Citation Nr: 1336712 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-10 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for service-connected bronchial asthma, currently evaluated 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1967 to June 1970. This matter is before the Board of Veterans' Appeals (the Board) on appeal of July 2008 and January 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Petersburg, Florida, and Nashville, Tennessee, respectively. Original jurisdiction in this case now resides solely with the RO in Nashville, Tennessee. In July 2010, the Veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the Nashville RO. A transcript of the hearing has been associated with the Veteran's VA claims folder. At this hearing, the Veteran submitted additional medical evidence directly to the Board, accompanied by a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). In January 2011, the Board remanded the Veteran's claims for additional evidentiary development. In an April 2012 decision, the Board remanded the issue of entitlement to a TDIU and denied the Veteran's claim for a rating in excess of 30 percent for service-connected bronchial asthma. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2012 Order, the Court vacated the portion of the September 2011 Board decision denying an evaluation in excess of 30 percent for bronchial asthma and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Board notes that in correspondence dated in July 2011 and January 2012, the Veteran indicated a desire to testify at a second BVA hearing at a local VA office as to the issues currently on appeal. See the Veteran's July 20, 2011 and January 27, 2012 VA Form 9s [submitted following the issuance of June 2011 and July 2012 SSOCs respectively]. The Board finds that there is no compelling reason to provide him with a second hearing. As discussed above, the Veteran was already provided an opportunity to set forth his contentions with respect to his increased rating claim for asthma, and his TDIU claim during the hearing before the undersigned VLJ in July 2010. The Board emphasizes that 38 C.F.R. § 20.700(a) (2012) is expressly titled "Right to a hearing," and provides that "a hearing" will be granted when the appellant expresses a desire to appear in person. The regulation implements the provisions of 38 U.S.C.A. § 7107(b), which provides that the Board "shall decide any appeal only after affording the appellant an opportunity for a hearing." 38 U.S.C.A. § 7107(b) (2012). The Board further notes that this statute also refers, in other contexts, to the Board's duty to afford the Veteran a single hearing. 38 U.S.C.A. §§ 7107(d) (1)-(3). There is nothing within the applicable statutes and regulations mandating the Board to provide a veteran with multiple hearings for an issue on appeal. Rather, a review of the hearing regulations implies that a new hearing may be warranted only upon a showing of sufficient cause, such as when "a hearing has not been recorded in whole or in part due to equipment failure or other cause, or the official transcript of the hearing is lost or destroyed." See 38 C.F.R. § 20.717 (2012). Because the Veteran in this case was provided with an adequate hearing regarding the issues on appeal in July 2010, and there is nothing in the record to suggest that any portion of official transcript is missing or unavailable, the Board finds that he is not entitled to a second hearing. The Veteran has been free to submit lay testimony at all times during the pendency of the appeal, and has done so on multiple occasions either directly, or through his attorney. The Board also recognizes that in February 2012, the Veteran's attorney at the time also submitted additional argument in favor of extraschedular rating for the Veteran's service-connected asthma. The Veteran's attorney specifically indicated that extraschedular consideration had not yet been addressed by the AOJ. See the February 6, 2012 letter from the Veteran's attorney. The Board wishes to make clear that, in this case, it is not required to remand the Veteran's perfected asthma increased rating claim for an initial determination as to whether the extraschedular component of the claim should be referred to the Under Secretary for Benefits or the Director of Compensation & Pension Service under 38 C.F.R. § 3.321(b). Indeed, in Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarifies that 38 C.F.R. § 3.321(b) (1) does not preclude the Board from considering whether referral of a claim to the appropriate first-line officials to address the question of entitlement to an extraschedular rating is required. Bagwell specifies that the Board is also not precluded from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to § 3.321(b) (1), or from reaching such a conclusion on its own. In addition, the Court in Bagwell found that the denial of an extraschedular rating by the Board in the first instance does not violate the prejudice safeguard set forth in Bernard v. Brown, 4 Vet. App. 384 (1993). The Court reaffirmed that the question of an extraschedular rating is a component of a claim for an increased rating before the RO. Just as the appellant in Bagwell had a full opportunity to present his increased rating claim before the regional office, so too did the Veteran in this case. Thus, consideration by the Board of an extraschedular rating claim in the first instance does not result in prejudice to the appellant, and in the absence of a showing of prejudice, the Board's determination regarding such a rating does not mandate a remand. See Bagwell, 9 Vet. App. at 339. The Board notes that the Veteran executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in October 2009 appointing Andrew L. Wener, Attorney at Law, as his representative. However, in September 2013 correspondence, Mr. Wener filed an unopposed motion to withdraw his representation of the Veteran in this matter. This motion was granted by the Board on November 7, 2013. FINDINGS OF FACT 1. The Veteran's asthma requires intermittent systemic corticosteroid therapy and is manifested by FEV-1 scores of not less than 56 percent and not more than 70 percent of predicted value and FEV-1/FVC ratios that are not worse than between 56 to 70 percent on objective pulmonary function testing. 2. The Veteran meets the schedular requirements for a TDIU, and his service-connected bronchial asthma precludes him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 60 percent evaluation, and no higher, for service-connected bronchial asthma, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6602 (2012). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the Veteran's claim to entitlement to a TDIU, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A (a) (2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Given the favorable disposition to grant the claim for entitlement to a TDIU; the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished as to this issue. Regarding the increased rating claim, , the RO provided notice to the Veteran in a September 2008 letter, prior to the date of the issuance of the appealed January 2009 rating decision. The September 2008 letter explained what information and evidence was needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the report of October 2008, March 2011 and February 2013 VA examinations. The February 2013 examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the February 2013 VA examination report is sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative. The Board finds that no additional RO action to further develop the record on the claim is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Increased Rating for Bronchial Asthma A. Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's bronchial asthma is currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6602 [bronchial asthma] (2012). Diagnostic Code 6602 is deemed by the Board to be the most appropriate, primarily because it pertains specifically to the diagnosed disability in the Veteran's case [asthma]. Neither the Veteran nor his attorney has suggested or requested that another Diagnostic Code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 6602. Under Diagnostic Code 6602, bronchial asthma with FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent predicted, or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication warrants a 30 percent rating. Bronchial asthma with FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids warrants a 60 percent rating. Bronchial asthma with FEV-1 that is less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications warrants a maximum 100 percent rating. Post-bronchodilator studies are required when pulmonary function testing (PFT) is conducted for disability evaluation purposes, except when the results of pre- bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96 (2012). When evaluating a restrictive lung disability based on PFTs, VA is to use the post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d) (5) (2012). In those cases, VA is to use the pre-bronchodilator values for rating purposes. Id. If the FEV-1 and FVC values are both greater than 100 percent, then VA may not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d) (7) (2012). Ratings for coexisting respiratory conditions such as chronic bronchitis will not be combined with each other; instead, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (2012). B. Factual Background and Analysis The Veteran filed his claim for an increased disability rating for his service-connected asthma in July 2008. Therefore, the question to be answered by the Board is whether any different rating should be assigned for the relevant time period under consideration, or July 2007 to the present. On VA examination in February 2013, the examiner noted that Veteran had both asthma and chronic obstructive pulmonary disease (COPD). The examiner noted that the Veteran had been diagnosed with significant immunoglobin E (IgE) elevations which corroborated the diagnosis of asthma. The examiner reported that in 2012, the Veteran was given 3 Prednisone tapers and that since October 2012, he had been on Prednisone 30mg daily. He had been to the emergency room 4 times in the last 12 months and he was admitted to the hospital on 2 of those occasions. The examiner specifically determined that the Veteran's respiratory condition required systemic (oral or parenteral) high dose (therapeutic) corticosteroids for control. When he was discharged from the hospital in January 2013, he was to take 60mg of Prednisone for 3 days and was then to decrease his intake gradually. This was his 5th Prednisone taper this year besides his daily Prednisone. The Veteran's respiratory condition did not require daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. The examiner also noted that the Veteran had both asthma and COPD which required both inhaled bronchodilator and inhaled anti-inflammatory medication. The examiner indicated that there was no way to determine which of these entities required how much of each medication without resorting to mere speculation. His respiratory condition required the use of antibiotics but he did not require outpatient oxygen therapy or continuous oxygen therapy for his respiratory condition. He did not have any asthma attacks with episodes of respiratory failure in the past 12 months. The examiner noted that while it was very difficult to separate the COPD/emphysema damage to his lungs from smoking from his bronchial asthma, it was clear that in the past year his asthma had seriously worsened. Anti-IgG was only given for asthma and the Itraconazole being given was as a preventive measure only because his asthma was so severe with exposure to numerous fungi. He also had to take higher doses of Prednisone and had to take them more frequently in the past year. He had a pre-bronchodilator reading of FEV-1/FVC of 72 and a post-bronchodilator reading of FEV-1/FVC 73. The examiner noted that while COPD/emphysema and asthma were both present, the Veteran had quit smoking in May 2012 and his PFT's had actually improved slightly. However, the examiner quoted his Chief of Pulmonary Medicine in nothing that PFT's are of no value in determining the disability of an asthmatic patient as this disability should be based on clinical severity and the extent of treatment. Presently, the Veteran's medicine regimen was much more extensive than it had ever been including daily Prednisone and 2 week immunosuppressive anti-IgE, OMALIZUMAB which would put him at least in the "at least three times a year courses of systemic corticosteroids." The Veteran's PFT values do not fall within the prescribed ranges for an increased rating. In fact, of all PFT results currently of record dated since February 2004, only a June 2009 PFT reveals that the Veteran exhibited FEV-1 testing of lower than 55 percent of predicted value prior to using a bronchodilator. All other FEV-1 and FEV-1/FVC values dating from 2004 to the present day have been higher than the 55 percent required for the assignment of a disability rating greater than 30 percent for bronchial asthma. Notably, the most recent PFT tests taken at the February 2013 VA examination exhibited FEV-1 and FEV-1/FVC of 72 and 73. As a whole, such results more nearly approximate those contemplated for the assignment of a 30 percent rating under Diagnostic Code 6602. See 38 C.F.R. § 4.7. An increased rating increase to 60 or 100 percent is therefore not warranted based on PFT scores. However, with respect to the frequency of the Veteran's treatment, the record demonstrates that the criteria for a 60 percent evaluation under Diagnostic Code 6602 have been met as the evidence demonstrates that the Veteran has had intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Specifically, the record demonstrates that the Veteran was placed on intermittent corticosteroid therapy involving Prednisone. Pertinently, the February 2013 VA examiner noted that the Veteran's respiratory condition required systemic (oral or parenteral) high dose (therapeutic) corticosteroids for control and that his medicine regimen was much more extensive than it had ever been including daily Prednisone and 2 week immunosuppressive anti-IgE, OMALIZUMAB which would put him at least in the "at least three times a year courses of systemic corticosteroids". The examiner's determination corresponds squarely with the schedular requirements for the assignment of a 60 percent disability rating. Therefore, on this basis the Board concludes that the criteria for a 60 percent evaluation under Diagnostic Code 6602 have been met. However, the Board does not find that the clinical evidence supports the assignment of a rating higher than 60 percent for the Veteran's asthma as the requisite FEV-1 and FEV-1/FVC scores on pulmonary tests to support a 100 percent evaluation under Diagnostic Code 6602 have not been objectively demonstrated. Furthermore, the clinical evidence does not demonstrate that his asthma is manifested by more than one asthma attack per week with episodes of respiratory failure, or that his asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Notably, the February 2013 VA examiner specifically indicated that the Veteran's asthma was not manifested by more than one asthma attack per week with episodes of respiratory failure and did not require daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Thus, for all the foregoing reasons, the Board finds that a 60 percent, but no higher, rating for bronchial asthma, is warranted. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected bronchial asthma. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. While the record demonstrates that the Veteran has gone to the emergency room and been hospitalized on 2 occasions, the clinical evidence does not indicate that the Veteran's asthma requires treatment through frequent hospitalizations. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned and the Veteran's symptoms are contemplated in the current 60 percent disability evaluation. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. TDIU A. Law and Regulations Under VA laws and regulations, a TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her 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; however, age and any impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned even where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining the above, the following will be considered as one disability: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor set forth under 38 C.F.R. § 4.26, if applicable; 2) disabilities resulting from common etiology or a single accident; 3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; 4) multiple injuries incurred in action; or 5) multiple disabilities incurred as a prisoner of war. In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). B. Factual Background and Analysis The Board notes that the Veteran's disability evaluation for bronchial asthma meets the threshold regulatory requirement for the award of a schedular TDIU under 38 C.F.R. § 4.16(a). On VA examination in February 2013, the examiner noted that the Veteran was unemployed. The examiner opined that the Veteran's non-service connected medical problems and his service-connected hemorrhoids did not render him unable to obtain or maintain gainfully employment in either a sedentary or physical job. However, the Veteran's service-connected bronchial asthma rendered him unable to obtain or maintain gainfully employment in either a sedentary or physical job as the Veteran could not be a reliable employee in terms of showing up for work if he was having an exacerbation or had to go one of his many medical appointments for medications and monitoring. This would affect either a sedentary or physical job. In view of the February 2013 opinion, the Board finds that the symptoms associated with the Veteran's service-connected bronchial asthma have rendered the Veteran unable to secure or follow a substantially gainful occupation. The Board finds the evidence in relative equipoise as to the question of whether the Veteran's service connected bronchial asthma currently renders him unemployable. As such, the Veteran is entitled to the benefit of the doubt, and entitlement to TDIU is granted. ORDER Entitlement to a rating of 60 percent for bronchial asthma is granted, subject to the laws and regulations governing the payment of monetary benefits. A total disability rating due to individual unemployability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs