BILATERAL LEG DISABILITY

JAMES SPRINGER · 2022 · Case ID: 22026585

MIXED

Summary

The veteran, who served from August 1989 to December 1991, including service in Southwest Asia from December 1990 to May 1991, appeals the denial of service connection for several conditions and seeks an increased rating for PTSD. The Board granted entitlement to a total disability based on individual unemployability (TDIU) effective December 10, 2016, finding that the veteran's service-connected PTSD and headaches precluded substantially gainful employment. The Board noted the veteran's PTSD symptoms, including irritability, angry outbursts, and difficulty interacting with others, as well as his frequent prostrating headaches, which significantly impacted his ability to work. Evidence from a VA PTSD examination, a VA headache examination, a co-worker's statement, and an SSA psychiatric evaluation supported the finding that the veteran's disabilities prevented him from maintaining substantially gainful employment. The Board found the SSA determination highly probative, indicating disability due to trauma and stress-related disorders. The Board remanded claims for neck, sinus, lung, and bilateral leg disabilities for further development, including obtaining outstanding VA and private treatment records, and for addendum opinions addressing nexus and specific assertions related to service connection and symptom onset. The increased rating claim for PTSD was also remanded for further clarification regarding occupational and social impairment.

Special Benefit

TDIU

Docket No.

17-23 780

Full Decision Text

Citation Nr: 22026585
Decision Date: 05/05/22 Archive Date: 05/05/22

DOCKET NO. 17-23 780
DATE: May 5, 2022

ORDER

Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the laws and regulations governing the payment of monetary benefits.

REMANDED

Entitlement to service connection for a neck disability is remanded.

Entitlement to service connection for a sinus disability is remanded.

Entitlement to service connection for a lung disability is remanded.

Entitlement to service connection for a bilateral leg disability is remanded.

Entitlement to an increased initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded.

FINDING OF FACT

The probative evidence of record indicates that it is at least as likely as not that the Veteran's service-connected disabilities have precluded substantially gainful employment since December 10, 2016.

CONCLUSION OF LAW

The criteria for a TDIU are met, effective December 10, 2016. 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 had active service from August 1989 to December 1991. He had service in Southwest Asia from December 1990 to May 1991.

These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

The December 2016 notice of disagreement and January 2022 informal hearing presentation, expressly raised the issue of entitlement to a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The record indicates that the Veteran has been unemployed during the appeal period. Accordingly, the Board finds that a TDIU claim is part and parcel of the Veteran's increased rating claim for PTSD, and that issue has been added to the cover page.

Regarding the Veteran's sinus claim, he initially filed a claim for service connection for sinusitis. Nevertheless, in light of the other sinus diagnoses, the Board has expanded the Veteran's claim to include all sinus disabilities, and the issue has been recharacterized as stated on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009).

These matters were last before the Board in September 2021, when they were remanded for additional development.

TDIU

VA will grant a TDIU when the schedular rating is less than total and the evidence shows that a veteran is precluded, due to a service-connected disability or disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough, as a high rating is itself recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Id.

The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability for a combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2020).

The Veteran is currently service connected for PTSD, rated as 70 percent disabling; migraine headaches rated 50 percent disabling; tinnitus rated 10 percent disabling; and bilateral hearing loss rated as noncompensable. He has met the schedular requirements for a TDIU since June 1, 2016, as his combined disability rating was 90 percent and he had at least one disability ratable at 40 percent disabling or more.
there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability for a combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2020).

Accordingly, the question becomes whether the evidence supports entitlement to a TDIU. On his March 2017 VA Form 21-8940, the Veteran reported having a high school education and one year of college. He reported that he had worked as a cable company supervisor until December 2016. He noted that thereafter he worked three months for an insurance company with one month of lost time due to medical conditions and had earned only $1000 from that job. He noted that he had obtained his insurance broker license but was fired before he could use it. He stated that he was released from his job at the cable company because of the way he ran his team, the fact people did not feel safe around him because of his PTSD, and the fact that he missed too much work due to an on-the-job injury and VA appointments.

On a March 2018 VA Form 21-8940, the Veteran reported that he was unable to work because of his service-connected headaches and PTSD. He reported that he had not worked fulltime since December 9, 2016. He noted that he worked for an insurance company from January 2017 through March 2017 but had only earned $176 per month and lost approximately one month of time due to illness.

A November 2016 PTSD examination report noted that the Veteran's occupational functioning was negatively impacted by his PTSD as he was irritable at work, had difficulty adapting to stressful circumstances, and missed work for medical appointments.

On a December 2016 VA Form 21-0958, the Veteran reported that he was laid off from his job due to his PTSD.

In a January 2017 statement, D. G., a former co-worker noted that he had worked with the Veteran on a daily basis. He stated that the Veteran was very polarizing in his actions as he would have mood swings where he went from jovial to reclusive, surly, and downright mean. He noted that the Veteran was irritable and tired due to problems sleeping at night. He stated that the Veteran had frequent headaches and had to regularly go home early because of his headaches. D. G. noted that the Veteran ran his team like a boot camp, which resulted in complaints by multiple team members to the Veteran's supervisor about the way he treated and spoke to co-workers.

VA records from January 2017 and February 2017 indicate that the Veteran had multiple recent stressors has he had lost his job in December 2016. It was noted that he had been on light duty and working from home as he had injured his left arm in an on-the-job accident in August 2016.

A VA record from May 2017 noted that the Veteran was fired in December 2016 due to missed work and the side effects of his medications. He reported that he had migraines on average three days per week. He stated that his migraines lasted for hours and that he had to go to a dark and quiet place when his headaches occurred. He was assessed with chronic headaches, irritability, anxiety, memory difficulties, and sleep disturbances. In a later May 2017 record, the Veteran stated that he had lost two jobs due to his headaches.

A May 2017 SSA psychiatric evaluation from Dr. Moore indicates that the Veteran was terminated from his job in December 2016 after he did not complete a required training due to scheduling conflicts with his medical appointments and angry outbursts wherein his behavior was characterized as a "threat" by his employer. Dr. Moore opined that the Veteran's PTSD and depressive disorder would result in moderate limitations in understanding, remembering, and applying information; moderate limitations with concertation, persistence, and pace; moderate limitations in adaptation and managing himself; and severe limitations in interacting with others. A SSA disability determination indicate that the Veteran has been disabled since December 9, 2016 due to a primary diagnosis of trauma and stress related disorders.

A March 2017 VA PTSD examination report noted that
Dr. Moore indicates that the Veteran was terminated from his job in December 2016 after he did not complete a required training due to scheduling conflicts with his medical appointments and angry outbursts wherein his behavior was characterized as a "threat" by his employer. Dr. Moore opined that the Veteran's PTSD and depressive disorder would result in moderate limitations in understanding, remembering, and applying information; moderate limitations with concertation, persistence, and pace; moderate limitations in adaptation and managing himself; and severe limitations in interacting with others. A SSA disability determination indicate that the Veteran has been disabled since December 9, 2016 due to a primary diagnosis of trauma and stress related disorders.

A March 2017 VA PTSD examination report noted that the Veteran said he was able to work but was released from his last job because of medical absences. The examiner noted that the Veteran had disturbances of motivation and mood, unprovoked irritable behavior with angry outbursts, and controlling behavior without obsessional rituals. The examiner noted that a WHO Disability Assessment Schedule indicated that the Veteran was 100 percent impaired in his ability to get along with others. The examiner noted that the Veteran had multiple distinct psychiatric diagnoses and opined that 40 percent of the Veteran's social impairment and 50 percent of his occupational impairment was due to his service-connected PTSD.

A March 2017 VA headache examination report noted that the Veteran's headaches negatively impacted his ability to work as he had to leave work early at times due to his headaches and light sensitivity.

A June 2017 neuropsychology note indicates that the Veteran endorsed irritability and verbally snapping at others. He noted that he had last worked in December 2016 and that he had no interest in returning to work because he did not get along with people. The physician noted that the Veteran did not meet the criteria for a neurocognitive disorder and his reported cognitive and functional difficulties in day-to-day life were strongly suspected to be due to his ongoing significant mental health symptoms.

A March 2018 VA headache examination report indicates that the Veteran worked as a cable television field supervisor until December 2016 when his employment ended because he needed time off due to headaches due to his left shoulder injury. The examiner opined that the Veteran's headaches had a significant impact on his ability to work. Specifically, the examiner noted that the Veteran had prostrating headaches 2-3 times per week which would have a major impact on his ability to function at work even in a home-based employment atmosphere and/or a sedentary level.

A May 2018 VA PTSD examination report notes that the Veteran last worked in December 2016 for a communication company. He reported that he was injured in an accident and transferred to working at home because of his physical limitations. He noted that later the company tried to change him from a supervisory position to field technician because his subordinates had complained that he was running his team like the military. He noted he had tried to work in insurance sales but was let go because of his frequent medical appointments and the fact that they found out about his PTSD and were afraid of him.

A May 2018 VA headache examination report notes that the Veteran's headaches impacted his ability to work as he lost his last job because of missing too much work.

A June 2019 VA PTSD examination notes that the Veteran had very good occupational functioning until he was laid off related to a shoulder injury. However, the Veteran reported that while working for the cable company he had been counseled by his supervisor because his workers had complained that he ran his team like a drill sergeant. The Veteran reported that between the co-worker complaints and his shoulder injury he was laid off.

After reviewing the evidence and resolving reasonable doubt in the Veteran's favor, the Board finds his service-connected disabilities have precluded substantially gainful employment since December 10, 2016, the day after he reportedly stopped working. Specifically, his PTSD would cause significant impairment interacting with others in any employment setting due to his unprovoked irritability with angry outbursts and controlling behavior. See March 2017 VA PTSD examination, May 2017 SSA psychiatric evaluation, January 2017 D. G. statement. His PTSD also results in moderate limitations in understanding, remembering, and applying information; moderate limitations with concertation, persistence, and pace; moderate limitations in adaptation and managing himself that would further hinder his ability to work. Id. Moreover, his headaches result in major occupational impairment even for sedentary employment tasks as he frequently would be unable to work due to his prostrating headaches. See VA headache examination report from March 2018 and January 2017 D. G. statement. While not binding, the Board finds that the SSA disability determination is highly probative as it indicates that the Veteran was disabled due
VA PTSD examination, May 2017 SSA psychiatric evaluation, January 2017 D. G. statement. His PTSD also results in moderate limitations in understanding, remembering, and applying information; moderate limitations with concertation, persistence, and pace; moderate limitations in adaptation and managing himself that would further hinder his ability to work. Id. Moreover, his headaches result in major occupational impairment even for sedentary employment tasks as he frequently would be unable to work due to his prostrating headaches. See VA headache examination report from March 2018 and January 2017 D. G. statement. While not binding, the Board finds that the SSA disability determination is highly probative as it indicates that the Veteran was disabled due to his "trauma and stress related disorders."

The Board has not overlooked the fact that the Veteran had a left shoulder workman's compensation injury that negatively impacts his ability to work and was, in part, the reason he was laid off. See e.g., March 2018 VA headache examination report. The Board also acknowledges that the June 2019 VA PTSD examiner indicated that the Veteran had very good occupational functioning until he was laid off in 2016. While the Board acknowledges that the Veteran's shoulder injury contributed to his termination from the cable company, the evidence of record indicates that the Veteran's PTSD symptoms caused and would continue to cause significant work-related problems. See January 2017 D. G. statement and May 2017 SSA psychiatric evaluation. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities render him unable to secure and follow a substantially gainful occupation, and entitlement to TDIU is warranted, effective December 10, 2016.

REASONS FOR REMAND

The evidence indicates there may be outstanding relevant VA treatment records. A December 31, 2021, VA treatment record indicates that the Veteran was to return for a follow up appointment in January 2022. VA treatment records subsequent to December 10, 2021, have not been associated with the claims file. Additionally, a VA record entry from January 12, 2017 notes that non-VA mental health records from November 30, 2016, to January 9, 2017, from Dr. Skurta had been scanned into VistA Imaging. VA record entries from April 30, 2018, June 4, 2018, and September 12, 2018 indicate that February 5, 2018, June 4, 2018, and September 12, 2018 sleep study and pulmonary records had been scanned into VistA Imaging. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required.

The record also indicates that there are outstanding private treatment records. A VA treatment record from October 3, 2018 indicates that the Veteran received treatment from a non-VA provider, Dr. Sadana. To date, these records have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain them.

Regarding the Veteran's neck claim, while VA examinations and opinions were obtained in July 2018 and December 2021 further clarification is required. Specifically, neither examiner addressed the Veteran's assertions that his neck pain began during service and continued since that time. Additionally, neither examiner addressed his assertions that his neck disability was related to carrying heavy things during service. Accordingly, there has not been substantial compliance with the prior remand directives and an addendum opinion is warranted.

Regarding his sinus claim, while an opinion was obtained in December 2021, further clarification is required. Specifically, the examiner did not address his assertion that his sinus disability, diagnosed as rhinitis and sinusitis, were related to his service in Southwest Asia during the Persian Gulf War. See January 2022 Informal Hearing Presentation. Accordingly, an addendum opinion is required.

Regarding the Veteran's lung claim, while VA examinations and opinions were obtained in July 2018 and December 2021 further clarification. Specifically, neither examiner addressed the evidence regarding a diagnosis of asthma. Additionally, in rendering negative nexus opinions neither examiner addressed or acknowledged the Veteran's reports of dyspnea during and since service. Accordingly, there has not been substantial compliance with the prior remand directive and an addendum opinion is warranted.

Regarding his bilateral leg claim, while the examiner noted a diagnosis of restless leg syndrome the examiner did not render a nexus opinion regarding that diagnosis. See December 2021 VA opinion. Additionally, while VA treatment records noted leg cramps on the Veteran's active problem list, the examiner indicated that no chronic diagnosis was made as the Veteran's symptoms were entirely subjective
in July 2018 and December 2021 further clarification. Specifically, neither examiner addressed the evidence regarding a diagnosis of asthma. Additionally, in rendering negative nexus opinions neither examiner addressed or acknowledged the Veteran's reports of dyspnea during and since service. Accordingly, there has not been substantial compliance with the prior remand directive and an addendum opinion is warranted.

Regarding his bilateral leg claim, while the examiner noted a diagnosis of restless leg syndrome the examiner did not render a nexus opinion regarding that diagnosis. See December 2021 VA opinion. Additionally, while VA treatment records noted leg cramps on the Veteran's active problem list, the examiner indicated that no chronic diagnosis was made as the Veteran's symptoms were entirely subjective. Therefore, the examiner opined that a nexus was not established. However, the examiner did not acknowledge the Veteran's reports of leg cramps during service. See November 1991 Report of medical history. Finally, the examiner did not acknowledge or address the documented diagnosis of radiculopathy. See June 10, 2021. Accordingly, an addendum opinion is required.

The matters are REMANDED for the following actions:

1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, including Dr. Sadana. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records as well as the VistA Imaging records referenced in the January 12, 2017, April 30, 2018, June 4, 2018, and September 12, 2018 VA record entries. If any such records are determined to be unavailable, issue a formal finding of unavailability and notify the Veteran of this fact.

2. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's neck claim. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that any neck disability had its onset during service or is otherwise related to service, to include his in-service car accident and reports of carrying heavy things.

In so opining, the clinician should address the documented diagnoses of degenerative disc disease of the neck, cervical spondylosis with protrusion, and cervicalgia.

A complete rationale should be provided for all opinions and conclusions expressed.

3. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's sinus claim. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sinusitis and rhinitis had their onset during service, manifested to any degree within 10 years of service, or are otherwise related to service, to include his service in Southwest Asia. A complete rationale should be provided for all opinions and conclusions expressed.

4. After records development is completed to the extent possible, the Veteran should be afforded a VA examination to determine the nature of his claimed lung disability and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should:

(a.) Identify any disability manifested by shortness of breath and state whether it is at least as likely as not (50 percent probability or greater) that it arose during service or is otherwise related to service, to include his service in Southwest Asia.

(b.) In so opining, the examiner must address the notations regarding mild asthma. See e.g., March 6, 2020 and November 19, 2021 VA records. The examiner should also address the Veteran's reports that his lung disability began during service and has continued since that time. See March 2018 notice of disagreement.

(c.) If the examiner finds that the Veteran meets the diagnostic criteria for asthma, the examiner should indicate whether it is at least as likely not (50 percent probability or greater) that it manifested to any degree within 10 years of service.

(d.) If there is no diagnosis to account for the Veteran's lung symptoms, the examiner should indicate whether there are objective indications of disability and whether such indications represent an undiagnosed illness consistent with service in Southwest Asia.

A complete rationale should be provided for all opinions and conclusions
November 19, 2021 VA records. The examiner should also address the Veteran's reports that his lung disability began during service and has continued since that time. See March 2018 notice of disagreement.

A complete rationale should be provided for all opinions and conclusions expressed.

5. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's bilateral leg claim. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should:

(a.) State whether it is at least as likely as not (50 percent probability or greater) that any right or left leg disability had its onset during service or is otherwise related to service, to include his service in Southwest Asia and his November 1991 endorsement of leg cramps.

In so opining, the clinician must address the documented diagnoses of restless leg syndrome, leg cramps, and radiculopathy. See June 10, 2021 and February 10, 2017 VA records and December 2021 VA examination report.

(b.) If there is no diagnosis to account for the Veteran's leg symptoms, the clinician should indicate whether there are objective indications of disability and whether such indications represent an undiagnosed illness consistent with service in Southwest Asia.

A complete rationale should be provided for all opinions and conclusions expressed.

6. Thereafter, readjudicate the appeal.

James Springer

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Anderson

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.

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