Citation Nr: 1316796 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 06-00 525 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1981. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Pittsburgh, Pennsylvania. It was remanded by the Board for additional development in December 2008, November 2009, September 2010, and August 2012. The case has now been returned to the Board. The Veteran and his wife testified at a March 2010 hearing before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. The Veteran is currently service connected for an acquired psychiatric disorder, rated 50 percent disabling until April 27, 2012 and 70 percent disabling thereafter; a seizure disorder rated 20 percent disabling; and hypertension, rated noncompensable. From December 30, 2004, his combined disability rating was 60 percent and 80 percent thereafter. 2. Giving the benefit of the doubt to the Veteran, it is at least as likely as not that his service connected disabilities alone preclude gainful employment. CONCLUSION OF LAW Effective from December 30, 2004, the criteria for TDIU were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claims is required at this time. TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). In this case, the Veteran meets the schedular criteria for TDIU since, pursuant to 38 C.F.R. § 4.16(a)(3) his seizure disorder and his psychiatric disorder are considered one disability for purposes of applying the schedular criteria for TDIU. Additionally, beginning April 27, 2012, his 70 percent rating for his psychiatric disorder independently met the schedular criteria for TDIU. When a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The sole fact that a Veteran 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 and keep employment. Rather, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. To make this determination, the Veteran's level of education and previous work experience may be considered, but not his age or any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court of Veterans Appeals (Court) observed that the regulations governing the award of benefits for individual employability are "apparently conflicting as to whether an objective ('average person') or subjective ('the veteran') standard applies in determining 'unemployability' in a particular case." Id at 167. The VA General Counsel addressed the Court's concern in a precedential opinion, concluding that Veterans who are unable to secure and follow any substantially gainful occupation as the result of their service-connected disabilities, viewed in light of their individual circumstances, but without regard to age, should be rated totally disabled without regard to whether an average person would be rendered unemployable by the circumstances. Further, the General Counsel clarified that the term 'unemployability' is synonymous with 'inability to secure and follow a substantially gainful occupation.' VAOGCPREC 75-91. Additionally, as observed by the Court in Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994), a claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). 'Substantially gainful employment' is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 38 C.F.R. § 4.16(a) states that "[m]arginal employment shall not be considered substantially gainful employment." The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore, 1 Vet. App. at 359 (citing Timmerman, supra at 442). The Veteran was approved for Supplemental Security Income benefits on the basis of his seizure disorder and an anxiety disorder. Benefits were recently discontinued because the Veteran exceeded the income requirements. In the context of his application for Social Security Administration (SSA) benefits, his doctor submitted a form indicating that the Veteran was permanently disabled by bipolar disorder, depression, anxiety, posttraumatic stress disorder, seizure disorder, excessive daytime sleepiness, and memory loss. In August 2010 a psychological assessment was conducted in conjunction with his application for SSA benefits. The examiner assessed that the Veteran was 70 percent impaired in carrying out activities of daily living, 80 percent impaired in social functioning, and 60 percent impaired in concentration, persistence, and pace. He was moderately impaired in his ability to understand and remember short, simple instructions and to carry out such instructions, and markedly impaired in his ability to understand and remember detailed instructions, carry out detailed instructions, or make judgments on simple work related decisions. He was slightly impaired in his ability to interact with the public, markedly impaired in his ability to interact with supervisors and coworkers, and extremely impaired in responding appropriately to work pressure and responding appropriately to work changes. The impairments were caused by bipolar disorder, PTSD, amnesic disorder, and anxiety. This evaluation therefore indicated that the Veteran would have difficulty in most employment settings, especially due to his inability to appropriately interact with others or respond appropriately to work pressures or changes. In conjunction with a loan discharge application in 2005, the Veteran's physician opined that the Veteran was totally disabled by paresthesias, for which he is not service connected. In March 2005 the Veteran's physician wrote that the Veteran was unemployable due to "medical and mental problems." In October 2005, the Veteran's physician wrote that the Veteran was unemployable due to his seizure disorder and "other medical problems." In a letter received in November 2005, a physician's assistant wrote that the Veteran's seizure disorder made a significant contribution to the Veteran being unemployable. The Veteran was examined by VA in May 2009. At that time, the examiner opined that the Veteran's seizure disorder made him unemployable because of the issue of breakthrough seizures causing numerous losses of his driver's license, his age, and the stigma associated with seizure disorders. In April 2010 the Veteran's physician opined that the Veteran was unable to work due to his seizures. In April 2012 a VA examiner opined that the Veteran had total occupational and social impairment due to his various mental disorders. In an October 2012 report, a second VA examiner opined that the Veteran had total occupational and social impairment due to his mental disorder. However, the examiner opined that general anxiety disorder alone did not necessarily cause work impairment. Thus, the examination was self-contradictory. In an October 2012 report of a general medical examination, a VA examiner opined that the Veteran's seizure disorder was largely controlled by medication and that the Veteran's hypertension and seizure disorder did not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. Viewing the totality of the evidence in the light most favorable to the Veteran, it is at least as likely as not that the Veteran's service connected disabilities prevent him from engaging in substantially gainful employment. While the October 2012 VA examiner found that the Veteran's seizures were well controlled, the May 2009 examiner noted that there was still a problem with breakthrough seizures, and the Veteran's private physician has consistently maintained that the Veteran is unable to work in large part due to his seizure disorder. Additionally, even if the seizure disorder was well controlled at the time of the October 2012 VA general medical evaluation, previous medical records and examinations in 2005 and 2010 indicated that his seizure disorder prevented his employment. Additionally, VA psychiatric examinations in April 2012 and October 2012 indicated that the Veteran's anxiety disorder caused total occupational and social impairment. While the October 2012 examiner also indicated that the Veteran's anxiety disorder alone did not necessarily preclude employment, this opinion was contradicted by his finding that there was total occupational and social impairment, therefore it has little evidentiary value. Moreover, the finding of total occupational and social impairment at the October 2012 examination was consistent with the results of the April 2012 examination. The benefit of the doubt has been resolved in favor of the Veteran and the Board finds it is at least as likely as not that the Veteran's service connected disabilities alone prevent substantially gainful employment ORDER TDIU is granted effective from December 30, 2004. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs