Citation Nr: 1305484 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 08-39 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 28, 2012. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1968 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, a Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. In August 2011, the case was remanded for additional development. In September 2012, the Veteran was awarded a 100 percent schedular rating for his post-traumatic stress disorder (PTSD), effective from August 28, 2012. The claim is characterized to reflect the remaining benefit sought. The Board notes a procedural error in the October 2012 supplemental statement of the case (SSOC) in that it did not address the matter of entitlement to a TDIU rating prior to August 28, 2012 (the effective date for the 100 percent schedular rating), but instead indicated the matter of a TDIU rating was moot (and nonetheless returned the matter to the Board). Further, the SSOC was mailed to an incorrect address (and was returned as undeliverable), in essence excluding the Veteran from further appellate process. However, in light of the determination below, the Board finds the errors harmless (and not requiring corrective action). FINDING OF FACT Throughout the appeal period, prior to August 28, 2012, the Veteran's service-connected disabilities (PTSD, rated 70 percent, and residuals of left foot gunshot wound with traumatic arthritis, rated 30 percent, and rated 80 percent combined) are reasonably shown to have been of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW Throughout the appeal period (prior to August 28, 2012) the schedular criteria for TDIU are met; and a TDIU rating is warranted throughout. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more and 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. 38 C.F.R. § 4.16(a). In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In his December 15, 2006 claim for a TDIU rating, the Veteran alleged that since December 7, 2005 he was unable to maintain substantially gainful employment due to his service-connected PTSD and left foot gunshot wound residuals. Throughout from the December 15, 2006 date of claim until August 28, 2012 (the effective date for a schedular rating of 100 percent for PTSD), his service-connected disabilities have been PTSD, rated 70 percent, and residuals of a left foot gunshot wound with traumatic arthritis, rated 30 percent (rated 80 percent combined). The schedular (and combined) ratings meet the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a). Consequently, the remaining question before the Board is whether or not the Veteran is rendered incapable of participating in substantially gainful employment due to the service-connected disabilities. There are conflicting medical opinions in this matter. A May 2006 VA PTSD examiner opined that the Veteran's psychiatric problems do not prevent him from getting employment; a December 2007 VA PTSD examiner opined that the Veteran would be deemed psychologically able to maintain employment if not for his physical problems (the examination report notes a history of (nonservice-connected) shoulder and knee surgery/problems); and a January 2008 VA feet examiner opined that the left foot disability affects only physical employment (with no effect on sedentary employment). In contrast, a February 2008 psychological evaluation in connection with the Veteran's claim for Social Security Administration (SSA) benefits found "the examinee related appropriately to the psychologist, but he may have some difficulty interacting with his enlarged social experience because of his panic attacks" and "would have difficulty with the stress and pressure of daily work activity because of his panic attacks and pain." (The Veteran was awarded SSA benefits for muscle, ligament and fascia and anxiety related disorders.) An August 2009 treatment report by the Veteran's VA psychologist notes that he is unemployable and explains that "in the more demanding environment of the work world, his anxiety and chronic pain will interfere, as before, with the persistent attention and energy that employment requires." Similarly, in a June 2011 statement, the same VA psychologist opined that the Veteran "will not sustain employment due to his psychiatric condition and to his medical problems. He should be viewed as unemployable." On August 12, 2012 VA PTSD examination, the Veteran was found to have "[t]otal occupational and social impairment." [Based on this finding, the September 2012 rating decision assigned an increased, 100 percent, rating from August 12, 2012 for the Veteran's service-connected PTSD.] Unfortunately, the examiner did not opine as to the combined impact of the Veteran's service connected disabilities on his ability to secure or maintain substantially gainful employment during the appeal period. Hence, the AMC sought an "independent medical opinion". In an October 2012 medical opinion, the VA-designated provider, a podiatrist, reviewed the Veteran's medical history and stated that she was in "full agreeement" with the Veteran's VA psychologist (who provided the August 2009 and June 2011 statements). The provider noted that the Veteran had not been employed since 2005, as "he lacked the ability to focus and perform his trade within the bounds of safety to himself and other[s] because of his inability to concentrate." The podiatrist opined that the Veteran "be deemed unemployable because of his total occupational and social impairments resulting from his high level of PTSD." The podiatrist also opined that the Veteran's "clinical manifestations of PTSD warrant him LESS LIKELY THAN NOT to be able to return to his profession. Furthermore, his inability to concentrate and high level of anxiety deem him unable to acquire the skills necessary for him to return to the workforce. Therefore, [the Veteran] is generally unemployable and specifically unemployable as an electrician." [Emphasis in original]. While the Board may have some question about the competence of a podiatrist to offer an opinion about primarily psychiatric disability, the Board does not find reason to reject the opinion of a VA-designated expert as invalid. The opinion is accompanied by a detailed explanation of rationale and reflects review of the record. It is the most complete (and therefore probative) evidence in the matter, and is persuasive. As the podiatrist/designated medical expert essentially concluded that the Veteran last worked in 2005 and is unable to return to the workforce because of his "high level of PTSD", the Board finds that it is reasonably shown that throughout the appeal period (from the December 15, 2006 date of claim until August 28, 2012), the Veteran was incapable of maintaining any regular substantially gainful employment because of service-connected disability (ies). With resolution of any remaining reasonable doubt in his favor, the Board concludes that a TDIU rating is warranted throughout prior to August 28, 2012. ORDER The appeal seeking a TDIU rating throughout prior to August 28, 2012, is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs