Citation Nr: 22017498 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-16 544 DATE: March 25, 2022 ORDER A total disability rating based on individual unemployability (TDIU) is granted. REMANDED Service connection for valvular heart disease is remanded. Service connection for a back disability is remanded. Service connection for a right knee disability is remanded. FINDING OF FACT Resolving any reasonable doubt in his favor, the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to December 1970. In a November 2019 decision, the Board of Veterans' Appeals (Board) denied his service connection claims for valvular heart disease and a back disability, as well as his TDIU claim. He then appealed to the Court of Appeals for Veterans Claims, which granted a joint motion for partial remand (JMPR) to the Board in November 2020. The Board remanded the service connection claim for a right knee disability to the agency of original jurisdiction (AOJ) in November 2019 and September 2020. All four claims now return to the Board for further review. TDIU The parties to the JMPR agreed that the Board's reasons and bases for denying a TDIU were inadequate because the Board failed to address relevant evidence and did not address whether the Veteran was capable of the physical and mental acts required of employment. Specifically, the Board did not discuss the Veteran's "history of anger and frustration, manifesting in angry outbursts at work and toward children." JMPR at 5. Additionally, the parties agreed that the Board erred in relying on evidence showing that the Veteran was not actively looking for work. Id. After carefully reexamining the evidence of record, the Board finds that a TDIU is warranted. VA will grant a TDIU, when the schedular rating is less than total, if the evidence shows that 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). A schedular TDIU is available where: there is only one service-connected disability, and it is rated at 60 percent or more; or there are two or more disabilities, with at least one disability rated 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. 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. Attention should be given to a veteran's history, education, skills, and training; whether they have 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 they have 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). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances. 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). As discussed in the prior decision, the Veteran meets the basic percentage requirements for a schedular TDIU. His service-connected PTSD is rated at 70 percent, as of April 19, 2016; he has no other service-connected disabilities. The question before the Board, then, is whether the Veteran's PTSD is severe enough to render him unemployable. The most probative evidence of record demonstrates that it is. The Veteran reported that he last worked fulltime, as a teacher, in January 2016. See e.g. April 2017 VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability. He continued to work in that role parttime until March 2017. See VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Prior to teaching, he worked in a dance studio for 20 years, and as a bus driver. He has a master's degree, and in July 2016, he reported that he was working on a Ph.D. in teaching and learning. At his July 2016 VA PTSD examination, the Veteran reported symptoms including hypervigilance, anxiety, suspiciousness, chronic sleep impairment, and impaired impulse control, such as unprovoked irritability with periods of violence. The 2016 examiner noted that irritable mood and congruent behavior were "central features" of the interview, listing several examples. In particular, the Veteran and his spouse reported that he had lost jobs due to his anger, and one employer told him he needed to see a psychiatrist for the same reason. The Veteran described an incident where "he lost control and tore up the room" after learning that he was not going to perform abroad with the dance company. On another occasion, he almost attacked his grandson for being disrespectful. His spouse stated that she has "seen him so angry that he has shattered glass doors by slamming them." The 2016 examiner determined that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. This finding was "primarily based on the persistent impact irritability plays in [his] daily life." The examiner also noted that suspiciousness and hypervigilance impact his productivity and reliability. In July 2017, another VA examiner made similar findings. The 2017 examiner documented PTSD symptoms, including irritable behavior and angry outbursts (with little or no provocation), depressed mood, suspiciousness, chronic seep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships, and suicidal ideation. At that time, the Veteran was still working parttime as a substitute teacher. He reported increased irritability at work, such that he had yelled at his students. He also mentioned that worsening depression made it difficult to be motivated to go to work. Like the previous examiner, the 2017 examiner found that the Veteran's symptoms caused occupational and social impairment with reduced reliability and productivity. Notably, the 2017 examiner commented that his irritability "is a functional impairment that could lead to being disciplined or losing his employment." The 2016 and 2017 examiners' findings are generally consistent with other evidence on file, including VA treatment records. For example, an October 2018 behavioral health note indicates that the Veteran reportedly stopped working as a substitute teacher due to PTSD. He stated that he "just couldn't go anymore" and "stopped showing up." He shared that he had become more irritable and more easily angered, and he had noticed an increase in difficulty focusing and redirecting his thoughts. Similarly, a January 2019 VA mental health note reflects that he was no longer teaching because he "couldn't handle the students anymore." Another January 2019 record indicates that he lacks motivation and is easily triggered by the media, which prompts him to verbally lash out. The evidence above reasonably shows that the Veteran lacks the mental ability to work as a teacher, or in any other occupation consistent with his history, due to symptoms like impaired impulse control, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. These service-connected symptoms reduce his ability to handle workplace stress, get along with coworkers and students, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 73. Accordingly, resolving any reasonable doubt in his favor, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected PTSD. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A TDIU is granted. REASONS FOR REMAND 1. Service connection for valvular heart disease is remanded. The parties to the JMPR agreed that the Board relied on an inadequate VA examination in denying service connection for the Veteran's valvular heart disease. While the August 2016 VA examiner noted that valvular heart disease was not presumptively linked to herbicide agent exposure, the examiner failed to provide an opinion on whether the disability was directly related to such exposure during service. JMPR at 3; see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (the availability of presumptive service connection does not preclude a veteran from establishing service connection with proof of direct causation). Remand to the AOJ for a new VA examination and opinion on direct service connection is necessary to comply with the terms of the JMPR. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006); Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Service connection for a back disability is remanded. The parties to the JMPR agreed that remand was necessary so that the Board could make reasonable efforts to obtain outstanding private treatment records for the Veteran's back disability. The parties noted he testified in August 2019 that he received chiropractic treatment for his back in the 1970s; however, VA made no efforts to obtain these records after the hearing. JMPR at 2-3. Thus, remand to the AOJ is warranted so that the AOJ can attempt to obtain them. Forcier, 19 Vet. App. at 425; Stegall, 11 Vet. App. at 271. Additionally, the parties to the JMPR agreed that the Board's reasons and bases for denying service connection for a back disability were inadequate. The parties explained that the Board, in finding that a VA examination was unnecessary, failed to consider the Veteran's competent testimony regarding his back pain since service and a reported diagnosis of degenerative disc or joint disease in the 1970s. Id. at 3-4. Upon review, the Board finds that the record contains competent evidence of a current disability, an injury in service, and an indication that the disability may be associated with service. However, there is insufficient medical evidence on file to decide the claim. As such, remand to the AOJ for an initial VA examination is also necessary. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Service connection for a right knee disability is remanded. The Veteran contends his right knee disability (claimed as total knee replacement) is related to an injury in service. In August 2019, he testified that he twisted his knee running but he did not go to sickbay at the time. He reported that he first sought treatment for his knee in 1973, about three years after separation. He also indicated that his doctors later determined his "injuries ... went back to [the] 1970s" based on x-rays and CT scans. The Board previously remanded the knee claim to the AOJ for additional development and readjudication. However, to date, the Veteran has not received a VA examination to determine the nature and etiology of this disability. The Board finds that the record contains competent evidence of a current disability, an in-service injury, and an indication that the disability may be associated with service, but insufficient medical evidence to decide the claim. Thus, another remand is warranted. McLendon, 20 Vet. App. at 81. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the private chiropractic treatment records identified at the August 2019 hearing, as well as any other outstanding private treatment records. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Associate any records received with the claims file. 2. Schedule an examination with an appropriate clinician to determine the nature and etiology of the Veteran's heart disease. After reviewing the claims file, including this remand, the examiner must provide an opinion on whether the disability is at least as likely as not (50 percent or greater probability) directly related to service, to include exposure to herbicide agents. 3. Schedule an examination with an appropriate clinician to determine the nature and etiology of the Veteran's back and right knee disabilities. After reviewing the claims file, including this remand, the examiner must provide an opinion on the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the back disability was incurred in or is otherwise related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the back disability became manifest within one year of separation from service? If so, what were the manifestations? (c.) Is it at least as likely as not (50 percent or greater probability) that the right knee disability was incurred in or is otherwise related to service? (d.) Is it at least as likely as not (50 percent or greater probability) that the right knee disability became manifest within one year of separation from service? If so, what were the manifestations? The examiner must clearly consider and discuss the Veteran's lay statements regarding the onset and course of his symptoms in the opinions. These statements include, but are not limited to, his testimony before the Board in August 2019. 4. Review the medical opinions above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 5. Readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.