Citation Nr: 1804203 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-18 463A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In that rating decision, the RO denied a TDIU. In January 2014, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In March 2014, and again in June 2016, the Board remanded the case to the RO for the development of additional evidence relevant to the TDIU claim. The Board is satisfied that there has been substantial compliance with the remand directives. FINDING OF FACT The effects of the Veteran's service-connected disabilities, including his left hand disability, right hand carpal tunnel syndrome, and major depressive disorder, produce sufficient impairment to make him unable to maintain a substantially gainful occupation. CONCLUSION OF LAW The ratings and effects of the Veteran's service-connected disabilities meet the criteria for a TDIU. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.16 (2017). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). As the Board is granting the benefit sought on appeal, it is not necessary to discuss how VA addressed its duties to notify and assist the Veteran. The Veteran essentially contends that the combined effects of his service-connected disabilities make him unemployable. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of disability ratings for service-connected disabilities. 38 C.F.R. § 4.16(a). A finding of entitlement to TDIU depends on the impact of a veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Entitlement to TDIU requires service-connected impairment so severe that it would make the average person unable to follow a substantially gainful occupation. Consideration may be given to the person's level of education, special training, and previous work experience, but not to his or her age or to the impairment caused by disabilities that are not service-connected. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). Service-connected disabilities must preclude the person from engaging in substantially gainful employment, that is, work which is more than marginal, and that permits the person to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The ultimate question is whether the person, in light of his or her service-connected disabilities, is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service-connected disabilities include residuals of injury of the left hand and wrist, rated at 60 percent, major depressive disorder, rated at 50 percent, right hand carpal tunnel syndrome, rated at 30 percent, hypothyroidism, rated at 10 percent, tinnitus, rated at 10 percent, bilateral hearing loss, rated at 0 percent, and eczema, rated at 0 percent. The combined rating is 90 percent. The ratings for his disabilities meet the criteria for a TDIU. A TDIU is warranted if the combined effects of his disabilities produce impairment sufficient to make him unable to secure or follow a substantially gainful occupation. During the Veteran's service, while he was working on a helicopter he sustained severe injuries of his left hand and wrist. He had amputation of the long and ring fingers and multiple fractures of the metacarpals and the index and small fingers. He underwent multiple surgeries. VA established service connection for his left hand disability, with loss of use of the hand, effective from his 1995 separation from service. VA also established service connection for his major depressive disorder, tinnitus, hearing loss, and eczema effective from that time. VA established service connection for his right carpal tunnel syndrome and his hypothyroidism effective from 1996. On VA examination in October 2009, the Veteran indicated that he had last worked at a call center, and that presently he was unemployed. The examiner found that while the Veteran was employed his left hand disability and right carpal tunnel syndrome made it take longer for him to do his work. In a December 2009 claim for a TDIU, the Veteran reported that he had worked full time in technical support from July 1999 through January 2009. In May 2010 the Veteran wrote that his left hand disability and his right hand carpal tunnel syndrome make it very difficult to perform the job for which he was trained. He stated that his right hand became more painful the more he used it. In June 2010, the United States Social Security Administration (SSA) found that the Veteran's disabilities did not make him disabled for SSA benefits purposes. In August 2010, the Veteran wrote that, by the time he was laid off from his most recent job, he was experiencing great difficulty performing the job, in significant part due to his inability to use his left hand and the pain in his right hand. He also reported difficulty with concentration. He stated that flare-ups of right hand numbness and pain necessitated taking breaks from his tasks, and that those breaks exacerbated his concentration problems. On VA mental disorders examination in December 2010, the Veteran reported that he was struggling to obtain and maintain employment, and that his employment problems increased his depression. He reported suicidal ideation. In March 2011, the Veteran wrote that his depression was so severe that he did not want to get out of bed each morning. He related having impaired memory and concentration. He stated that, despite years of experience in call center work, he recently failed a test for a call center job. He reported suicidal and homicidal thoughts. In June 2011, he wrote that his concentration problems interfered with his capacity to work in the computer field. In August 2011, the Veteran was admitted for inpatient VA mental health treatment for major depression, pain syndrome, and suicidal ideation. In VA mental health outpatient treatment in September 2011, he reported having obtained part time employment. In July 2012 he indicated that he was working part time information technology (IT). In August 2012 he reported having a part time IT job and a second part time job cleaning buildings. On VA mental disorders examination in August 2012, it was noted that the Veteran was under stress in his part time job, and that he had ongoing depression and anxiety despite medication. The examiner indicated that his psychiatric disability produced 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 October 2012 the Veteran asserted, through his representative, that his depressive disorder prevented him from obtaining gainful employment. In VA treatment in December 2012, the Veteran reported that he had enrolled in courses toward a degree. In January 2013, he stated that his IT job had become full time. In the January 2014 Board hearing, the Veteran indicated that he was working full time in IT, and he was taking courses through VA vocational rehabilitation. He reported ongoing psychiatric problems including anxiety, impaired concentration, and daily suicidal thoughts. He related that problems with memory and concentration interfered with his work performance. He indicated that he regularly had problems remembering how to do tasks he had already learned. He stated that he sometimes had to leave work partway through the day because of depression. He indicated that as a result he had missed about two to three weeks of work over the preceding year. He said his psychiatric symptoms were overwhelming and that work was "killing him." Records of VA treatment of the Veteran in January 2014 reflect his ongoing full time work in IT. In March 2014 he related working full time and taking college courses. In April 2014 he reported ongoing effects of depression. On VA mental disorders examination in July 2014, the Veteran reported ongoing depressive symptoms. He related that he worked full time and took courses. He reported poor sleep, irritability, and impaired concentration and memory. He reported passive suicidal ideation. The examiner concluded that the Veteran's psychiatric disability produced 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 VA mental health treatment in August 2014, the Veteran reported increased difficulty with concentration. He indicated that he continued to work full time and take online courses. In an October 2014 statement, the Veteran wrote that the notes from his VA treatment and examinations did not reflect the full extent of his depression. He contended that his depression and his other disabilities, including the left and right hand disabilities, tinnitus, hearing loss, and skin problems, contributed to form a basis for a TDIU. In VA mental health treatment in October and November 2014, the Veteran reported ongoing anxiety and difficulty with concentration. In VA mental health treatment in June 2016, the Veteran reported ongoing depression, anxiety, and sleep disturbance. He indicated that he was employed. On VA examinations of the Veteran's upper extremities in January 2017, the examiner found ongoing loss of use of his left hand. That hand continued to have no capacity to form any sort of pinch or to perform any manipulation of small objects. There was ongoing ankylosis of the metacarpophalangeal (MCP), proximal interphalangeal (PIP), and distal interphalangeal (DIP) joints of the index and small fingers. The thumb and the tip of the index finger could not be made to touch. The hand had muscle atrophy. The Veteran reported that he addressed work tasks by bearing all of the weight of lifted objects with his right hand, using the left hand only to balance the object. He stated that when two extremities were needed to lift or move something he had to grip the object between his forearms rather than his hands. He indicated that squeezing of his shoulders to lift things by this method was followed by shoulder pain. The examiner stated the left hand disability precluded all occupational activities that required two functional hands. The Veteran reported that, since the injury of his left hand, he had to perform all manual activities with his dominant right hand. He stated that he was out of the work force for several years. He related that he acquired skills in IT and eventually obtained employment in that field, which he presently held. He stated that in his present position his duties were running cables and installing computer equipment. He indicated that he used his right hand and left thumb to use a keyboard. He stated that his right carpal tunnel syndrome produced pain in that hand and loss of sensation in the thumb and index finger. He related that these symptoms limited his use of that hand. He indicated that the pain and functional limitation of his right hand worsened over time. He stated that when using a keyboard, after seven or eight minutes, he had to stop and shake out his right hand. He related that after about three such cycles of such keyboarding and pausing, he had to stop using a keyboard for an hour or more before he could resume. He reported that his right carpal tunnel syndrome caused him difficulty performing tasks that required manipulation or fine motor skills, including plugging wires into computer ports and managing screws and screw drivers. He stated that he avoided using his right hand for driving, because any prolonged flexion of that hand brought on painful dysesthesia. He reported that diminished grip strength in his right hand sometimes led him to lose his grip on and drop electronic equipment. The examiner found that the Veteran's right hand had full ranges of motion, but that there was evidence of pain with use of that hand. The examiner found decreased sensation in the right hand, and evidence of moderate incomplete paralysis of the right median nerve. The examiner noted that the Veteran had good right hand grip strength on examination, but stated that repetitive use would probably reduce that strength and result in increased pain and numbness. On examinations in January 2017, the examiner concluded that neither the Veteran's hypothyroidism nor his eczema affected his ability to work. On VA mental disorders examination in February 2017, the Veteran reported ongoing depression and anxiety with current symptoms of intermittent suicidal ideation, sleep disturbance, desire to isolate, low frustration tolerance, irritability, low self-esteem, and feelings of hopelessness and helplessness. He reported that he was treated with medications to address sleep disturbance and impaired attention and concentration. He indicated that he obtained a bachelor's degree in IT in 2015. He stated that he remained employed full time in IT, in a job he had held since 2013. He reported that he was seeking from his employer accommodations for his disabilities. He stated that his psychiatric disability affected him at work in that he had difficulty organizing tasks, he became angry and lashed out verbally, and impaired sleep left him fatigued and slowed his performance of tasks. The examiner reported having reviewed the Veteran's claims file. The examiner noted that the Veteran had depressed mood, anxiety, and chronic sleep impairment. On examination the Veteran was oriented. He had normal speech and adequate judgment. There was no evidence of hallucinations. His affect was irritable. The examiner concluded that his psychiatric disorders, including major depressive disorder, produced 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. On VA audiological examination in February 2017, the examiner concluded that that the Veteran's hearing loss might affect his work by affecting his ability to hear in noisy environments or over a telephone or speakers and his ability to hear high pitched sounds. The examiner opined that his tinnitus did not affect his occupational functioning. In VA treatment in March 2017, the Veteran reported ongoing anxiety, mostly related to his current job. The Veteran has held employment, but he has struggled to due to considerable limitations, difficulties, and strains caused by his service-connected disabilities. The combination of the loss of use of his left hand, and the limitations on use of his right hand due to his carpal tunnel syndrome, severely limit the type and duration of manual tasks he can perform. He is trained in and works in IT, but his hand disabilities preclude or greatly limit performance of some of the duties of that employment. His inability to lift or move things with his hands force him to pin them between his forearms. Communication or work using a keyboard is mainly limited to his right hand, and even then right hand carpal tunnel symptoms cause short and long interruptions in such tasks. The manifestations of his major depressive disorder also cause him problems in his employment. His sleep impairment causes fatigue and slowed work performance. Concentration problems interfere with organizing his work, and memory problems are manifested by forgetting previously learned tasks. He worries that anger control problems harm his interactions and could jeopardize his employment. On days when depressive symptoms flare, he loses time from work. The combined effects of his service-connected left hand disability, right carpal tunnel syndrome, and major depressive disorder make him less able, and in some cases unable, to perform the physical and mental acts required by employment. Although he has managed to remain employed despite those impairments, the evidence at least equivocally supports a conclusion that those disabilities produce impairments so severe that they would make the average person unable to follow a substantially gainful occupation. Resolving reasonable doubt in favor of the claim, the Board grants a TDIU. ORDER Entitlement to a total disability rating based on individual unemployability is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs