Citation Nr: 1033646 Decision Date: 09/08/10 Archive Date: 09/15/10 DOCKET NO. 04-28 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 Regional Office (RO) in Cleveland, Ohio rating decision, which denied the claim on appeal. The Veteran testified before the undersigned at an October 2005 videoconference hearing. A transcript of the proceeding has been associated with the claims file. The Board remanded the claim in January 2006 and November 2006. The requested development having been undertaken, the claim returns for appellate consideration. The Veteran's statements and the explicit request of the Veteran's representative have raised the issue of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the Veteran's service-connected seizure disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and the matter is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is service connected for complex partial epilepsy with left temporal focus, rated as 20 percent disabling, and residuals of a right distal fibula fracture, rated as 10 percent disabling, for a combined rating of 30 percent. The Veteran does not meet the percentage criteria for TDIU. 2. The evidence demonstrates that the Veteran's service- connected seizure disability prevents him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU on an extraschedular basis are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(b), 4.19, 4.25 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Factual Background In 2002, the Veteran applied for a total disability rating based on individual unemployability, at the same time he filed to reopen his claim for service connection for a seizure disorder. In a January 2006 decision, in pertinent part, the Board reopened the seizure claim and then granted service connection, finding that the Veteran had a seizure disorder that pre-existed service, but was permanently aggravated by service. A January 2006 rating decision effectuated that grant, assigning a 20 percent disability rating for the seizure disorder. A July 1992 private hospital discharge summary noted that the Veteran had worked for approximately 30 years at his prior employer before retiring. In January 1993, the Veteran was afforded a VA examination in connection with his claim for non-service connected pension benefits. At that time, the Veteran reported weekly grand mal seizures, as well as petit mal seizures. On examination there was no gross neurological deficit, but the examiner diagnosed a seizure disorder based on the Veteran's prescription for antiepileptic medication. A September 1993 MRI showed left and right encephalomalacia consistent with old trauma versus chronic seizure focus. At that time, the Veteran also reported a 30 year history of seizures. In November 2001, the Veteran's wife described two types of seizures observed, one in which the Veteran would fall to the ground and would be slumped over and "heavy" for 30 to 40 seconds, with verbal response but no memory for the event afterwards. During the other type of seizure, the Veteran would turn red in the face and have a glazed look in the eyes and possibly lip smacking or repetitive movements during these episodes that would last up to 30 seconds. In December 2001, the Veteran had an EEG that showed highly active L mid-temporal focus, baseline static encephalopathy, and LTL lesion. In August 2002, the Veteran underwent a neuropsychology evaluation at the VA in Wade Park to establish his baseline cognitive functioning. His wife reported a history of at least one seizure per month and a tendency for increased problems every six months, in June and December. The Veteran reported 3 motor vehicle accidents that might have involved a seizure and multiple falls due to seizures. The Veteran stated that he worked as a shipping clerk for 8 years and as a traffic manager for 11 years. The summary and recommendations from the neuropsychological evaluation were very detailed. To summarize, they stated that the Veteran may have significant difficulty understanding others; was quite impaired with memory tasks that required sequencing and ordering of information mentally; had poor executive skills, resulting in inflexibility; had quite impaired verbal memory, with grossly inaccurate recall; and may be difficult to deal with. The examiner even stated that the Veteran would not be able to dependably follow through with his VA claim because of the verbal memory and executive deficits, as he would become confused and irritated. A September 2002 EEG monitoring session showed evidence of L mid- lateral temporal lobe epilepsy without any frank seizures during the evaluation. The Veteran reported experiencing 5 seizures per week prior to beginning anti-seizure medication. He also reported a motor vehicle accident in 1966, falling down a flight of stairs, and losing his job in 1982 as a result of his seizures. The Veteran also claimed to have been thrown through the window of a bus as a result of a seizure. That same month the Veteran reported that his last employment had been as a shipping clerk and that he currently enjoyed working in his vegetable garden. In support of his claim, the Veteran submitted an October 2002 letter from his private physician who noted ongoing treatment for a severely intractable seizure disorder since 1999. The Veteran was being treated with multiple anti-seizure medications, but still experienced approximately one tonic/clonic and 2 complex partial seizures per month. The physician noted that MRI showed significant injury to the left temporal lobe and right frontal lobe consistent with a significant closed head trauma. At that time, the physician noted that he was being evaluated for possible surgical intervention. Subsequent documents show that the Veteran and his wife ultimately decided against surgery due to a lack of finances and the potential loss of 70 percent of vision in one eye. In January 2003, the Veteran's wife reported that the Veteran experienced a seizure approximately once a week, manifested by staring with a red face and then lip smacking and a tendency to tightly grasp objects with his left hand. On occasion, the Veteran's wife also reported facial drooping and no memory for the event after the seizure. In March 2003 the Veteran was afforded a VA examination for residuals of his right fibula fracture. At that time, the Veteran reported pain and occasional swelling in the right ankle area, especially in cold, damp weather or with any type of prolonged walking or standing. The Veteran treated occasionally with Tylenol and elevating the leg, both of which provided relief. On examination, there was some tenderness, but no warmth, swelling, erythema, or bony deformity noted. In March 2003, the Veteran's wife again noted seizures of approximately one per week. In May 2003, the Veteran's wife reported improvement over the past months and years, with about two seizures per month. In July 2006, the Veteran was afforded another VA examination for residuals of his distal right fibula disability. The examiner noted review of the claims file. The Veteran reported some aching, pain, stiffness, and soreness into the right ankle. The Veteran did not use a cane for ambulation and was retired from his job. The Veteran reported some difficulties with normal daily activity because of unrelated (and non-service connected) right knee pain. On examination, the Veteran walked with a noted limp and wore a right knee brace. There was slight tenderness and soreness over the distal fibula, but no swelling or deformity. The Veteran had 10 degrees of dorsiflexion and 35 degrees of plantar flexion. There were no signs of instability and repetitive motion did not cause additional aches, pains, soreness, tenderness, or fatigability. There was arthritis of the right ankle on x-ray. Entitlement to TDIU In essence, the Veteran and his wife argue that the Veteran's seizure disorder has rendered him unemployable since 1982. They point to the Veteran's multiple reported car accidents, his multiple falls and injuries, his purported receipt of Supplemental Security Income (SSI) benefits based on his seizure disorder, and his asserted termination from employment due to his seizure disorder. He last worked as a traffic manager at that time, a position he had held for approximately 11 years. Disability ratings are determined by applying the criteria set forth in VA's Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2009). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU on a Schedular Basis Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2009). The Veteran has two service-connected disabilities: complex partial epilepsy with left temporal focus, rated as 20 percent disabling, and residuals of a right distal fibula fracture, rated as 10 percent disabling. The combined rating for these disabilities is 30 percent. See 38 C.F.R. § 4.25 (2009). Therefore, the Veteran does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. TDIU on an Extraschedular Basis Where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §4.16(b) (2009). In such cases, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service connected conditions and advancing age that would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). A. Procedural Requirements In situations where the provisions of 38 C.F.R. § 4.16(b) are implicated, rating boards should refer to the Director of Compensation and Pension (C&P) Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board itself cannot assign an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board acknowledges that Bagwell and Floyd only dealt with extraschedular ratings under § 3.321(b)(1); however, the analysis in those cases is analogous to TDIU ratings under § 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's C&P Service, in addition to Court precedent requiring consideration of § 4.16(b) when the issue is raised in an increased-rating case. See, e.g., Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Given the foregoing, the Board must specifically adjudicate whether to refer a case to the Director of C&P Service for an extraschedular evaluation when the issue is either raised by the Veteran or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Based on the evidence, in its November 2006 remand, the Board concluded that the Veteran's claim should be referred to the Director of C&P Service for a determination as to whether the Veteran was entitled to an extraschedular TDIU rating in accordance with the provisions of 38 C.F.R. § 4.16(b). The AOJ complied with this request, and the Director of C&P issued an October 2009 letter. The Director of C&P Service completed an administrative review in October 2009. The review noted the Veteran's 20 percent disability rating for complex partial epilepsy with left temporal focus and 10 percent rating for residuals of a right distal fibula fracture. The review discussed the July 1992 private hospital discharge summary that included the notation that the Veteran had worked for an employer for 30 years before retiring. The review also detailed the two different types of seizures experienced by the Veteran and his November 2001 report of 2 seizures per month and September 2002 assessment of intractable seizures consistent with left temporal lobe epilepsy. The review noted the October 2002 private physician's letter noting 1 tonic- clonic and 2 complex partial seizures monthly. In January and March 2003 the Veteran reported experiencing seizures once per week. The review discussed the March 2003 VA orthopedic examination and the unavailability of the Veteran's SSA records. Based on the foregoing, the Director concluded that the evidentiary record failed to sufficiently demonstrate that the Veteran's service-connected disabilities rendered him unable to maintain gainful employment. The residuals of the right distal fibula fracture were noted to be minimally disabling, at most, and the seizures were observed to be of the petit mal variety without evidence that they were of such severity to preclude the ability to maintain gainful employment. In addition, the Director discussed the Veteran's over 30 years of work for his employer prior to retiring and no evidence of record showing that the retirement was the result of the service-connected disabilities. The Director concluded that entitlement to a TDIU evaluation on an extraschedular basis was denied. Therefore, the Board has complied with the legal requirements of referring the case for extraschedular consideration. B. Jurisdictional Concerns Once the Director of C&P declines to assign an extraschedular TDIU rating, the issue of extraschedular rating under 38 C.F.R. § 4.16(b) is no longer before the Board in the first instance. The question is - does the Board now have jurisdiction to adjudicate the extraschedular issue on the merits? For the reasons below, the Board concludes it does. The Board's jurisdictional authority extends to all questions of law and fact in a matter subject to decision by the Secretary involving provision of benefits. 38 U.S.C.A. §§ 511(a), 7104(a). Although the language of 38 C.F.R. § 4.16(b) requires referral of an extraschedular TDIU rating to the Director of C&P for "consideration," it does not indicate that sole authority to adjudicate such claims rests with that individual. Based on the Board's broad jurisdictional authority and the fact that no statute or regulation specifically excludes the Board from reviewing an extraschedular determination made by the Director of C&P, the Board concludes it has the authority to review the merits of the claim, once the referral requirements have been met. In fact, the Court has held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once the Board properly refers an extraschedular rating issue to Director of C&P for review, the Veteran may "continue[ ] to appeal the extraschedular rating aspect of this claim"). Again, although Anderson and Floyd specifically considered application of an extraschedular rating under 38 C.F.R. § 3.321(b), the Board concludes the holdings are equally applicable to consideration of an extraschedular TDIU rating, as that regulation contains a similar requirement for referral. C. Merits of the Claim The evidence of record is mixed with respect to entitlement to an extraschedular rating under 38 C.F.R. § 4.16(b). The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). As always, when reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2009). As to the favorable evidence in support of an extraschedular evaluation for TDIU, the Veteran contends that he has been unable to work since June 1982 due to his service-connected disabilities, specifically due to his seizure disorder. Prior to the Veteran's separation from private employment, the Veteran contends and the record confirms his employment for 30 years, with 11 years as a traffic controller and 8 years as a shipping clerk. The Veteran asserts that he received SSI benefits from January 1983 due to his seizure disorder, until such time as he qualified for benefits due to his age. In this regard, SSA has confirmed that any records relating to the provision of SSI benefits were destroyed as of December 2007. However, the Board notes that the claims file includes an April 1984 letter from SSA to the Veteran notifying him of eligibility for benefits, effective January 1983. While the Board acknowledges that the April 1984 letter does not specifically elucidate the basis of the Veteran's benefit eligibility, the letter clearly indicates that the basis of the award was due to disability. Moreover, confirmation that the Veteran received benefits from SSA on some basis from January 1983 certainly lends a measure of credence to his assertion that the benefit award was related to his seizure disorder. In addition, the Veteran has submitted a copy of "Claimant's Statement, Total Disability" dated in May 1984. This statement was submitted to an insurance company for the purpose of applying for disability benefits. On the first page, the Veteran noted that he had been prevented from engaging in any work, occupation, or business since January 1983, and he noted his last occupation was as a traffic manager. The illness on which he based his claim was identified as "seizures - disorientation, equilibrium problems." The Veteran also noted that he had been found totally disabled by SSA. The second page of the application is a physician's statement completed by Norman Bash, M.D., in May 1984. This indicated that the Veteran had "Seizures with post- ictal disorientation. Grand Mal Seizures." Dr. Bash stated that the Veteran would "never" be able to work again due to this condition. This two-page application is accompanied by a May 1984 letter from an insurance company referencing the Veteran's entitlement to "disability retirement" benefits. The August 2002 VA neuropsychology evaluation, discussed in more detail above, is very favorable to the Veteran's claim that he is unable to obtain or retain gainful employment because of his seizure disorder. In fact, there was such a decline in cognitive functioning at that time, the examiner felt the Veteran needed assistance filing a VA claim because of the verbal memory and executive deficits. Also favorable to the Veteran's claim is a prior adjudication by the RO. In a February 1993 rating decision, the RO granted non- service connected pension benefits to the Veteran, finding that his then non-service connected seizure disorder was 100 percent disabling. The October 2002 letter from the Veteran's treating physician noted ongoing medication for a severely intractable seizure disorder that included approximately one tonic/clonic and two complex partial seizures per month. The Veteran and his wife have consistently reported seizures of symptoms of seizures at least twice per month and oftentimes weekly or more. As a result of these seizures, they have outlined multiple car accidents, multiple falls (including from the back of a truck, through a bus windshield, and down a flight of stairs), an injury to the hand at work, and other difficulties. After one incident, the couple asserts that the Veteran was hospitalized for a week. In that regard, the Board notes that while the Veteran and his wife may not, as laypersons, have the medical expertise to diagnose epilepsy or a seizure disorder, they are competent to report symptoms of a seizure and other related problems experienced, such as a period of hospitalization following such symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This probative medical and lay evidence provides strong evidence in support of an extraschedular rating under 38 C.F.R. § 4.16(b). As to the negative evidence against an extraschedular evaluation for TDIU, the Director of C&P's October 2009 letter opined that the Veteran was not entitled to an extraschedular rating under 38 C.F.R. § 4.16(b). However, the Board does not find this letter to be especially persuasive for the following reasons. First, the opinion failed to adequately address the evidence favorable to assignment of an extraschedular TDIU rating. For example, the opinion failed to discuss the Veteran's and his wife's contentions of the multiple injuries suffered by the Veteran due to falls and other reactions during his seizures, including at least one on-the-job accident. The opinion also failed to discuss, quite notably, the cognitive deficits shown on the August 2002 VA neuropsychology evaluation. Second, the opinion of the Director of C&P was based, in part, on a conclusion that the Veteran retired after 30 years of working with "nothing of record demonstrating or intimating that the veteran's retirement was the result of his service-connected disabilities." This statement is factually incorrect and legally irrelevant. The 1984 application for disability benefits, with an accompanying physician's statement, is clearly evidence that the Veteran left his last position because of his seizure disorder. The opinion by the Director of C&P never addressed this evidence favorable to the Veteran or provided reasons for discounting its probative weight. Regardless, even if the Veteran retired in 1982 for reasons other than his seizure disability, that is legally irrelevant. The law does not require that the Veteran have left his last job because of a service- connected disability; rather, the question is whether he can now retain or obtain gainful employment with his disability. In other words, the status of the Veteran's disability more than 25 years ago has no bearing on whether he can now retain or obtain gainful employment. Finally, the Director's letter failed to reconcile the decision denying an extraschedular TDIU rating with the February 1993 rating decision finding the Veteran's seizure disorder 100 percent disabling for purposes of establishing entitlement to non-service connected pension benefits. As noted in the Board's 2006 Remand, it is disingenuous to have found the seizure disorder totally disabling in 1993, and, furthermore, to have initially denied TDIU by stating that the then non service- connected seizure disorder rendered the Veteran unemployable, but then to assign only a 20 percent rating for the disorder when service connection is granted. There is no medical evidence suggesting the Veteran's condition has improved enough since he was found disabled by VA in 1993 that he can now work. In fact, the August 2002 VA neuropsychology evaluation established significantly impaired cognitive functioning. The opinion of the Director of C&P, like all other evidence, must be analyzed to determine its probative value. In this case, for the reasons given above, the Board must find that the opinion has very little probative value, in light of its failure to address evidence favorable to the Veteran and its conclusory statements that are not in accordance with the evidence of record. The RO never scheduled the Veteran for a C&P Examination to obtain an opinion as to the effect of his service-connected seizure disorder on his ability to be employed. However, the Board is satisfied that the Veteran's service-connected seizure disorder prevents him from securing or following substantially gainful employment, despite his failing to meet the percentage requirements for TDIU. The Board acknowledges that a significant number of the Veteran's seizures are of a minor nature; however, there is also evidence of seizures causing falls down stairs and off a truck, injuries to his hand, vehicle accidents, and even hospitalization. Given this seeming abrupt onset of the Veteran's seizure disorder without sufficient warning to permit the Veteran time to protect himself from the effects of the seizures, the Board finds the seizure disorder does prevent him from securing or following substantially gainful employment. In addition to the physical effects of the seizure disorder, the cognitive deficits shown in 2002 would reasonably prevent him from obtaining a position that requires understanding instructions, remembering what he is told, and dealing with other people. The Board is hard pressed to imagine such a position exists and that if it did, it would provide a substantially gainful income. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that the evidence supports a finding of TDIU on an extraschedular basis. 38 C.F.R. § 4.3. ORDER Entitlement to TDIU is granted on an extraschedular basis, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs