alcohol use disorder or the September 2021 opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that an opinion will be considered inadequate unless it addresses both the caused by and aggravation prongs for secondary service-connection). As such, remand for an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the appropriate clinician to determine the nature and etiology of the Veteran's hypertension, to include as due to PTSD and alcohol use disorder. The examiner should review the claims file and address the following. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension (1) manifested during active service or is otherwise related to an in-service injury, event, or disease, (2) manifested within one year after discharge from service, or (3) was noted in service with continuity of the same symptomatology since service. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD and alcohol use disorder proximately caused the Veteran's hypertension. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD and alcohol use disorder aggravated (i.e., worsened beyond its normal progression) the Veteran's hypertension. (Continued on the next page) The examiner should consider and address the September 2021 medical opinion that it appears hypertension is related to alcohol consumption and stress. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.