Citation Nr: 1337604 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-09 701 ) DATE ) ) On appeal from theZ Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from January 1954 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which in pertinent part, denied the claim of entitlement to service connection for sleep apnea with periodic limb movement disorder and denied entitlement to a TDIU rating. The case was previously before the Board in December 2012 wherein the Board denied entitlement to service connection for sleep apnea with periodic limb movement disorder and entitlement to a TDIU. The appellant appealed the Board's December 2012 decision on the issue of entitlement to a TDIU to the U.S. Court of Appeals for Veterans Claims (Court). In May 2013, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order in June 2013, granting the Joint Motion, and returned the case to the Board. As the appellant did not appeal the issue of entitlement to service connection for sleep apnea with periodic limb movement disorder, the December 2012 decision is final in regard to that issue, and the issue is not currently before the Board. In March 2012, the appellant presented testimony at a personal hearing conducted at the Detroit RO before a Decision Review Officer (DRO). A transcript of this hearing has been associated with the appellant's claims folder. In October 2013, the Board received a September 2013 private vocational assessment. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2013). In a written statement dated in October 2013, the appellant's representative waived RO consideration of the new evidence. Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. As noted in the December 2012 Board decision, the issue of entitlement to an increased rating for the service-connected anxiety reaction has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the Board does not have jurisdiction over this issue, it is again referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The appellant's service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for an award of a TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance The claim has been granted, as discussed below. As such, the Board finds that any defect related to VA's duties to notify and assist under the VCAA on that claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2013); Mlechick v. Mansfield, 503 F.3d 1340 (2007). II. Legal Criteria and Analysis The appellant contends that he is unemployable due to his service-connected disabilities. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2013). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (2013) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The appellant is service-connected for (1) postoperative subtotal gastrectomy and vagotomy for bleeding peptic ulcer, complicated by dumping syndrome, evaluated as 40 percent disabling, effective from February 1, 1974; (2) anxiety reaction, evaluated as 30 percent disabling, effective from November 7, 2007; (3) bilateral hearing loss, evaluated as 10 percent disabling, effective from November 7, 2007; and (4) tinnitus, evaluated as 10 percent disabling, effective from November 7, 2007. This yields a combined 70 percent disabling rating, effective from November 7, 2007. See 38 C.F.R. § 4.25. Thus, the appellant meets the minimum schedular criteria for a TDIU rating set forth in 38 C.F.R. § 4.16(a). Consequently, the Board must now determine whether these service-connected disabilities preclude the appellant from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a appellant may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of a service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose, 4 Vet. App. at 363. In his July 2008 claim, the appellant indicated that he had completed high school. He reported that he last worked as an inventory clerk in the civil service from 1989 to 1999. He noted that he retired in 1999 because of his anxiety reaction disability. The appellant has stated that he has been unable to obtain employment since he became disabled. The appellant contends that he is unable to work due to his service-connected disabilities. For the reasons that follow, the Board finds that entitlement to a TDIU is warranted. A September 2008 VA examination report reflects that the appellant reported that when he got a promotion to become a supervisor, he was unable to take the raise and retired because he did not want anyone to know about his anxiety. He reported that he had anxiety symptoms on a daily basis with a severity of moderate degree. He stated that he used to take sick time two to three times per month when he worked and he became unemployed due to his anxiety. The VA examiner stated that the appellant's anxiety affected employment functioning moderately and affected his everyday functioning. The appellant reported that when he got the promotion to become a supervisor, he could not handle the increased responsibility and stress. The appellant reported that he did not socialize because of his anxiety. He avoided crowds, had a tendency to stay home, rarely went to Wal-Mart and shied away from people. He had to force himself to go shopping. A December 2008 VA treatment record notes that the appellant reported anxiety. He stated that he had been more afraid to leave his home, especially when he stayed inside for a couple of days. He reported experiencing two panic attacks within the past two weeks involving sweat, and palpitations. The appellant was afforded a VA audiological examination in March 2009. The VA examiner opined that "[W]hile this patient's hearing loss would not preclude employment, employment settings which rely heavily on spoken communication would be expected to be somewhat difficult for him." At the March 2012 RO hearing, the appellant stated that when he was working he had flare-ups of his gastritis condition, including burning sensations in his stomach. He stated that he had it 90 percent of the time, especially under stressful conditions. He reported that he retired because he could not handle the stress of the job. He stated that his job was not physically demanding, but it caused mental stress. The appellant also stated that he could not stay focused on things for a very long period of time and that he had experienced panic attacks. The appellant is competent to report symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the appellant's statements to be credible as they are consistent with the evidence of record. In a July 2012 VA psychiatric examination report, the VA examiner opined that "Veteran's psychiatric diagnoses do not render Veteran unable to secure and maintain gainful employment. In writer's opinion, Veteran would have some reduced efficiency and periods of inability to completely perform duties, but generally is able to maintain work standards or productivity and efficiency at an expected level." The VA examiner also noted that the appellant's depression, not otherwise specified, is secondary to his service-connected generalized anxiety disorder as a result of managing this condition. The VA examination report noted the appellant had a depressed mood and anxiety and disturbances in motivation and mood. The examiner specifically found the appellant had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. In a September 2013 private vocational assessment, D.P., a vocational expert found that "it is at least as likely as not that his combined service-connected impairments of symptoms related to his service-connected post-operative gastrectomy and vagotomy, anxiety disorder, as well as the physical limitations related to his bilateral hearing loss and tinnitus, collectively have prevented him from securing and following a substantially gainful occupation since at least February 2008 and possibly as far back as 1999 when [the appellant] decided to retire." The vocational expert discussed the medical evidence in the claims file. He noted that the appellant reported that he had not worked since his retirement and that every year since his retirement things had become steadily worse, including having increased difficulties concentrating. The vocational report reflects that the appellant stated that when he worked, he was one of two employees and he worked alone most of the time. The appellant reported that his nervousness and anxiety affected his work. He stated that he was able to keep his anxiety and depression a secret at work by using his vacation and sick time throughout the year when he was experiencing increased symptoms. The appellant reported that he had difficulty since 2008 being around groups of people such as when attending church and grocery shopping. Based on a review of the evidence, the Board concludes that an award of TDIU is warranted. As was discussed in the law and regulations section above, the appropriate TDIU standard is not whether a Veteran is able to obtain any employment, or to maintain marginal employment. See Moore, 1 Vet. App. at 358. Rather, the standard is a subjective one and is whether a Veteran can obtain and maintain substantially gainful employment. In affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of TDIU. In this case, the appellant has ratings of 40 percent or postoperative subtotal gastrectomy and vagotomy for bleeding peptic ulcer complicated by dumping syndrome and 30 percent for an anxiety reaction as well as hearing loss and tinnitus rated as 10 percent disabling each. When taking into account the appellant's employment and educational background, in addition to the severity of his service-connected disabilities, the Board finds that the overall evidence supports the conclusion that the appellant is incapable of performing the physical and mental acts required by employment. Although the March 2009 VA examiner noted that the appellant's hearing loss would not preclude employment, the examiner noted that employment settings which rely heavily on spoken communication would be expected to be somewhat difficult for him. The July 2012 VA examiner found that the appellant's psychiatric diagnoses did not render the appellant unable to secure and maintain gainful employment, but examiner noted that he would have periods of inability to perform duties. The July 2012 VA examiner did not provide a full rationale for the opinion or consider the impact of the appellant's other service-connected disabilities. Thus, the Board finds the July 2012 VA examination report to have limited probative value. The September 2013 private vocational expert opined that it is at least as likely as not that the appellant's combined service-connected impairment of symptoms related to his service-connected post-operative gastrectomy and vagotomy, anxiety disorder and hearing loss and tinnitus, collectively have prevented him from securing and following a substantially gainful occupation since at least February 2008. As the September 2013 vocational expert provided a rationale for his opinion, and based the opinion on a full review of the claims file and an interview with the appellant, the Board finds the opinion to be probative. Thus, the Board finds the September 2013 VA vocational opinion to be more probative than the July 2012 and March 2009 VA examination reports. There are no other opinions of records assessing the impact of all of the appellant's service-connected disabilities on his employability. In conclusion, the Board finds that the evidence of record is sufficient to show that the Veteran's service-connected disabilities, when taking into account his employment and educational history, preclude him from securing or following a substantially gainful occupation. In this case, there is nothing in the record to indicate that the appellant would be able to work with accommodations needed for his service-connected disabilities. Accordingly, in considering the severity of the appellant's service-connected disabilities, his competent and credible lay statements, the opinion from the September 2013 vocational expert, as well as his employment and education history, and in affording him the benefit-of-the-doubt, the Board finds that he is unemployable due to his service-connected disabilities. Entitlement to a TDIU is, therefore, granted. See 38 U.S.C.A. § 5107 (West 2002 & Supp. 2013). ORDER Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs