Citation Nr: 1307385 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-50 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. On and before September 5, 2007, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) 2. From September 6, 2007 to May 2, 2012, entitlement to a TDIU. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1958 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the benefit sought on appeal. The issue of entitlement to a TDIU on and before September 5, 2007 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDING OF FACT From September 6, 2007 to May 2, 2012, the evidence of record demonstrates that the Veteran is unemployable based solely on his service-connected disabilities. CONCLUSION OF LAW From September 6, 2007 to May 2, 2012, the criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Claims Assistance Act of 2000 (VCAA) This decision grants the Veteran's claim of entitlement to a TDIU from September 6, 2007 to May 2, 2012. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). TDIU The Veteran claims that he is unemployable due solely to his service-connected disabilities. The Board's decision grants the Veteran a TDIU from September 6, 2007 to May 2, 2012. As an initial matter, the Board will explain the significance of each of these dates. With respect to the first date, as will be discussed in further detail below, the Veteran first met the schedular requirements for an award of a TDIU on September 6, 2007. With respect to the second date, the Veteran is in receipt of a 100 percent schedular disability rating effective May 3, 2012. A TDIU cannot be awarded to a veteran who is already in receipt of a 100 percent schedular rating. See 38 C.F.R. § 4.16(a) (2012) (stating that a TDIU may be awarded when "the schedular rating is less than total"). Accordingly, the Board's decision considers whether the award of a TDIU is appropriate from September 6, 2007 (the first day that the Veteran met the schedular requirements for an award of a TDIU) to May 2, 2012 (the date preceding the effective date of the Veteran's 100 percent schedular evaluation). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If, as in the instant case, there are two or more such disabilities, there must 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) (2012). For the purpose of determining whether one 40 percent disability rating exists, the Board notes that disabilities resulting from a common etiology or a single accident may be considered to be one disability. See id. Turning to the facts in the instant case, from September 6, 2007 to March 24, 2008, the Veteran's combined disability rating was 70 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012). The Board acknowledges that the Veteran did not have a single disability rated as 40 percent disabling or greater during this time. The Board observes, however, that during this time, the Veteran was service connected (in pertinent part) for posttraumatic stress disorder (PTSD) at 30 percent disabling, bilateral hearing loss at 20 percent disabling, and tinnitus at 10 percent disabling. From March 25, 2008 to May 28, 2008, the Veteran's combined disability rating was 80 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012). The Board acknowledges that the Veteran did not have a single disability rated as 40 percent disabling or greater during this time. The Board observes, however, that during this time, the Veteran was service connected (in pertinent part) for PTSD at 30 percent disabling, bilateral hearing loss at 20 percent disabling, and tinnitus at 10 percent disabling. From May 29, 2008 to May 2, 2012, the Veteran's combined disability rating was 80 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012). The Board acknowledges that the Veteran did not have a single disability rated as 40 percent disabling or greater during this time. The Board observes, however, that during this time, the Veteran was service-connected (in pertinent part) for PTSD at 30 percent disabling, bilateral hearing loss at 30 percent disabling, and tinnitus at 10 percent disabling. The Board notes that the September 2007 rating decision granting service connection for PTSD did so on the basis of the Veteran's accounts of his experiences in combat conditions. The Veteran was granted service connection for hearing loss and tinnitus on the basis of his experience in the artillery. The Board finds that these conditions share a common etiology and combine to produce a single disability that is rated as greater than 40 percent disabling during each of the above time periods. Therefore, the Veteran's service-connected disabilities meet the above-described percentage rating standards for a TDIU. See 38 C.F.R. § 4.16(a) (2012). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. Turning to the evidence in the instant case, the evidence of record indicates that the Veteran has a bachelor's degree in management. A September 2007 treatment record from one of the Veteran's treating physicians, Dr. R.E.M., stated that the Veteran "has been unemployed for well over [two] years due to progressively worsening PTSD." A December 2007 psychiatric examination report noted that the Veteran was currently retired but had previously been able to hold several stable jobs. The Veteran reported that he had retired in July 2005 from a position as a steel plate buyer for a manufacturing company. Before that, the Veteran worked for two and a half years at a company that sold navigation equipment, he worked for three or four years as a real estate agent, he worked for three years as a vice president and co-owner of an aircraft parts company, and he worked for four years as a general manager for an aircraft parts sale company. The Veteran reported that he had a stable job history and he denied experiencing any significant job impairment while he was employed. The examiner did not opine regarding the Veteran's current ability to obtain substantially gainful employment. The Veteran's May 2008 Application for Increased Compensation Based on Unemployability indicated that the Veteran had not worked full-time since 2006 due to his service-connected disabilities of PTSD and diabetes. The Veteran stated that he left his last job due to his disabilities. He reported a college education. An August 2008 statement from one of the Veteran's VA treating physicians, Dr. R.E.M., opined that the Veteran's severe PTSD, combined with the Veteran's other service-connected conditions, rendered him unemployable in any capacity. The physician further noted that the Veteran would not be employable in the foreseeable future because his conditions were chronic and permanent. An August 2008 treatment record from Dr. R.E.M. indicated that the Veteran was "fairly stable" on his current medications, but he was "by no means able to work in any gainful capacity due to his PTSD and medical problems." An October 2008 statement from the Veteran's employer from July 1999 to July 2005 indicated that the Veteran had worked as a buyer, and that he last worked on July 29, 2005. The employer responded "NA" to the question asking how much time the Veteran had lost from work due to his disability during the 12 months preceding his last date of employment. The employer also responded "NA" to the question asking if the employer made any concessions to the Veteran by reason of age or disability. A November 2008 VA psychiatric examination indicated that the Veteran was last employed in 2005 at which time he worked as a purchaser of steel products. The examiner noted that the Veteran was able to sustain employment when he was working. The examiner observed that the Veteran had minor and infrequent occurrences of distractibility that did not negatively impact his work performance. The Veteran engaged in occasional verbal altercations with supervisors, and the Veteran retired earlier than he had planned to after a verbal altercation with the vice president of his company. The examiner indicated that it appeared that the Veteran was not completely without the ability to sustain employment as it related to his PTSD symptoms. The Veteran would, however, likely need to be restricted to simple, repetitive tasks in a low-stress environment with minimal interaction with supervisors. A December 2008 VA examination noted that the Veteran reported that he had been unable to perform the physical duties of his job due to leg pain and problems with his PTSD. The examiner opined that the Veteran's service-connected diabetes would have no significant effects on his occupation, and that it "should not cause any problems with employability." The examiner opined that the Veteran's service-connected foot condition would have significant effects on his occupation, in the form of decreased mobility, lack of stamina, weakness or fatigue, and pain. The examiner opined that the Veteran's service-connected spine condition would have significant effects on his occupation, in the form of decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, and pain. The examiner opined that the Veteran's service-connected duodenal ulcer would have no significant effects on the Veteran's usual occupation. In September 2009, the Veteran's treating chiropractor, M.G.W., indicated that he provided treatment for the Veteran's service-connected neck, back, and leg pain. M.G.W. indicated that the Veteran's condition kept him from being able to stand, sit, or walk for extended periods of time. M.G.W. stated that the Veteran's condition is chronic, progressive, and he indicated that the prognosis for the Veteran's employability was "poor." A February 2011 VA examination indicated that the Veteran was currently unemployed, and that he had retired in July 2005 because he was eligible by age or the duration of his work. The examiner opined that the Veteran's service-connected foot condition would cause pain after prolonged walking or standing. The examiner indicated that the Veteran's service-connected joint pain (other than spine pain) would have significant effects on the Veteran's occupation in the form of inappropriate behavior, poor social interactions, difficulty following instructions, decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, and decreased strength. The Veteran would need to be assigned different work duties as a result of these limitations. The examiner indicated that the Veteran's service-connected spine pain would result in the Veteran having to be assigned different duties, and it would cause the Veteran to experience decreased concentration, difficulty following instructions, decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength, and pain. A November 2011 addendum to the Veteran's hearing loss examination indicated that the Veteran's hearing loss would have a negative impact on his ability to understand speech. Employment that required conversation and the ability to hear speech without error would be very challenging. With proper amplification, however, the disability of hearing impairment alone would not render the Veteran unemployable. In November 2011, the Veteran's February 2011 examiner opined that the Veteran would likely be unsuitable for physical employment due to his lumbar spine and bilateral knee condition. The examiner opined that these conditions would not affect the Veteran's ability to gain or maintain sedentary work. In November 2011, a VA psychologist reviewed the Veteran's claims file. While the examiner indicated that a review of the claims file occurred, the examiner did not address statements from Dr. R.E.M. indicating that the Veteran was unemployable as a result of his PTSD. The examiner stated that if the Veteran attempted to work, his PTSD would likely impair his ability to maintain effective work relationships, manage stressful situations or changes in his work routine. The examiner noted that the Veteran had problems with irritability and anger. The examiner noted that the Veteran appeared to maintain concentration and memory sufficient to engage in at least simple and routine work tasks. The Veteran's PTSD symptoms similarly impacted his ability to engage in physical or sedentary employment. The examiner opined that the Veteran retained an ability to work as it related solely to his PTSD symptoms; the Veteran would, however, need to be restricted to simple, repetitive tasks in a low-stress environment with minimal interaction with supervisors. In May 2012, a VA examiner opined that the Veteran's now service-connected peripheral neuropathy affected his ability to work. As an initial matter, the Board observes that while the record contains a number of opinions addressing the effect of each of the Veteran's individual disabilities on his ability to obtain and maintain substantially gainful employment, the Veteran has not received an examination addressing the cumulative effects of all of the Veteran's service-connected disabilities together. Regardless, the Board finds that even without such an examination, the totality of the available evidence indicates that the Veteran's disabilities together render him unemployable during the period under consideration. The Board notes that one of the Veteran's treating physicians, Dr. R.E.M., stated several times, including in September 2007 and August 2008, that the Veteran was unemployable solely due to his PTSD. The Board observes that this doctor had an ongoing therapeutic relationship with the Veteran, and the Board has no reason to doubt the credibility of Dr. R.E.M.'s conclusion. While subsequent VA psychiatric examinations arrived at a different conclusion regarding the Veteran's employability, none of these examiners appear to have considered or addressed the opinions of Dr. R.E.M. The Veteran's treating chiropractor also opined that the Veteran was not employable as a result of his disabilities. Furthermore, even without these opinions indicating that the Veteran could not work as a result of service-connected disability, the Board observes that the Veteran's work history primarily involves positions that involve a great deal of communication and coordination with other individuals. The Veteran worked as a steel plate purchaser before his retirement in July 2005. The Veteran worked in sales before that position, as a real estate agent before that position. The Board observes that a number of the examiners who have opined that the Veteran is employable have placed significant restrictions on the type of work that the Veteran could reasonably expect to obtain. For example, the Veteran's November 2008 examiner and November 2011 psychiatric examiner indicated that the Veteran would need to be restricted to a position with simple, repetitive tasks in a low-stress environment with minimal interaction with supervisors. The Veteran's February 2011 examiners listed a number of occupational effects associated with the Veteran's disabilities, such as inappropriate behavior, poor social interactions, and difficulty following instructions; the Veteran would need to be assigned tasks that avoided these occupational effects. In November 2011, it was noted that employment that required conversation and the ability to hear speech without error would be "very challenging." Taken cumulatively, the Veteran would need to find a job that did not require him to hear accurately and consistently, that involved simple, repetitive tasks in a low-stress environment, that provided for minimal interaction with supervisors, and that readily allowed the Veteran to switch to other tasks when he exhibited symptoms such as inappropriate behavior and difficulty following instructions. The Board finds that the cumulative restrictions imposed by each of these examiners do not, taken together, create a reasonable possibility of employment for the Veteran when considered in conjunction with his previous work experience in purchasing and sales and education level. Therefore, affording the Veteran with the full benefit-of-the-doubt, the Board finds that the Veteran was unemployable due solely to his service-connected disabilities from September 6, 2007 to May 2, 2012. ORDER From September 6, 2007 to May 2, 2012, a TDIU is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND The Board finds that additional development is warranted with respect to the Veteran's claim of entitlement to a TDIU on and before September 5, 2007. For a schedular award of a TDIU, if the veteran has two or more disabilities, at least one disability must be rated at 40 percent or more and additional disabilities must bring the veteran's combined disability rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). When these percentage requirements are not met, however, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background, including his employment and educational history. See 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). On and before September 5, 2007, the Veteran's combined rating was less than 70 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012). The Veteran therefore does not meet the percentage requirements for a schedular award of TDIU on and before September 5, 2007. As noted above, failure to satisfy these percentage standards, however, is not an absolute bar to a grant of a TDIU. If the record demonstrates that the Veteran is unemployable by reason of service-connected disabilities, but he fails to meet the percentage standards enumerated above, the case must be submitted to the Director of the VA Compensation and Pension Service for extraschedular consideration. See 38 C.F.R. § 4.16(b) (2012). Throughout the current appeal, the Veteran has contended that his service-connected disabilities have resulted in his unemployability. The competent evidence of record indicates that the Veteran last worked in July 2005 as a steel purchaser. Evidence from September 2007 indicated that the Veteran had been unemployed since July 2005 as a result of his service-connected PTSD. The Veteran has consistently stated that he retired following a verbal altercation with one of his supervisors; irritability has been a symptom of the Veteran's PTSD throughout the period on appeal. Based upon the foregoing, the Board finds that evidence in this case suggests that the Veteran may have stopped working in 2005 due to his service-connected disabilities. As a result, a referral of the total rating claim to the Director of the VA Compensation and Pension Service for extra-schedular consideration is warranted. The authority to assign extra-schedular ratings has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and provide him with the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on the Veteran's response, attempt to procure copies of all records that have not been previously obtained from identified treatment sources. Ensure that all records of which the RO has notice, including all pertinent VA treatment records, have been obtained and either associated with the Veteran's claims file or his Virtual VA e-folder. 2. Schedule the Veteran for an appropriate examination to evaluate the effects of his service-connected disabilities on his ability to obtain substantially gainful employment on and before September 5, 2007. The examination should be conducted by a person who is qualified to conduct such an examination and offer an opinion regarding the Veteran's ability to secure and follow gainful employment. The examiner should be provided with the claims file for review in conjunction with this examination and should indicate on the examination report that such a review was completed. Specifically, the examiner is requested to offer an opinion as to whether the Veteran's service-connected disabilities are so severe that they precluded the Veteran from securing and following substantially gainful employment on and before September 5, 2007. This opinion must consider evidence of record stating that the Veteran is unemployable as a result of his service-connected disabilities, including the September 2007 and August 2008 statements of Dr. R.E.M., and the September 2009 statement of M.G.W. The examiner should not base this opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. All opinions are to be accompanied by a clear rationale consistent with the evidence of record. 3. After all development has been conducted, refer the claim to the appropriate department officials under 38 C.F.R. § 4.16(b) for extraschedular consideration with a written decision on this matter which explains the reasons and bases for the conclusion reached. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs