Citation Nr: 1760254
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-03 721 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1. Entitlement to service connection for a heart disability, to include as secondary to service-connected anxiety disorder.

2. Entitlement to an initial rating in excess of 70 percent for anxiety disorder.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Veteran represented by: Andrew L. Wener, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L. N., Counsel

INTRODUCTION

The Veteran served on active duty from May 1991 to November 1998. Prior thereto, from July 1987 to December 1987, she served on active duty for training.

These claims come before the Board of Veterans’ Appeals (Board) on appeal from April 2012 and February 2013 rating decisions of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). The RO in Winston-Salem, North Carolina, certified these claims to the Board for appellate review.

In June 2017, the Veteran testified in support of this appeal during a videoconference hearing held before the undersigned Veterans Law Judge.

The issues of entitlement to service connection for a heart disability and entitlement to an initial rating in excess of 70 percent for anxiety disorder are REMANDED to the Agency of Original Jurisdiction.

FINDING OF FACT

Service-connected disabilities, rated less than total, make the Veteran unable to secure or follow substantially gainful employment.

CONCLUSION OF LAW

The criteria for entitlement to TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks entitlement to TDIU on the basis that, due to a service-connected anxiety disorder, she stopped working in November 2011. According to written statements she submitted in October 2012, January 2014 and June 2017, and her June 2017 hearing testimony, the Social Security Administration (SSA) found her disabled secondary to a mental health disability, effective November 5, 2011. For 11 years prior to that time, she worked at the Internal Revenue Service, but her mental health worsened, causing her to be unreliable, with her mind racing under pressure. She reportedly had emotional outbursts when frustrated and panic attacks when pressured. She repeated herself when communicating verbally and, occasionally, without warning, became a danger to herself and others. Her mental health problems eventually necessitated her first hospitalization, after which her employer would not allow her to return to work without a doctor’s authorization. Since then, she has reportedly received regular treatment and been hospitalized on additional occasions for mental health issues. Typically, she experiences anxiety, for which she takes medication, but the medication causes depression. Eventually the depression lifts, but it is this alternating state of anxiety and depression, in addition to weekly counseling sessions, monthly psychiatric consultations, and difficulty interacting with others, that hinder her ability to work. She refers to medical opinions of record substantiating her assertion that her service-connected psychiatric disability renders her unemployable.

TDIU may be granted when a claimant’s service-connected disabilities are rated less than total, but prevent her from obtaining or maintaining all gainful employment for which her education and occupational experience would otherwise qualify her. 38 C.F.R. § 4.16 (2017). If a claimant has only one disability, that disability must be rated 60 percent or more. If a claimant has two or more disabilities, there shall be at least one rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017).

Here, the Veteran satisfies the percentage requirements. She is service connected for anxiety disorder, rated 70 percent, and sinusitis with intermittent headaches, rated 30 percent. The combined service-connected disability rating is 80 percent. 38 C.F.R. § 4.25 (2017). The question is therefore whether the service-connected disabilities prevent the Veteran from obtaining or maintaining all gainful employment for which her education and occupational experience would otherwise qualify her. In answering this question, the Board will consider all psychiatric symptoms exhibited during the course of this appeal. That consideration is appropriate because, since 2010, doctors have diagnosed the Veteran with multiple psychiatric disabilities, to include anxiety disorder, and, in September 2011, a VA examiner found it impossible to distinguish symptoms of the anxiety disorder from those of the Veteran’s other psychiatric disorders.

The Veteran has submitted evidence substantiating her claim. From the 1990s, she intermittently complained of mental health problems, including anxiety and depression, and mentioned missing work secondary to mental health difficulties. At some point those problems worsened and in June 2010, she was hospitalized for suicidal thinking and placed on medications. During her stay, she identified work as her sole stressor. Doctors characterized her depression as severe.

Later that year, she was again hospitalized after experiencing increased anxiety, mood lability, episodic agitation and racing thoughts. On intake, she described her job as extremely stressful and reported actions indicating she was a danger to herself and others, including her boss. Thereafter, the Veteran received regular psychiatric treatment and medical professionals noted additional, more severe psychiatric symptoms.

At an August 2011 VA mental health examination, the Veteran reported she had taken 500 hours of leave over the past year due to medical and psychiatric issues. The examiner confirmed the Veteran had difficulty adapting to stressful situations, including at work.

The Veteran last worked in November 2011. Her employer submitted a statement indicating the Veteran stopped working because she received disability retirement. Records from SSA confirm that fact and, based on an SSA consultant’s interview of the Veteran and review of the medical records, include a finding of total disability secondary to mood and anxiety related disorders.

Other doctors agree the Veteran is totally disabled secondary to her psychiatric disabilities. In September 2013, a VA doctor submitted a statement indicating the Veteran remained disabled and unable to work, with needs for outside medication management and psychotherapy. That doctor further indicated he did not anticipate her being able to return to work.

In January 2015, a private medical professional who was managing the Veteran’s psychiatric symptoms characterized those symptoms as moderate to severe. That individual indicated the Veteran’s medications were being adjusted to help her feel better and the Veteran was attending weekly psychotherapy group for support. The individual also indicated that the Veteran was making efforts to improve her health, but in the meantime, it was best she not be employed.

Treatment records dated from 2015 to 2017 show a decline in the Veteran’s mental health, with doctors noting paranoia and multiple instances of self-harm and suicidal ideation. In January 2017, a VA staff psychiatrist noted the Veteran remained unstable and on a high risk protocol with the possibility of suicidal behavior, particularly were her stress level to increase. The psychiatrist described the Veteran as having marked instability of moods with severe panic attacks, which was intractable to treatment. The psychiatrist concluded that the Veteran was clearly unemployable in any type of gainful employment, largely due to the stress it would cause.

The only evidence of record refuting those findings is the report of a VA mental health examination conducted in November 2012. That report indicates that, despite her psychiatric symptoms, the Veteran was able to work in a sedentary job. As all other evidence, including multiple medical opinions, establish that service-connected disabilities, rated less than total, make the Veteran unable to secure or follow substantially gainful employment, the Board finds that the criteria for TDIU are met and the claim for a TDIU must be granted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to TDIU is granted.

REMAND

The Board regrets the delay that will result from remanding rather than immediately deciding the claims of entitlement to service connection for a heart disability and entitlement to an initial rating in excess of 70 percent for anxiety disorder, but additional action is necessary before the Board proceeds.

The Veteran is seeking service connection for a heart disability on multiple bases, including as secondary to a service-connected anxiety disorder. She claims that the anxiety disorder aggravates her heart condition, diagnosed as hypertrophic obstructive cardiomyopathy. To date, no medical professional has offered an opinion on this matter.

In addition, all pertinent treatment records are not yet of record. In May 2017, the Veteran telephoned VA and identified outstanding treatment records to be obtained, but VA did not act in response.

Accordingly, these claims are REMANDED for the following action:

1. Secure and associate with the file all records of the Veteran’s heart and psychiatric treatment at VA facilities in Nashville, Tennessee, dated since 2012; Atlanta, Georgia, dated in 2016 and 2017; and Asheville, North Carolina (dated in 2017).

2. Once all pertinent treatment records have been associated with the record, schedule the Veteran for a VA examination. The examiner should review the entire record, including (a) all post-service treatment records dated since 1999; and (b) the Veteran’s written statements and hearing testimony. The examiner should then opine whether it is at least as likely as not (50 percent or greater probability) that a mental disorder aggravates a nonservice-connected heart disability. The examiner should provide a rationale with references to the record for the opinion.

3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Thereafter, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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