Citation Nr: 18131251
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-26 711
DATE:	August 31, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

FINDING OF FACT
The Veteran is evaluated at 50 percent for posttraumatic stress, with a combined rating of 70 percent from February 22, 2010, and he is unemployable based solely on his service-connected disabilities.
CONCLUSION OF LAW
The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1989 to April 1992.  He is the recipient of the Purple Heart and the Combat Infantryman Badge.
1. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.
The Veteran asserts he is unable to obtain substantially gainful activity due to service-connected disabilities.  Pertinent to this case, total disability ratings for compensation based on individual unemployability 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 at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  
The Veteran is service connected for posttraumatic stress disorder (PTSD), evaluated at 50 percent from February 22, 2010, with a combined rating of 70 percent from February 22, 2010.  Thus, from February 22, 2010, the Veteran meets the schedular standards for a TDIU per 38 C.F.R. § 4.16(a). Importantly, in addition to the disability listed above, the Veteran has combat related and secondary disabilities that are severe in nature, including neuropathy, tinnitus, and migraine headaches; and later in the appellate period had added service connection for sleep apnea, irritable bowel syndrome, and left knee osteoarthritis, among others.  See October 2012 SSA Examination; see also Rating Codesheet.
The Board also notes that the Veteran informed VA that he was an employee of the United States Postal Service (USPS) and that USPS found in July 2012 that the Veteran was precluded from his work as a letter carrier due to his left leg neuropathy disability.  See July 2012 Memorandum.  
Additionally, the record shows the Veteran has a high school education and 1 year of college, indicating that he may not have significant, transferrable employment skills.  See November 2012 VA Form 8940.
The Board is satisfied that the evidence of record shows that the Veteran’s combined disabilities would render him unemployable in either a physical or sedentary environment. See Geib v. Shinseki, 733 F.3d 1350 (2013) (holding that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). The Veteran’s PTSD manifests with severe symptoms, including difficulty concentrating, irritability, agitation, panic attacks, depressed mood, difficulty adapting to stressful circumstances, suspiciousness, and an inability to establish and maintain effective relationships.  The Veteran’s migraines result in prostrating attacks.  The Veteran’s knee condition causes difficulty bending his knee and walking.  The Board finds that the sum of these conditions would make any type of employment, physical or sedentary, impossible.
In considering all of the Veteran’s service-connected disabilities and affording him the benefit of the doubt, the Board finds that there is sufficient evidence that the Veteran is unemployable due solely to his service-connected disabilities. The criteria for TDIU have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 
REMANDED
Entitlement to service connection for left foot disability is remanded.
Entitlement to service connection for right knee disability is remanded.
Entitlement to service connection for spinal stenosis, including as secondary to left lower extremity is remanded.
Entitlement to an evaluation in excess of 10 percent for migraine headaches is remanded.
REASONS FOR REMAND
Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 
2. Entitlement to service connection for left foot disability is remanded.
The Veteran asserts he has a left foot disability, to include left tarsal tunnel syndrome, that is due to service-connected disability.  See August 2013 Statement.  The Veteran is service-connected for a left sural nerve neuropathy and shrapnel scars of the left leg disabilities due to injuries incurred in combat.  Further, since the Veteran was examined in connection with this appeal, service connection has been granted for a left knee disability.  See January 2018 Rating Decision.
The Board finds that an additional VA examination and opinion are also necessary to determine whether the manifests a Veteran’s left foot disability that was caused or aggravated by service-connected disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
3. Entitlement to service connection for right knee disability is remanded.
The Veteran asserts he has a right knee disability that is due to service-connected disability.  See August 2013 Statement. In support of his opinion, the Veteran submitted a September 2012 opinion from L.E., M.D. regarding overuse of the right knee. See September 2012 VA Record. Further, since the Veteran was examined in connection with this appeal, service connection has been granted for a left knee disability.  See January 2018 Rating Decision.
The Board finds that an additional VA examination and opinion with sufficient rationale in support of its findings are necessary to determine whether the manifests a Veteran’s right knee disability that is caused or aggravated by service-connected disability. Id.; see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).
4. Entitlement to service connection for spinal stenosis, including as secondary to left lower extremity is remanded.
The Veteran asserts he has a lumbar spine disability that is due to service-connected disability.  See August 2013 Statement.  
The Board notes the presence of post-service, work-related injury in 2010 that involved the Veteran’s lumbar spine.  See June 2012 VA examination. 
However, as the Veteran has been granted service connection for left knee degenerative joint disease, is service-connected for other left lower extremity disabilities, and asserts that these disabilities have aggravated his lumbar spine disability, the Board finds that an additional opinion is warranted to address his contentions.  See McClendon, 20 Vet. App. at 79.
5. Entitlement to an evaluation in excess of 10 percent for migraine headaches is remanded.
The Veteran asserts he is entitled to an increased evaluation for migraine headaches and has submitted evidence of a worsening of his disability.  See November 2017 Narrative.  The Board notes this report does not indicate whether the Veteran experiences prostrating attacks, contain information on the impact of his migraine disability on his ability to secure or follow a substantially gainful occupation, or whether they are productive of severe economic inadaptability.  
Accordingly, the Veteran should be afforded a current examination to determine the nature and severity of his service-connected migraine disability.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green, 1 Vet. App. at 124.
Finally, as noted above, the Veteran informed VA that he was an employee of the United States Postal Service. Pursuant to its duty to assist, VA “shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” 38 U.S.C. § 5103A(a)(1). 
The Veteran must provide sufficient information to reasonably identify where records are located and must “authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records.” 38 U.S.C. § 5103A(b) (2012); 38 C.F.R.§ 3.159 (c)(2)(i), (ii) (2017). 
The Board finds that the Veteran has provided information sufficient to identify and locate these Federal records and that these records are relevant to the Veteran’s appeal. On remand the Veteran should be requested to authorize the release of his complete USPS employment records. 38 U.S.C. § 5103A(c)(1) (2012); 38 C.F.R. § 3.159(c)(2) (2017). 
The matters are REMANDED for the following action:
1. Obtain all VA treatment records and associate such record with the claims file. If no such records exist, obtain a negative response and associate that response with the claims file. 
2. Request the Veteran provide authorization and/or release for his United States Postal Service employment records. 
3. IF the Veteran authorizes release - Request from the U.S. Postal Service any and all administrative or medical records. The RO must continue in its efforts to obtain these records until it is determined that the records do not exist or that further efforts to obtain the records would be futile. If this is the case, the RO must obtain a negative response from the U.S. Postal Service or other appropriate Federal department or agency that is the custodian of such records, to the extent possible. The RO must document all efforts to obtain such records and associate all such documentation with the claims file.
4. After completing the above directive, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his left foot disability.  
The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information:
 (a) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a left foot disability (to include tarsal tunnel syndrome) that is due to or otherwise causally or etiologically related to his military service. 
(b) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a left foot disability (to include tarsal tunnel syndrome) that is due to his left leg sural neuropathy or degenerative joint disease.
(c) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a left foot disability (to include tarsal tunnel syndrome) that is aggravated (increased beyond natural progression of the disease) by his left leg sural neuropathy or degenerative joint disease, to specifically include the service-connected left knee disorder and any resultant gait abnormalities.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)
5. After completing the above directive, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his right knee disability.  
The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should address the September 2012 opinion from L.E., M.D. regarding overuse of the right knee. See September 2012 VA Record. The examiner is requested to provide the following information:
 (a) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a right knee disability is due to or otherwise causally or etiologically related to his military service. 
(b) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a right knee disability that is due to his left leg sural neuropathy or degenerative joint disease.
(c) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a right knee disability that is aggravated (increased beyond natural progression of the disease) by his left leg sural neuropathy or degenerative joint disease, to specifically include the service-connected left knee disorder and any resultant gait abnormalities.
6. After completing the above directive, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his lumbar spine disability.  The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information:
 (a) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a lumbar spine disability is due to or otherwise causally or etiologically related to his military service. 
(b) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a lumbar spine disability that is due to his left leg sural neuropathy or degenerative joint disease.
(c) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has a lumbar spine disability that is aggravated (increased beyond natural progression of the disease) by his left leg sural neuropathy or degenerative joint disease, to specifically include the service-connected left knee disorder and any resultant gait abnormalities.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)
7. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected headache disability. All necessary tests should be performed. All findings should be reported in detail. The claims file should be made available to the examiner for review in connection with the examination. 
In particular, the examiner should opine as to whether the Veteran’s headache disorder is productive of prostrating attacks, and if so comment on the frequency of these attacks and whether they are productive of severe economic inadaptability. The examiner should also identify any other manifestations of the Veteran’s headache disorder. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.
 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Trickey, Jonathan 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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