Citation Nr: 1328761 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-24 172A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE From July 20, 2005 to February 8, 2011, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1976 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, inter alia, denied entitlement to a TDIU. The Veteran's case is currently under the jurisdiction of the VA RO in Indianapolis, Indiana. This matter has previously been before the Board, most recently in January 2013, at which time the Board remanded the claim for additional development of the evidence of record. The Board errs as a matter of law when it fails to ensure compliance with remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has been substantial compliance with the remand instructions. Dyment v. West, 13 Vet. App. 141 (1999). In May 2013, the VA Appeals Management Center (AMC) issued a rating decision that granted entitlement to a TDIU effective February 9, 2011. This award does not represent the maximum available benefit with respect to the period before February 9, 2011, and thus the issue of entitlement to a TDIU before that date remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). FINDING OF FACT From July 20, 2005 to February 8, 2011, the evidence of record demonstrates that the Veteran is unemployable based solely on his service-connected disabilities. CONCLUSION OF LAW From July 20, 2005 to February 8, 2011, 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. Although 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 decided herein. 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 to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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). The Veteran's claim of entitlement to a TDIU has been granted, as discussed below. 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); Kent v. Nicholson, 20 Vet. App. 1 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 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 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). Turning to the facts in the instant case, the Board acknowledges that the AMC's May 2013 rating decision granted entitlement to a TDIU as of February 9, 2011. The rating decision assigned that effective date because, it stated, that was when the Veteran first met the above-described schedular criteria for the award of a TDIU. This is incorrect. Instead, since July 20, 2005, the Veteran has been in receipt of a combined 80 percent disability rating 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). More specifically, from July 20, 2005 to February 8, 2011, the Veteran was in receipt of a 70 percent rating for chronic anxiety, a 50 percent rating for migraine headaches, a 10 percent rating for gastroesophageal reflux, and noncompensable ratings for residuals of a left wrist injury and hemorrhoids. Therefore, the Veteran's service-connected disabilities first met the above-described percentage rating standards for a TDIU as of July 20, 2005 (rather than as of February 9, 2011). 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 during the period from July 20, 2005 to February 8, 2011. The Veteran's application for a TDIU was received on July 20, 2005, and the Veteran stated that his service-connected psychiatric condition prevented him from securing or following a substantially gainful occupation. The Veteran indicated that he had last worked full-time on May 20, 2004 as a bicycle assembler for a large retail company. The Veteran stated that he had completed four years of high school. In August 2005, a VA clinician noted that the Veteran was not working, because, the Veteran reported, the Veteran could not be around other people, and he needed a job that did not require the company of other people. The Veteran underwent a general medical examination in February 2006. The Veteran reported that he wanted to "kill his manager" while working for a major retailer, and the Veteran thus could no longer work for that employer. The examiner found that the Veteran's chronic anxiety would be the most significant factor limiting the Veteran's employment. The examiner noted that the Veteran's difficulty getting along well with others, his stress, and his worry over work were debilitating. The examiner further noted that the Veteran did not have any clerical skills. The Veteran underwent a psychiatric examination in April 2006, at which time the Veteran reported that he quit working for a major retailer due to an at-work altercation. The examiner indicated that the Veteran's anxiety contributed to his limited occupational functioning. In October 2006, the Veteran reported that he felt like "killing people" while working for a major retailer. In June 2007, a Social Security Administration (SSA) medical consultant noted that the Veteran had a history of verbal aggression on the job. The medical consultant indicated that the Veteran should "preferably" not work in a highly social environment. In a June 2007 examination of the Veteran's headaches, the examiner did not offer an opinion regarding the Veteran's employability, but the examiner noted that the Veteran had 10 to 12 severe headaches monthly that left him unable to leave the house. In July 2007, the Veteran indicated that he could not "handle the people" at his previous job; as a result, the Veteran felt rage and anger while working. The examiner noted that the Veteran had a pattern of rage when his self-esteem was threatened. In October 2009, the SSA determined that the Veteran had been disabled as a result of, among other non-service-connected disorders, his service-connected migraines and psychiatric condition. The Veteran underwent a VA psychiatric examination in February 2011. The Veteran stated that he did not like to be around other people, and he feared that he would react violently in an employment setting. The examiner opined that the Veteran's psychiatric condition was not significant enough to prevent the Veteran from maintaining gainful employment, though the examiner acknowledged that the Veteran had excessive anxiety and outbursts of anger. The examiner noted that the Veteran was aware that his anger expression was often inappropriate and unjustified. The Veteran underwent an examination of his migraine headaches in February 2011. The examiner noted that the Veteran experienced weekly prostrating attacks of headache pain, with each episode lasting one to two days. Despite noting this symptom, the examiner stated that the Veteran's migraine condition would have no effects on his employment. The Veteran underwent an examination of his wrist condition in February 2011. The examiner noted that the Veteran's condition would have a moderate effect on his ability to engage in physical employment, and a mild effect on his ability to engage in sedentary work. In February 2013, a VA psychiatric examiner indicated that the Veteran was not unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities. While the examiner offered this conclusion, he did not discuss the effects, if any, that the Veteran's service-connected psychiatric disorder would have on his employability. The examiner otherwise simply reiterated the findings of the February 2011 psychiatric examiner. In March 2013, a VA examiner opined that the Veteran's migraine headaches would prevent him from securing and maintaining substantially gainful employment. The examiner noted that the Veteran reported experiencing migraines approximately one to two times weekly, and he indicated that he had to lie down until his symptoms improved. The examiner indicated that most employers would not find these symptoms to be appropriate. If the Veteran's migraine headaches were controlled, the Veteran would most likely be able to secure and maintain substantially gainful employment in sedentary or physical labor. In March 2013, a VA examiner opined that the Veteran's wrist condition would not prevent the Veteran from securing and maintaining substantially gainful employment. The examiner noted, however, that the condition would restrict the Veteran's employment opportunities because the Veteran could not use tools or a keyboard, or engage in repetitive actions involving his wrist. Turning now to an application of the relevant laws to the facts in the instant case, 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 observes that the March 2013 VA examiner opined that the Veteran's headache condition rendered him unemployable. While this opinion does not specifically address the symptoms associated with the time period at issue in this decision (that is, July 20, 2005 to February 8, 2011), the Veteran described similar symptoms during this time as well. For example, while the June 2007 examiner did not offer an opinion regarding the Veteran's employability, the examiner noted that the Veteran had 10 to 12 severe headaches monthly that left him unable to leave the house. The Board finds this headache symptomatology to be substantially similar to the symptomatology that the March 2013 VA examiner found to preclude the Veteran from substantially gainful employment. Even without this opinion suggesting that the Veteran could not work from July 20, 2005 to February 8, 2011, as a result of service-connected disability, the Board observes that the Veteran's work history primarily involves working under the supervision of others as a repair person. As a result of the cumulative restrictions imposed by the above examiners and clinicians, from July 20, 2005 to February 8, 2011, the Veteran would have needed to have found employment that: a) accepted his need to miss work up to 10 to 12 days a month as a result of headache pain that rendered him unable to leave the house; b) did not involve the use of tools, a keyboard, or repetitive wrist actions; c) involved minimal interactions with other people, and d) while meeting the previous criteria, also mitigated the Veteran's "debilitating" stress and worry over work. The Board finds that the cumulative restrictions imposed by the Veteran's examiners and clinicians do not, taken together, create a reasonable possibility of employment for the Veteran when considered in conjunction with his high school education and work experience primarily in bicycle repair. Therefore, the Board finds that the Veteran is entitled to a TDIU as of the date the Veteran first met the schedular criteria for such an award: July 20, 2005. In sum, 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 July 20, 2005 to February 8, 2011. ORDER From July 20, 2005 to February 8, 2011, a TDIU is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs