Citation Nr: 1332892	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  09-34 630	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an increased rating for depression, currently rated as 50 percent disabling.

2.  Entitlement to an increased rating for osteoarthritis, right knee, currently rated as 20 percent disabling. 

3.  Entitlement to total disability rating based upon individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel
INTRODUCTION

The Veteran served on active duty from November 1974 to October 1976.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California that denied increased ratings for the Veteran's service-connected depression and right knee disabilities.  During the pendency of the appeal, a higher rating for the Veteran's service connected knee disability was awarded by the Oakland, California RO.  However, the higher rating awarded was not a full grant of benefits, so the matter remains under appeal.

The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In throughout the course of the appeal, the Veteran has alleged that his service-connected disabilities, in particular his depression, render him employable.  Moreover, the Veteran submitted a formal TDIU application in January 2012.  Accordingly, the issue of entitlement to TDIU has been raised. 

The issues of entitlement to an increased rating for depression and entitlement to an increased rating for osteoarthritis of the right knee are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran is service-connected for depression, rated as 50 percent disabling; chronic strain of the thoracolumbar spine, rated as 40 percent disabling; nonmovement and history of laceration, right second toe, rated as 30 percent disabling; spondyloarthroparthy of the cervical spine, rated as 20 percent disabling; right ankle condition, rated as 20 percent disabling; osteoarthritis of the right knee, rated as 20 percent disabling; amputation of the right great toe, rated as 10 percent disabling; and chronic strain of the cervicothoracic and lumbar spines, rated as 10 percent disabling.  His combined service-connected disability evaluation is 90 percent.

2.  Due to his service-connected disabilities, the Veteran is unable to obtain or maintain substantially gainful employment.


CONCLUSION OF LAW

The criteria for entitlement to TDIU are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duty to Notify and Assist

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  With respect to the issues decided, the Board is granting in full the benefit sought on appeal.  As a result, any error committed with respect to either the duty to notify or the duty to assist was harmless.

II. TDIU

      a)  Legal Criteria

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2013).  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a) (2013).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b).  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. 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 it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013).

      
b)  Analysis

The Veteran contends that he is unemployable due to his service-connected disabilities, in particular his depression.  He is currently in receipt of service connection for depression, rated as 50 percent disabling; chronic strain of the thoracolumbar spine, rated as 40 percent disabling; nonmovement and history of laceration, right second toe, rated as 30 percent disabling; spondyloarthroparthy of the cervical spine, rated as 20 percent disabling; right ankle condition, rated as 20 percent disabling; osteoarthritis of the right knee, rated as 20 percent disabling; amputation of the right great toe, rated as 10 percent disabling; and chronic strain of the cervicothoracic and lumbar spines, rated as 10 percent disabling.  His combined service-connected evaluation is 90 percent.  As a result, the Veteran's service-connected disabilities meet the threshold percentage rating standards for a schedular TDIU. 38 C.F.R. § 4.16(a).  

The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities rendered him unemployable.

The record indicates that the Veteran is receiving Social Security Administration disability benefits as of August 2012.

In the Veteran's January 2012 TDIU application, he noted that the last time he worked was in August 2011 for a plumbing company.  The Veteran indicated that he received one year of high school education, and received no additional education or training before he became too disabled to work.  

In a June 2012 letter, a VA psychologist expressed a belief that the Veteran is unemployable as a result of his depression.  The psychologist wrote:

In my opinion, this Veteran's chronic pain from his service connected medical conditions has significantly contributed to his depression.  He reports feeling depressed, hopeless, sleep impairment, anhedonia, low self-esteem, chronic fatigue, and great difficulty concentrating.  In my opinion his depression prevents him from sustaining gainful employment, and I view him as unemployable.

Enclosed with a June 2012 statement, the Veteran wrote that he had developed a club foot, and as a result of his service connected disabilities he is not able to work.  He further alleged that "I am unemployable.  My depression is so bad I feel hopeless.  I do not sleep at night."

In the Veteran's September 2008 Notice of Disagreement he notes that his depression is causing him significant problems and that he was currently employed at a family business.  The Veteran believes he was only retained at work because it was a family owned business.  In his August 2009 Form 9 substantive appeal pertaining to his service connected depression, he states that he "clearly would have total occupational and social impairment if the family business was not available.  I do very little at my [family's] business, and am somewhat useless and a burden to them.  Not considering this, no other employer would hire me with severe depression." 

VA 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 the claim, in which case the claim is denied. In the present case, the Board concludes that entitlement to TDIU is warranted.

Based upon review of the evidence as a whole, the Board finds that the Veteran is unable to secure or maintain any substantially gainful employment due to his service-connected disabilities.  The Veteran is limited by both his depression and his physical disabilities.  The Veteran notes that he is in severe pain as a result of his physical disabilities, making work difficult.  Compounding his difficulties finding or maintaining work is his Major Depressive Disorder, as diagnosed by a VA psychologist.  The Veteran has a background in plumbing and served an apprenticeship with a plumbing company.  However, the Veteran has indicated that he has no other practical job skills or experience.  Even if the Veteran were able to find employment and overcome the pain and difficulties resulting from his physical disabilities, the Board finds that the Veteran's Major Depressive Disorder would make sustaining employment extremely difficult.  As noted in the VA psychologist's letter, the Veteran "reports feeling depressed, hopeless, sleep impairment, anhedonia, low self esteem, chronic fatigue, and great difficulty concentrating."  

Ultimately, the Board finds that preponderance of the evidence establishes that this Veteran, given his occupational history and educational level, is unable to obtain or retain substantially gainful employment due to his depression as other service-connected disabilities.


ORDER

TDIU is granted.


REMAND

I. Increased Rating for Depression

The Veteran's most recent VA examination addressing his depression was in May 2008.  The examiner fully reviewed the claims file and performed an adequate examination.  However, the Board notes that a significant amount of time, over five years, has passed since this last examination.  In the interim, the Veteran has made multiple assertions regarding the severity of his depression and is no longer employed.  In order to adequately rate the Veteran's depression disability and ascertain the currently level of social and occupational impairment resulting from this disability, the Board finds that a new examination is necessary.  

II. Increased Rating for a Right Knee Disability

In October 2008 the Veteran filed a notice of disagreement (NOD) with a July 2008 rating decision denying an increased rating for osteoarthritis of the right knee.  At that time, the Veteran wrote "I also disagree with the continuance of 10% on the right knee, because it is unstable and swells frequently."  As the Veteran has not been provided a statement of the case (SOC) in response to the NOD, a remand is required for the issuance of a SOC on this issue.  See Manlicon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1.  Issue a statement of the case to the Veteran and his representative on the issue of entitlement to an increased rating of osteoarthritis of the right knee.  The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue. 

2.  If, and only if, the Veteran perfects an appeal with respect to his right knee disorder, ensure that any indicated development is completed before the case is returned to the Board.

3.  Send notice to the Veteran requesting that he identify any treatment (both VA and private) that he has received for his depressive disorder since January 2009.  After securing any necessary release, obtain copies of the records identified by the Veteran and associate them with the claims file. 

4.  The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim.

5.  The Veteran should be afforded an examination by a VA examiner with sufficient expertise to determine the severity of the Veteran's service-connected depression. The examiner should review the claims folders before preparing their examination report. 

All indicated tests and diagnostics should be performed, and the results of such tests and diagnostics should be incorporated into the examination report. 

The examiner should fully describe any social and/or occupational impairment resulting from the Veteran's service-connected depression.  In so doing, the examiner should record the current symptoms of the service-connected depression utilizing appropriate examination worksheets and expressing observations in terms conforming to VA's Rating Schedule. See 38 C.F.R. Part IV. The examiner should address the significance, if any, of the various GAF scores contained in the record.

6.  After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand.  If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998).

7.  After undertaking any other development deemed appropriate, the RO will re-adjudicate the issue of entitlement to a higher rating for depression. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs