Citation Nr: 1307982 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-31 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to November 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2011, the Veteran and her spouse testified via videoconference at a hearing before the undersigned Veterans Law Judge. In October 2009, the Veteran and her spouse testified at a hearing before a Decision Review Officer. Transcripts of both hearings are associated with the claims file. In July 2011, the Veteran submitted a statement in which she claimed entitlement to an increased rating for her service-connected psychiatric disability and entitlement to service connection on a secondary basis for newly diagnosed autoimmune diseases due to the risk associated with their treatment to her service-connected idiopathic thrombocytopenic purpura. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service connected idiopathic thrombocytopenic purpura with splenectomy, adjustment disorder with depression, and disfiguring and painful abdominal scars are disabilities resulting from a common etiology and have a combined rating for compensation purposes of 60 percent. 2. The Veteran's service connected disability renders her unable to follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset the Board notes that pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board here grants the requested benefit, any failure on VA's part to meet these duties is harmless error. Therefore no further discussion as to these duties is necessary. VA may assign TDIU 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 service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). TDIU may be assigned on a schedular basis under § 4.16(a) or on an extraschedular basis under § 4.16(b). Id. The schedular basis requires that certain percentage requirements are met. That is, if the Veteran has one service-connected disability, it must be rated at 60 percent or greater and if the Veteran has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident are to be considered one disability for the purpose of satisfying the 60 percent criterion or the 40 percent criterion. Id. If the evidence preponderates in the Veteran's favor as to all elements, or is in equipoise, then the benefit must be granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102, 4.3 (2012). Service connection has been established for the following disabilities with the associated ratings: Idiopathic thrombocytopenic purpura with splenectomy rated at 30 percent disabling, adjustment disorder with depression rated as 30 percent disabling, and disfiguring and painful abdominal scars rated as 10 percent disabling. Rating decisions issued in June 1986, February 1989, February 1990, and July 1991 show that these disabilities result from a common etiology. This finding is also supported by the service treatment records as well as VA examinations conducted in February 1986, January 1990, and November 2009. A narrative summary associated with the Veteran's service treatment records documents that March 1984 laboratory studies showed markedly decreased platelet count. She was admitted to a U.S. Navy hospital in April 1984 and diagnosed with idiopathic throbocytompenia. She had an abnormal response to steroid treatment which gave rise to a splenectomy pursuant to medical recommendation. Service connection was established for idiopathic thrombocytopenia purpura and for status post splenectomy in a June 1985 rating decision. In the June 1986 rating decision, the RO changed the status post splenectomy description to "splenectomy" and established a separate rating for disfiguring and painful scar resulting from the splenectomy. It also granted service connection for adjustment disorder with depressed mood and stated that the basis of that grant was that the condition was directly due to and proximately the result of the Veteran's thrombocytopenia, splenectomy and the disfiguring, painful scar. Although how these conditions were described and rated has changed over the years, a 60 percent combined evaluation for compensation purposes has been in place since May 1, 1989. The Board thus concludes that these disabilities arise out of a common etiology and therefore the single disability rated 60 percent criterion under 38 C.F.R. § 4.16(a) is met. The question remaining is whether the Veteran is unable to secure and follow a substantially gainful occupation due to her service connected disability. A November 2009 mental disorders examination report documents the Veteran's report that she had lost 25 jobs over the last 20 years. In an employment history section it is noted that the reason the Veteran provided for her unemployment was frequent termination due to medical illness. The examiner also stated that the Veteran did not contend that her unemployment was due to the effects of her mental disorder. In a psychiatric summary section, the examiner stated that that the Veteran did not have total occupation and social impairment due to her mental disorder. However, he stated that her mental disorder did result in deficiencies in work, specifically in the loss of multiple jobs due to absenteeism. The examiner also stated that her psychiatric symptoms and her depressive disorder were related to her medical conditions. He stated that her adjustment disorder had progressed to the diagnosis of a depressive disorder. Although the examiner stated in one section of the report that the Veteran did not report that her employment problems were due to her mental disorder but reported that they were due to her medical problems, that is an inaccurate characterization. She has referred to her medical, or physical, problems in a manner inseparable from her psychiatric disability. During the October 2009 hearing she testified that she left her last job due to the stress of the job and then began to suffer from medical conditions, including a miscarriage. She reported that she was terminated from another position because of sleep problems related to psychiatric treatment. Her reasons for why she could not follow a substantially gainful occupation are summed up in that hearing transcript as fear of coming to work based on contracting diseases that she believes is more likely or more threatening because her spleen has been removed. During the hearing before the undersigned, the Veteran testified that depression resulted in her missing work and ultimately losing jobs. Board Hearing Transcript (T.) at 11. She testified that because she does not have a spleen she becomes fearful of contracting an illness when people around her are ill and this fear leads to her leaving the job. Id. She acknowledged that if she did not have a mental disorder she may react to that perceived threat in a different manner. Id. She also testified that she had recently been granted disability benefits through the Social Security Administration (SSA) based solely on her mental disorder. Id. at 2-3. Following the Board hearing, the Veteran submitted a copy of a February 2011 SSA decision that granted her disability benefits. That decision summarizes evidence that the SSA considered and the decision is based on the Veteran's severe impairment due to bipolar disorder. It is noted that earlier documents from the SSA, located on a compact disc associated with the claims file, show that the SSA denied her claim for disability benefits in July 2009. The medical records found on that compact disc, all of which predate July 2009, do not support a finding that she was unable to follow a substantially gainful occupation. However, the more recent February 2011 SSA decision, although not dispositive for VA purposes, is evidence favorable to a finding that she is unable to follow a substantially gainful occupation solely due to her service-connected disability. The SSA decision along with the Veteran's testimony and the November 2009 examiner's statement that she had deficiencies in work due to psychiatric illness including loss of multiple jobs due to absenteeism are evidence that the Veteran is unable to follow a substantially gainful occupation due to her service-connected disability. Although the VA examiner stated that she did not have totally social and occupational impairment due to her psychiatric disability, that finding is not particularly probative of whether TDIU is warranted for two reasons. First, total social impairment is not a requirement for TDIU. Second, entitlement to TDIU does not require total occupational impairment but rather requires that the individual is unable to secure and follow a substantially gainful occupation. Finally, the bipolar diagnosis is not meaningfully different from the diagnosis assigned for the Veterans service-connected disability as to the determination of whether her service-connected disability renders her unable to follow a substantially gainful occupation. Based on the record and for the reasons just discussed, the Board finds that the preponderance of evidence shows that the Veteran's service-connected disability renders her unable to follow a substantially gainful occupation. As she cannot secure and follow a substantially gainful occupation due to service-connected disability the remaining criterion for TDIU are met and her appeal must be granted. ORDER TDIU is granted subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs