Citation Nr: 1332832 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 00-15 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 19, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision by a VARO. The Board's February 2011 decision remanded the additional issue of TDIU as part of the increased rating claim for posttraumatic stress disorder (PTSD). Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the RO had already granted TDIU via an October 2010 rating decision, which was not in the claims file at the time of the Board's February 2011 decision. In the October 2010 rating decision, the RO granted TDIU effective from April 29, 2010. A March 2013 rating decision granted a 100 percent rating for the Veteran's PTSD effective October 30, 2008 (the date of the VA examination showing that the criteria for a 100 percent rating were met). The matter of TDIU from that date thereby became moot. However, since the increased rating claim (of which the TDIU issue was a part per Rice) was prior to this date, the RO's grant of TDIU was only a partial grant of that benefit, and the matter of entitlement to TDIU prior to October 30, 2008 was remanded in July 2013 for further development. A subsequent July 2013 rating decision granted the Veteran an earlier effective date of January 19, 2004 for the award of TDIU. It is clear from statements from the Veteran that he is seeking TDIU back to July 2003. Therefore, the remaining question before the Board is whether TDIU was warranted prior to January 19, 2004. FINDING OF FACT The Veteran's service connected disabilities as of July 7, 2003 (including pseudoseizures, rated 40 percent; PTSD, then rated 30 percent; coronary artery disease, then rated 10 percent; bilateral hearing loss, rated 10 percent; tinnitus, rated 10 percent; left lower leg scar, then rated 0 percent; and left arm scar, rated 0 percent) were rated 70 percent combined, and have since July 7, 2003 been reasonably shown to render him unable to maintain substantially gainful employment. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met and a TDIU rating is warranted from the earlier effective date of July 7, 2003. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS 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). Inasmuch as this decision grants the benefit sought there is no reason to belabor the impact of the VCAA in the matter; any notice defect or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system) with an emphasis on the evidence relevant to this appeal. 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 the 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). 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. VA's General Counsel has 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. The Veteran contends that he has been unable to maintain substantially gainful employment since July 2003 due to his service-connected disabilities, which at that time included pseudoseizures, rated 40 percent; PTSD, rated 30 percent; coronary artery disease, rated 10 percent; bilateral hearing loss, rated 10 percent; tinnitus, rated 10 percent; left lower leg scar, rated 0 percent; and left arm scar, rated 0 percent. The combined rating as of July 2003 is 70 percent. The schedular ratings therefore met the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a) since that time. He has already been granted a TDIU rating effective January 19, 2004, yet he contends that he merits such rating effective July 2003. Consequently, the only question remaining is whether due to the service-connected disabilities he was unable to engage in a substantially gainful occupation prior to January 19, 2004. The record indicates that the Veteran last worked in July 2003, for Emerson Tool Company as a maintenance employee. In a statement dated June 16, 2003, the Veteran reported that he was still employed at Emerson Tool Company, as his employment had been extended until all tools and equipment were shipped out of the plant. The Veteran was able to maintain employment (with accommodations made for his disability) until his plant closed down in July 2003. In a July 9, 2003 letter, the plant maintenance superintendent of Emerson Professional Tools, C.B., stated that the Veteran was permanently laid off from their employment on July 3, 2003 as a result of a total plant closing and transfer of all operations overseas. C.B. noted that the Veteran had been employed by the company for many years yet had become increasingly limited in the job assignments he could be given within the last few years of his employment, as he had exhibited deterioration of visual acuity, blank staring spells that mimicked lapses in his recognition of his surroundings, and panic reactions if approached suddenly from a blind side. Because of these conditions and others, the company made accommodations to the Veteran's job assignments to keep him in safe assignments where he would not be injured. For example, he could not be given assignments that involved heights, electrical work, and working with live machinery for trouble shooting and repair. The Veteran had been limited to simpler safe job assignments where he had minimal opportunity to put himself in harm's way and, most of the time, he was assigned as a helper to another maintenance employee who would take on the brunt of the job responsibility. The superintendent as well as the industrial relations manager of Emerson Professional Tools (who co-signed the letter) opined that the Veteran would not be able to function successfully in most manufacturing settings, including machine operation, press operation, and assembly, as his loss of attention and sight problems, as well as other limitations, would force significant accommodations for him in any environment. A September 2005 Social Security Administration decision found the Veteran to be entitled to disability benefits as of July 7, 2003 due to impairments including pseudoseizure disorder, coronary artery disease, right eye blindness, PTSD, major depressive disorder, and conversion disorder. He was found to be unable to perform the requirements of his past relevant work and his skills were determined to be not transferable. On a June 2010 Application for Increased Compensation Based on Unemployability, the Veteran reported that he became too disabled to work as of July 7, 2003, which was also the date he last worked full time, as an assistant to a maintenance electrician for Emerson Tool Company. The Veteran has also submitted several lay statements regarding the nature of his symptoms. For example, a June 1997 statement from S.S. (a co-worker) stated that he must make his presence known before approaching the Veteran in order to prevent a dangerous interaction by startling him. A September 2004 correspondence from B.F. (another former co-worker) stated that the Veteran would be very jumpy and nervous, he would become startled easily, and he would become entranced. The Board finds all the lay evidence to be both competent and credible. The evidence reflects that the Veteran's career consisted entirely of employment in physical labor, and largely for Emerson Tool Company. The record does not reflect any work experience or training in an employment that is not physically demanding, and he has indicated he does not have any such experience or training. In summary, the Board finds that the evidence of record reasonably demonstrates that the Veteran's service connected disabilities are of such nature and severity as to have precluded employment in any occupation consistent with his education and occupational experience since July 7, 2003. Consequently, a TDIU rating is warranted from that date. ORDER A TDIU rating is warranted from the earlier effective date of July 7, 2003. The appeal is granted to this extent, subject to the regulations governing payment of monetary awards. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs