Citation Nr: 1300136 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-13 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from July 1988 to October 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of this claim has been transferred to the RO in Indianapolis, Indiana. FINDING OF FACT The Veteran meets the schedular criteria for TDIU; the competent and credible evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities prevent her from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record must reflect that circumstances, apart from non-service-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of her service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16(a)(2) (2012). The Veteran is service-connected for bipolar disorder, type II, evaluated as 70 percent disabling; coital urinary incontinence, evaluated as 40 percent disabling; and hypertension, hemorrhoids, hyperpigmented lesion on the urethra and herpes simplex virus, type 2, each evaluated as noncompensable. Her overall disability evaluation is 80 percent. The Veteran is eligible to receive TDIU benefits. See 38 C.F.R. § 4.16(a). For reasons stated immediately below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disabilities render her unable to secure and follow a substantially gainful occupation. The report of a September 2006 VA examination notes the Veteran's history of bipolar disorder with significant outpatient treatment and a three-day inpatient admission for treatment of bipolar disorder complicated by suicidal ideation, increasing agitation and panic attacks. She exhibited symptoms including severe anxiety and an active panic attack, sleep impairment, inappropriate behavior and a waxing/waning episodic mood. While the examiner noted that bipolar disorder does not result in total occupational and social impairment, the examination report does note the Veteran's reported erratic behavior on the job and significant depression as reasons for her unemployment. A November 2008 VA examination report again notes a history of bipolar disorder with additional outpatient treatment. The Veteran was again hospitalized for her bipolar disorder (twice in 2008), presenting with suicidal behavior. She exhibited symptoms of a depressed mood and constricted affect with suicidal and homicidal ideation and obsessional thought content. She reported monthly panic attacks and an inability to maintain minimum personal hygiene. Again, while the VA examiner noted there is no total occupational and social impairment, it was noted that the Veteran's poor concentration, depression and fatigue in addition to episodes of mania are obstacles to her ability to concentrate well and be reliably productive. A third VA examination report, dated September 2009, again notes ongoing treatment for bipolar disorder, and another inpatient admission in 2009 for suicidal behavior and manic episodes. She presented a depressed mood and blunted affect, with paranoid ideation and obsessional thought content and monthly panic attacks. Again, the VA examiner indicated bipolar disorder does not result in total occupational and social impairment, but does note the Veteran's mood fluctuation, depression and poor concentration are obstacles to her ability to be productive and reliable in a work setting. Finally, a fourth VA examination was provided in March 2012. The Veteran presented with symptoms including a depressed mood, anxiety, panic attacks occurring weekly or less often, disturbances of motivation and mood, and a difficulty in adapting to stressful circumstances. The VA examiner again determined the Veteran's service-connected bipolar disorder does not result in total occupational and social impairment, opining that "as long as the Veteran's mood cycles are managed better, and her job provides the right level of stimulation, [she] should be able to work." Other evidence of record includes the Veteran's Compensated Work Therapy (CWT) records which, in August 2009, note that, the Veteran presented with poor hygiene and despite taking her medication as prescribed, she had not demonstrated stability in her mental health or treatment. Notes associated with the work program indicate that the Veteran had difficulty with keeping a schedule due to medical, childcare and personal issues. She was discharged from the program. Additional evidence of record includes VA vocational rehabilitation records which indicate that in February 2009 the Veteran's VA vocational rehabilitation counselor noted that the Veteran was missing days at her CWT program, was using drugs, drinking alcohol, and noncompliant with medication. In September 2009 it was determined that employment was not feasible at the time and her program of training was discontinued effective February 2010. Records from the Social Security Administration indicate that the Veteran was found to be disabled from January 2007 to November 2008 as a result of psychiatric disorders; benefits were thereafter reportedly discontinued due to improvement in the Veteran's condition. Further, records indicate the Veteran was also admitted for inpatient treatment of her bipolar disorder from January to February 2011, and again in 2012. Finally, the record on appeal contains conflicting information regarding the Veteran's educational level. Information of record indicates that the Veteran had at least completed one year of college. Further, she apparently last worked fulltime in January 2007. See February 2007 letter from CLIU 21. Based on the evidence of record, the Board finds that a TDIU is warranted in this case. The Veteran meets the schedular criteria for a TDIU throughout the appeal period, and the overall weight of the evidence is at least in equipoise as to whether the Veteran's service-connected bipolar disorder, in addition to the other service-connected disabilities, precludes her from performing the physical and mental acts required by employment. Even though each of the VA examiners found that the Veteran's bipolar disorder does not result in total occupational and social impairment, the Board again notes the Veteran has received inpatient care for her service-connected disability a number of times during the appeal period. Further, records indicate at least occasional hygiene issues, and severe mood swings. Finally, with respect to the March 2012 VA examiner's opinion that she should be able to work with better management of her mood cycles, the Board finds it reasonable to interpret this statement as, given her symptomatology as it now stands, the Veteran is currently unable to work. "A Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. In light of the evidence discussed above, and resolving all doubt in favor of the Veteran, the Board finds entitlement to a TDIU is warranted in the instant case. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs