Citation Nr: 1335756 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-13 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from October 2000 to October 2003, including service in Iraq from February to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT It is reasonably shown that the Veteran's service-connected disabilities preclude her from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to a TDIU rating, which constitutes a complete grant of the benefits sought on appeal as to that claim. Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claim. The Board has reviewed all of the evidence in the 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). The Board will summarize the relevant evidence as appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the claim. A total disability rating may be assigned, 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 the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities consist of the following: variously diagnosed psychiatric disorder, rated 50 percent disabling, effective October 26, 2003; migraine headaches, rated 10 percent disabling, effective October 26, 2003, 30 percent disabling, effective October 1, 2008, and 50 percent disabling, effective February 12, 2009; lumbar strain, rated 10 percent disabling, effective October 26, 2003;tinnitus, rated 10 percent disabling, effective October 26, 2003; right lower extremity radiculopathy, rated 10 percent disabling, effective November 8, 2008; and laparoscopic scars, rated noncompensable, effective October 26, 2003. Thus, the Veteran met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). What remains to be determined is whether the functional impairment associated with these disabilities is of such nature and severity as to preclude substantially gainful employment. On August 2007 VA spine examination, the Veteran complained of discomfort with lifting. She reported a mild progression of her symptoms since the previous VA examination (in February 2004). The diagnosis was a normal spine examination. On August 2007 VA mental disorders examination, it was noted that the Veteran's last full-time job ended two and a half months ago after four months of working at the location, which was in a fast food restaurant. She indicated that she left the job because she did not see eye to eye with the manager. The diagnosis was depression, anxiety, and mood disorder. A GAF score of 41-50 was assigned. In a VA psychiatric report dated August 2006 (noted in an October 2007 report that the examination report dated August 2006 should have been dated August 2007), it was noted that the Veteran was receiving intensive daily Day Hospital Program treatment. On the basis of the daily treatment, the diagnosis included PTSD and bipolar disorder. A GAF score of 34 was assigned. Separate and distinct from her anxiety disorder, she also presented with severe bipolar disorder. It was also noted that the Veteran had a history of three suicide attempts. On the basis of the evidence presented in the report, it was opined that the Veteran was totally disabled for purposes of employment. It was indicated that she remains emotionally labile, impulsive, generally anxious and on-guard, and intermittently unable to perform activities of daily living, limiting her ability to consistently maintain employment. She is prone to rapid deterioration in the face of relatively minor stress, leading to self-harmful behavior including suicide attempts and threats to others. Despite her strong desire to work, she has had multiple recent failed attempts at work due to her psychiatric symptoms. Her functioning was so erratic that either seeking or maintaining meaningful employment was essentially impossible, and her instability places her at ongoing risk of harming herself or other people. On November 2008 VA spine examination, the Veteran complained of back pain, usually after standing or walking for too long, or lifting or bending. Her back pain affects her activities of daily living and her ability to work because she is unable to do heavy lifting or prolonged walking for longer than 45 minutes. The assessment was lumbar strain with right lower extremity radiculopathy. On November 2008 VA neurological disorders examination, the Veteran complained of severe migraine headaches (rated a 9 on a scale of 10), occurring on the left side of her forehead, then encompassing her whole head, and associated with visual aura, photophobia and phonophobia. It was noted that she has to take her medication and sleep in a dark, quiet room when she has her headaches. She related that she cannot work through her headaches, having to go home if she is at work, and that they occur three times per week. It was noted she works part-time as a waitress, working about 13 hours per week. On November 2008 VA mental disorders examination, it was noted the Veteran was unable to work and that she requires the help of family to function. She struggles with holding a job due to anger outbursts. She stated her medications were extremely sedating and make it difficult to be on time. The diagnosis was bipolar disorder, general anxiety disorder, and rule out PTSD. A GAF score of 45 was assigned. In a November 2008 VA mental disorders examination addendum report, the examiner indicated he was unable to separate the symptoms of each diagnosed psychiatric disorder, and that he could not give separate GAF scores for each diagnosis. On March 2009 VA mental disorders examination, it was noted that the Veteran had not worked in the past four months. She indicated that she lost her prior jobs due to difficulties in relationships with co-workers. The examiner opined that it seems more likely than not the Veteran's problems with interpersonal relationships are due to personality issues, rather than her service-connected generalized anxiety disorder. The diagnosis was bipolar disorder, generalized anxiety disorder. A GAF score of 48 was assigned. On March 2009 VA neurological examination, the Veteran reported a dull kind of headache five times per week for at least two months. Because of increased stress in life and family issues, her headaches have increased in frequency. She related she also has a severe headache on average two times per week. Before the severe headaches occur, she indicated she has an aura of seeing black dots around her eyes. She further reported she experiences lightheadedness, photophobia, phonophobia, and irritability with her headaches. She takes over-the-counter drugs for her dull headaches, and is on medication for her severe headaches. She related she was unable to do any activity with her severe headaches, and that she has to leave work at least three times per week. The diagnosis was migraine headaches, incapacitating at least three times per week. On March 2009 VA spine examination, it was noted that the Veteran uses a back brace with moderate relief. She reported she can only walk 15 or 20 minutes before she starts having back pain. She has increased pain with prolonged lifting, standing or walking. The assessment was lumbar strain. It was opined she should be able to perform most light duty and definitely sedentary work with little to no difficulty. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), that the evidence supports the Veteran's service-connected disabilities prevent her from securing or following substantially gainful employment. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. Geib v. Shinseki, No. 2012-7164 (Fed. Cir. Oct. 29, 2013). Significantly, the evidence shows that the Veteran has rarely worked full-time following her separation from service, and mostly part-time. In addition, her education includes a high school degree and approximately one to two years of college. Further, her post-service work experience has consisted mainly of working as a waitress. The Board also finds significant that the Veteran has been found by VA licensed clinical psychologists to be totally disabled for purposes of employment since August 2007. In addition, the evidence shows that the Veteran has difficulty with prolonged standing or walking, as well as lifting and bending. The record also shows that the Veteran has significant and frequent migraine headaches through which she is unable to work, having to go home if the headaches occur at work. The Board also finds significant that the Veteran's GAF scores have ranged from 34 to 50, with scores ranging from 31-40 reflecting "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 41-50 is assigned where there are "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." While there is some indication that the Veteran's interpersonal difficulties and psychiatric impairment might be due to nonservice-connected psychiatric disorders, the Board finds that such issue is at least in equipoise whether her interpersonal difficulties are due to her service-connected versus nonservice-connected psychiatric disorders. Hence, the Board finds that the evidence shows that the Veteran's service-connected lumbar spine disability and migraine headaches, in addition to her variously diagnosed psychiatric disorder, are of such a severity that she would be unable to secure or follow a substantially gainful occupation. Given the evidence of record regarding the severity of the Veteran's service-connected lumbar spine disability, migraine headaches, and variously diagnosed psychiatric disorder, and their impact, as well as the various medical opinions of record, and the other evidence of record indicating the Veteran's functional limitations due to her service-connected disabilities, the Board finds that the evidence shows the Veteran is entitled to an award of a TDIU rating. Geib. Accordingly, the Veteran's appeal of this issue is granted. ORDER Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs