Citation Nr: 1337360 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 96-24 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an effective date earlier than November 21, 2002, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Historically, this issue arises from an appealed rating decision in August 1995 that denied service connection for posttraumatic stress disorder (PTSD). Service connection for PTSD was eventually granted effective from November 18, 1993. The present appeal has inherited the 1996 docket number from the original appeal. The October 2003 rating decision that is presently on appeal increased the disability rating for PTSD from 50 percent to 70 percent effective from November 21, 2002, and also granted a TDIU effective from that date. The Veteran appealed for higher PTSD rating and for an earlier effective date for TDIU. During the course of this appeal, the rating for PTSD was increased to 70 percent effective prior to September 24, 2002, and to 100 percent from that date. The issue of entitlement to a higher rating for PTSD is no longer on appeal before the Board. In August 2004 the Board remanded this issue to the RO for the purpose of issuing a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). In April 2006 the Board once again remanded the issue because the RO had not yet complied with the earlier remand. Stegall v. West, 11 Vet. App. 268 (1998). The RO thereupon issued an SOC, and the Veteran filed a timely Substantive Appeal. Thereafter, the Board remanded the issue yet again, this time to afford the Veteran the requested hearing before the Board. The Veteran and his Spouse testified before the undersigned Veterans Law Judge in a hearing at the RO ("Travel Board" hearing) in August 2007. A transcript of the hearing is of record. At that hearing the Veteran presented additional evidence in the form of a statement by his attending VA psychiatric social worker, along with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2013). In February 2008 the Board issued a decision that in relevant part denied entitlement to an earlier effective date for TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2013 the Court issued a Memorandum Decision that vacated the Board's decision on that issue and returned the case to the Board for further consideration. FINDING OF FACT Since November 18, 1993, the Veteran's service-connected disabilities have rendered him unable to obtain and maintain gainful employment consistent with his education, training and work experience. CONCLUSION OF LAW The criteria for a TDIU effective from November 18, 1993, are met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board's decision below grants in full the benefit requested by the Veteran. Therefore, no discussion of VA's duty to notify and assist is necessary. Applicable Legal Principles The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2013). 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 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. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence The Veteran contends that he is entitled to a TDIU effective from November 18, 1993, the date service connection for PTSD became effective. The Veteran's initial rating for PTSD is 70 percent, in addition to which he is service-connected for peptic ulcer disease (20 percent disabling) and tinnitus (10 percent disabling); his combined disability rating for service-connected disabilities has been 80 percent from November 1993 and 100 percent from September 2002. He accordingly meets the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a) for the entire period under review. Review of the file establishes that the Veteran had a motorcycle accident in 1981 that resulted in multiple injuries to the shoulder, back, left hip and left knee. He was granted Social Security Administration (SSA) disability benefits effective from October 1981 based on those injuries. The Veteran had a VA examination in July 1990 in which he was noted to be currently self-employed as a cattle farmer. The Veteran had a VA psychiatric examination in January 1994 in which he stated that after service he returned to his previous factory job and remained there for eight years. Thereafter, he was self-employed as a service station mechanic for 2-3 years, following which he was a city animal control officer for one year. He had not worked since the accident in 1983 [sic]. During mental status examination (MSE) the examiner noted the Veteran had completed the ninth grade but left school in the tenth grade to work at home; he did not have a high school diploma or general educational development (GED) diploma. The examiner did not comment on occupational impairment and did not assign a global assessment of function (GAF). A September 1995 letter from Dr. Thomas Hickey states in relevant part that the Veteran "is not able to function in a normal manner" and that it had become more difficult for the Veteran to cope with his stress syndrome as he grew older. Dr. Hickey did not comment specifically on the Veteran's employability. The Veteran submitted a Statement in Support of Claim in October 1997 in which he stated he was "not able to do much of anything" and that his wife could not work because she had to help him. A VA occupational therapy note dated in October 1997 states the Veteran had not worked since being severely injured in a motorcycle accident in 1981. Because the Veteran did not intend to return to work he was entered into a recreational therapy program. In terms of cognitive abilities/limitations the Veteran was noted to be oriented, to have adequate attention span (able to attend to task), to have no short- or long-term memory problems, to be able to follow directions and to have adequate insight. In terms of communications skills, the Veteran was able to communicate all his needs, but in terms of social behaviors the Veteran described himself as a "hermit;" he also had poor coping skills. The Veteran submitted a claim for Housebound Status/Aid and Attendance in November 1997 in which he stated he had last worked in 1982, as a self-employed service station employee. He stated he had an eighth-grade education. The corresponding examination for housebound/aid and attendance notes primary complaint of chronic back pain and associated left-side weakness. The examiner diagnosed chronic back pain with spondylolisthesis, degenerative joint disease (DJD) of the left knee and PTSD as current problems. The examiner did not provide an opinion regarding employability. In June 1998 a VA psychiatrist noted current GAF of 45, indicative of serious symptoms or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See Quick Reference to the Diagnostic Criteria from DSM-IV, Washington, D.C., American Psychiatric Association, 1995, pg. 46-47. In August 1998 the Veteran reported to a VA psychiatric social worker that he had been disabled since a motorcycle accident "pretty well destroyed the left side of [his] body" in 1982. Prior to the accident the Veteran had been a "workaholic," owning a gas station and also working as a mechanic. He reported his PTSD symptoms were not much of a problem while he was working but had become more severe since he became disabled. The Veteran's VA psychiatrist continued the GAF of 45 in August 1998, November 1998, February 1999 and May 1999. The GAF was increased to 51 in August 1999, indicative of moderate symptoms or moderate difficulty in social, occupational or school functioning (e.g. few friends, conflicts with peer or co-workers). Quick Reference, supra, pg. 46-47. The Veteran testified before the RO's Hearing Officer in September 1999 in support of a current appeal for increased ratings for service-connected disabilities. He stated he had last worked in approximately 1981 and that his PTSD caused considerable interference with his ability to maintain a regular day-to-day work regimen. He also stated his PTSD made him avoid people and that his medications caused him to have clouded judgment. The Veteran's spouse testified that the Veteran avoided contact with other persons. The Veteran subsequently testified in a Travel Board hearing in April 2000 in support of his appeal for increased ratings for service-connected disabilities. Regarding employment, the Veteran stated he had been unemployed since 1982 due to a number of factors, including his nerves, his stomach problems and his left hip. The Veteran asserted his belief that his service-connected PTSD and gastrointestinal problems were the current reason for his unemployability. He endorsed having finished the eighth grade and being able to read and write. The Veteran's psychiatrist recorded a GAF of 41 in August 2000, November 2000 and June 2001. The corresponding treatment notes record fluctuating symptoms based essentially on the Veteran's social environment. The Veteran had a VA PTSD examination in August 2001, performed by a psychologist. The claims file was not provided to the examiner for review. The examiner noted the Veteran's subjective symptoms in detail, as well as objective symptoms observed during MSE. The Veteran reported he had not worked since 1982, which he attributed to his left hip. The examiner made no observations regarding employability, but assigned a current GAF of 48. The Veteran's psychiatrist continued the previous GAF score of 41 in treatment notes dated in December 2001, March 2002, June 2002 and September 2002. The Veteran's spouse submitted a letter in September 2002 describing the Veteran's isolative behavior and explosive temper. She stated that even if the Veteran were physically able to hold a job he would be unable to do so due to his other problems. Also in September 2002, the Veteran's attending VA psychiatric social worker submitted a letter describing the Veteran as living an isolative lifestyle with limited social contacts. He stated that "coping with the stress of a work environment is simply not possible for [the Veteran]." The Veteran's attending VA psychiatric social worker submitted a letter in September 2005 stating that the Veteran's PTSD had always been severe, which the RO had missed for many years; the Veteran had been under-compensated since his active duty days and backdating the total disability rating would "simply be recognition of that fact." He essentially reiterated this contention in a subsequent letter in April 2006. The Veteran testified before the Board in August 2007 that he was seeking TDIU from November 18, 1993, because he had been unable to work since that time due to his PTSD symptoms. The Veteran stated that he could not relate to people or be around them and that he was afraid he would harm somebody during a flashback. In 1981 he had worked in animal control and had tried to arrange his schedule to avoid interacting with other people. At his hearing the Veteran presented a document dated August 2007, executed by his attending VA psychiatric social worker and titled Medical Assessment of Ability to do Work-Related Activities (Mental). The declarant indicated by checkmark that the Veteran has "fair" ability to follow work rules, use judgment and function independently; he has "poor or none" ability to relate to co-workers, deal with the public, interact with supervisors, deal with work stresses or maintain attention/concentration. The declarant indicated by checkmark that the Veteran has "fair" ability to understand, remember and carry out simple or detailed work requirements but "poor or none" to understand, remember and carry out complex work requirements. In that regard, the declarant stated the Veteran is of normal intelligence but his thought organization, memory and concentration is affected to an extreme degree by his severe anxiety. The declarant indicated by checkmark that the Veteran has "good" ability to maintain personal appearance but "poor or none" to behave in an emotionally stable manner, relate predictably in a social situation or demonstrate reliability. The declarant stated that these findings apply especially to the period 1993 to 2002, although computerized treatment records only go back as far as 1995. The declarant stated he had worked with the Veteran since 1998 and the Veteran's condition had not improved since then. The declarant listed the following diagnoses as relevant medical/clinical findings: chronic PTSD; peptic ulcer disease; tension headaches; hearing loss; chronic low back pain; fatigue syndrome; myalgia; neck pain; osteoarthritis of the knees; spondylolisthesis; rotator cuff syndrome; disorders of the bursae and tendons of the shoulders; and, prostatitis. Analysis The evidence of record establishes that the Veteran's motorcycle accident, rather than PTSD, was the factor that caused him to cease working in his former job. Consideration may not be given to impairment caused by nonservice-connected disabilities; see 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The question before the Board is whether the Veteran's service-connected disabilities are sufficient to render him unable to obtain and maintain any gainful employment consistent with his education, training and work experience. The VA and private medical records produced since November 1993 do not discuss occupational impairment, which is logical since the Veteran had already ceased working by then. In the absence of such discussion, the Board looks first to the GAF scores assigned during the period, which are consistently within the range of 41 to 45. As noted above, this is consistent with inability to maintain employment. Quick Reference, pg. 46-47. While the accompanying mental health treatment notes during the period do not specifically discuss occupational impairment, they document extremely isolative behavior and inability to tolerate interaction with others; such symptoms are also consistent with unemployability. The August 2007 statement by the Veteran's VA psychiatric social worker essentially states, based on review of records dating from 1995 (prior records not being available) and personal observation since 1998, that the Veteran's psychiatric symptoms had rendered him unable to function in a regular worklike setting during the period 1992 to 2002. The declarant did not expressly state that the Veteran had been unemployable during the period, but the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but rather is for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub. nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The August 2007 report constitutes probative evidence of the functional impairment caused by the Veteran's psychiatric symptoms, and supports a finding by the Board that the Veteran was incapable of gainful employment. In sum, based on the evidence and analysis above, the Board finds the evidence is at least in equipoise in showing that the Veteran's service-connected disabilities rendered him unable to obtain or maintain gainful employment from November 18, 1993, to the present. See generally, Mittleider v. West, 11 Vet. App. 181 (1998); Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the criteria for award of a TDIU from that date are met and the appeal is granted. Reasonable doubt has been resolved in the Veteran's favor. Gilbert, 1 Vet. App. 49, 54-55. ORDER An effective date of November 18, 1993, for award of a TDIU is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs