Citation Nr: 1607951 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 10-20 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to March 1990 and March 1992 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied the Veteran's claim for a TDIU. The Board notes that in a November 2014 rating decision, the Veteran was granted service connection for an abnormal mitral valve with a history of congested heart failure associated with hypertension and assigned a 100 percent schedular rating for this disability effective July 26, 2013. This decision also granted special monthly compensation (SMC) based on aid and attendance/housebound and increased his ratings for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) to 50 percent and low back disorder to 40 percent, effective June 21, 2014. His combined total rating is 100 percent as of July 26, 2013. FINDINGS OF FACT 1. At the time of the filing of this claim for a TDIU in May 2007, the Veteran had a combined 70 percent rating for his service-connected disabilities. 2. The evidence of record establishes that the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment prior to July 26, 2013. 3. Since July 26, 2013, the Veteran has been in receipt of SMC. Resultantly, the award of TDIU can result in no further benefit, and there remains no case or controversy. CONCLUSIONS OF LAW 1. Prior to July 26, 2013, resolving all reasonable doubt in his favor, the criteria are met for a TDIU. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, and 4.19 (2015). 2. Since July 26, 2013, the assignment of a 100 percent combined schedular evaluation for the Veteran's service-connected disabilities renders TDIU moot. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 4.16(a) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Total disability will be considered to exist 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 (2015). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2015). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2015). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. Disabilities of one or both upper extremities or lower extremities, including the bilateral factor, disabilities resulting from a common etiology or, single accident, disabilities affecting a single body system, multiple disabilities incurred in action, and multiple disabilities incurred as a prisoner of war (POW) will be considered as one collective disability for the purpose of determining whether these § 4.16(a) rating requirements are met. 38 C.F.R. § 4.16(a)(1)-(5). The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). At the time of the Veteran's application for a TDIU in May 2007, he was service-connected for the following disabilities: posttraumatic stress disorder (PTSD), rated as 30 percent; residuals of a right knee injury with painful motion, rated as 20 percent; residuals of a left knee injury with degenerative joint disease (DJD), rated as 10 percent; a low back injury, rated as 10 percent; right ankle osteoarthritis, rated as 10 percent; tinnitus, rated as 10 percent; hypertension, rated as 10 percent; and noncompensable ratings for a right ear hearing loss and residuals of a right knee injury with laxity and DJD. The combined rating, including the bilateral factor for his service-connected lower extremities, was 70 percent. See 38 C.F.R. § 4.16(a)(1). Thus, he met the schedular requirement at the time of filing this claim. The critical inquiry is whether these disabilities alone are of "sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). He need not be totally or entirely unemployable, however. Requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment." See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility. See id. Turning to now to the relevant evidence of record, the Veteran was provided VA examinations in October 2007. Regarding the Veteran's hypertension, the examiner stated that it was poorly controlled. He observed that the Veteran's hypertension led to little perceived functional impairment. The examiner noted that an electrocardiogram revealed abnormal findings and recommended further testing, which the Veteran denied at that time due to an appointment conflict. Concerning his low back disability, the Veteran reported that he had constant back pain. The Veteran stated that problems with his back made lifting objects heavier than twenty five pounds impossible. He reported that he had to drop out of nursing school because he was unable to lift patients due to his back pain. He stated that problems with his back made it uncomfortable to get out of bed. The Veteran further reported difficulty with clothing and bathing himself. The examiner observed that the Veteran required no rest breaks on his way to the examination room or upon exit following examination. He commented that the Veteran exhibited a moderate degree of stiffness upon getting out of the chair in the examination room and during the first few steps. The examiner observed that the Veteran's knees were not fully extended and his upper body was somewhat stiff; however, this improved after a few steps and his gait was subsequently normal. There was no ataxia or faltering. The examiner diagnosed the Veteran with degenerative disease of the thoracolumbar spine and intervertebral discs, stating that they led to moderate functional impairment. In addition, with respect to the Veteran's bilateral knee disabilities, he reported that he had daily flare-ups that last an hour or two every morning associated with an increased degree of stiffness and pain on movement of the knees. He stated that the pain make it difficult for him to walk and necessitates leaving the classroom in order to extend his knees and lay down for a while. The Veteran reported that he had lost two jobs as a result of problems associated with his knee disabilities. He stated that in June 2004 he lost a job as a construction worker because he was unable to climb into and get out of ditches. He also lost a job in 2005 as a mail sorter in the Post Office because his knees were unable to tolerate the job and an orthopedist felt that he was not fit for the duties. The Veteran reported that he did not wear a knee brace. He also did not use a cane, walker or crutches and did not wear any kind of corrective shoes. The Veteran stated that the pain was triggered and aggravated by prolonged sitting, being in cramped spaces and by bending and running. The examiner observed that the right knee was noteworthy for bony enlargement that was visually apparent. There was no redness articular or periarticular swelling and no increased warmth. There was minimal crepitus through range of motion, but no obvious joint laxity or instability. Maximal extension was to 15 degrees. His flexion was from 15 to 95 degrees of 140 degrees with objective evidence of pain at 85 degrees. The examiner stated that there was no further diminution in range of motion due to weakness, fatigability or increased pain noted on repetitive motion and against resistance. The examiner also observed that the left knee revealed mild bony enlargement, but there was no redness swelling, increased warmth or crepitus. Moreover, there was no obvious joint laxity or instability. Maximal extension was to 5 degrees. His flexion was from to 120 of 140 degrees with pain in flexion beyond 95 degrees reported and objectively evident by wincing. The examiner stated that there was no further diminution in range of motion due to weakness, fatigability or increased pain noted on repetitive motion and against resistance. He diagnosed the Veteran with osteoarthritis of both the left and right knees, stating that they led to moderate functional impairment. Regarding the right ankle, the Veteran stated that he had intermittent episodes of aching pain that last for two or three hours at a time. There was no associated weakness or stiffness. He reported that it occasionally swelled, but denied any increased warmth or redness. The Veteran stated that his right ankle buckled and gave way from time to time, but denied any locking, abnormal motion or drainage. He reported that his pain was aggravated by running so he stopped running. The examiner observed that there were no constitutional symptoms of bone disease, grossly evident bony deformity or enlargement. There was a trace of soft tissue edema. The Veteran's dorsiflexion was from 0 to 20 of 20 degrees without subjective complaint and without objective evidence of pain. His plantar flexion was from 0 to 45 of 45 degrees without subjective complaint and without objective evidence of pain. There was no weakness fatigability diminished range of motion or increase of pain noted on repetitive motion or against resistance. The examiner diagnosed him with osteoarthritis of the right ankle, stating that it led to mild functional impairment. At his audiological evaluation, the reported puretone results in the relevant frequencies for VA purposes in the right ear were 20 decibels at 1000 Hz, 20 decibels at 2000 Hz, 25 decibels at 3000 Hz and 15 decibels at 4000 Hz, with an average of 18 decibels. His speech recognition score was 88 percent in the right ear. The examiner diagnosed the Veteran with sensorineural right hearing loss starting at 6000 Hz. At his November 2007 psychological evaluation, the Veteran stated he was enrolled in a nursing program at a local university, but was recently thrown out of the program due to two incidents of allegedly threatening fellow students. He admitted that he threatened a fellow female student and other male students had to restrain him. Since leaving the nursing program, he registered for other classes, but was not sure what he would do as far as majoring in some field. He was a fulltime student and did not work. The Veteran reported that he was married with two young children. He described his relationship with his family as rocky. The Veteran stated that his wife would leave with the kids and move in with her mother periodically when she got upset with him. He reported that he completely isolated himself, spending a lot of time reminiscing and drinking alcohol. Moreover, he stated that he had suicidal ideation, but never attempted it. On mental status examination, the examiner observed that the Veteran was dressed in a black sweat suit and he had the hood pulled over his head throughout the interview. The Veteran wore dark glasses and did not make any eye contact. He spoke looking straight ahead of him. The examiner stated there was no evidence of impairment of thought processes or communication. The examiner, however, observed that the Veteran was delusional on account of statements the Veteran made that he felt God was punishing him and that he would be the next to die. The Veteran also reported having auditory hallucinations. He stated that he heard his friend who died in action screaming in pain. There was no other inappropriate behavior was observed. The Veteran admitted to periodic suicidal thoughts without a plan or intent. He had no homicidal ideations but indicated that he was easily provoked into thinking that people were trying to harm him. The examiner observed that the Veteran's ability to maintain minimal personal hygiene and other basic activities of daily living appeared unimpaired. The Veteran reported ritualistic behaviors including getting up at 3 a.m. to check the yard to make sure there were no bombs planted and checking all the locks and windows. He was oriented in all spheres and had good immediate recall, but the examiner noted that the Veteran's concentration was impaired. The Veteran stated that he had panic attacks and felt depressed and anxious. He reported having nightmares on almost a daily basis. The examiner diagnosed the Veteran with PTSD and assigned a Global Assessment of Functioning Scale (GAF) of 40, which is indicative of the examiner's overall judgment of his social and occupational function. Based on a careful review of all of the evidence, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities precludes him from securing or maintaining gainful employment prior to July 26, 2013. The evidence of record confirms that the Veteran was given a tentative offer of employment that was revoked in August 2005 after a medical evaluation determined that his service-connected knee disabilities prevented him from performing the duties of a mail processing clerk. Moreover, the October 2007 VA examiner commented that the Veteran's low back and knee disabilities had a moderate impact on his occupational and social functioning. In addition, the November 2007 VA psychological evaluation revealed his inability to work with others evidenced by him being released from the nursing program because of threatening a fellow student. Also, this evaluation showed that the Veteran had delusions and impaired concentration. Therefore, considering the effects of the various service-connected disabilities, the Board concludes that a TDIU is warranted prior to July 26, 2013. As already mentioned above, as of July 26, 2013, the Veteran had a combined schedular rating of 100 percent. In June 1999, VA's General Counsel (OGC) issued VAOPGCPREC 6-99 addressing questions of whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court, taking a position contrary to the one reached in VAOPGCPREC 6-99, held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)); see 38 U.S.C.A. § 1114(s) (West 2014). In view of the issuance by the Court of its decision in Bradley, which recognized that it was possible for a veteran first to be awarded TDIU based on a single disability and subsequently receive schedular disability ratings for other conditions that would not duplicate in the count of disabilities for SMC purposes (that is, separate disabilities that could combine for a 60 percent disability rating), in November 2009 the VA General Counsel partially withdrew VAOPGCPREC 6-99 to the extent it was inconsistent with Bradley. In this case, the Veteran has a 100 percent schedular evaluation for his heart disability since July 26, 2013. Further, in light of this and his other service-connected disabilities, the Veteran was awarded SMC. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal with respect to the claim for TDIU since July 26, 2013 is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a TDIU is granted for the period prior to July 26, 2013, subject to the statutes and regulations governing the payment of retroactive VA compensation. Since July 26, 2013, the appeal for TDIU is dismissed. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs