Citation Nr: 18144314 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-44 465 DATE: October 24, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is warranted from September 8, 2009 through March 7, 2012. FINDINGS OF FACT 1. In a March 18, 2011 rating decision, the Regional Office (RO) denied a TDIU claim and notified the Veteran accordingly on March 22, 2011. He filed new and material medical evidence within one year of the March 22, 2011 notification letter. 2. Throughout the relevant appeal period, the Veteran had a combined, schedular disability rating of at least 70 percent and at least one service-connected disability rated at 40 percent or more. 3. The evidence is at least in equipoise that the combined effects of the Veteran’s service-connected traumatic brain injury (TBI) cognitive disorder, mood disorder associated with TBI, and obstructive sleep apnea (OSA) associated with a skull defect rendered him unemployable from September 8, 2009 through March 7, 2012. CONCLUSIONS OF LAW 1. The March 18, 2011 rating decision’s denial of TDIU did not become final; thus, the 2009 TDIU claim remains on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302. 2. The criteria for entitlement to a schedular TDIU have been satisfied from September 8, 2009 through March 7, 2012. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to July 1970. The only valid power of attorney of record is a July 1987 VA Form 21-22 appointing Disabled American Veterans (DAV) as the Veteran’s authorized VA representative. The Board acknowledges a July 2009 VA Form 21-22 purporting to appoint the Veteran’s spouse as his authorized representative. However, the July 2009 power of attorney is a nullity because his spouse was not (and still is not) an accredited VA representative. Also, VA has not found the Veteran incompetent to manage his own VA benefits. The Board acknowledges September 2009 correspondence in which his spouse purported to represent him and attempted to revoke DAV’s power of attorney on his behalf. However, as the July 2009 power of attorney purporting to appoint his spouse as his authorized representative was a nullity, his spouse had no legal authority to revoke DAV’s power of attorney. In summary, the RO properly recognized DAV as the Veteran’s authorized representative during this appeal and the Board continues to do so here. The Veteran’s representative addressed the issue of entitlement to a higher rating for OSA in an October 2016 statement in lieu of a VA Form 646 and in a July 2018 appellate brief. However, in the December 2015 VA Form 9, the Veteran expressly indicated that he only was appealing “Issue No. 2” in the October 2015 Statement of the Case (SOC), which the SOC phrased as entitlement to a TDIU from November 10, 2009 to March 8, 2012. As he did not perfect an appeal of the increased rating claim for OSA, the Board lacks jurisdiction over that issue. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 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 id. Pertinent regulations for consideration were provided to the Veteran in the October 2015 SOC and will not be repeated here in full. TDIU The Veteran seeks entitlement to a TDIU prior to March 7, 2012. See September 2013 notice of disagreement (NOD) and accompanying correspondence. He contends that he became too disabled to work around May 2007, when his most recent employer terminated his position as a mapmaker. He primarily attributes his alleged unemployability during the relevant appeal period to the functional impact of his service-connected TBI cognitive disorder associated with a skull defect, mood disorder associated with TBI, and OSA associated with a skull defect. After a full review of the record, the Board finds that entitlement to a TDIU is warranted from September 8, 2009 through March 7, 2012 based on the combined effects of the Veteran’s service-connected TBI cognitive residuals, mood disorder associated with TBI, and OSA. Initially, the Board finds that the relevant appeal period begins on September 8, 2009. In a September 8, 2009 report of general information, the Veteran brought informal claims for TBI cognitive residuals, a sleep disorder (claimed as a TBI residual), and hearing loss (claimed as a TBI residual). The Board will construe the September 8, 2009 informal claims for various TBI residuals as increased rating claims for his then service-connected head injury (rated as a “skull defect” under Diagnostic Codes 8045-5296 as 50 percent disabling from March 1, 1974). Notably, the RO also treated the September 8, 2009 report as a claim for an increase. See March 2011 rating decision code sheet (jurisdiction). Essentially, the September 8, 2009 informal claims sought higher and/or separate ratings for various manifestations and residuals of the Veteran’s then service-connected head injury, which VA previously had characterized as a “skull defect.” In addition, the Board finds that the September 8, 2009 informal increased rating claims for various TBI residuals included an implied claim for entitlement to a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2008). (He expressly raised the TDIU issue a few days later in a September 18, 2009 statement; he then filed a formal TDIU claim based on TBI and “cognitive dysfunction” on November 10, 2009.) In a March 18, 2011 rating decision, the RO denied TDIU and notified the Veteran accordingly on March 22, 2011. He filed new and material medical evidence in support of the TDIU claim within one year of the March 22, 2011 notification letter. See favorable medical statement by VA treating physician Dr. B.S.C. received on March 8, 2012. Therefore, the Board finds that the March 2011 rating decision’s denial of entitlement to a TDIU did not become final. It appears the RO also concluded the 2011 rating decision did not become final as the 2015 Statement of the Case identified the period on appeal as retroactive to the November 2009 formal TDIU claim. However, again, for the reasons discussed above, the Board concludes there was a September 8, 2009 inferred TDIU claim. Finally, the Board finds that the relevant appeal period ends on March 7, 2012. On March 8, 2012, the Veteran filed another TDIU claim form, and the RO again denied entitlement to a TDIU in an August 2013 rating decision. The August 2013 rating decision limited its consideration of the TDIU claim to the period from March 19, 2011 (day after the March 18, 2011 rating decision previously denying the 2009 TDIU claim) through March 7, 2012 (day before March 8, 2012, from which Veteran has a combined, 100 percent schedular disability rating). In a December 2013 NOD form and accompanying statements challenging the August 2013 rating decision, he stated that he sought entitlement to a TDIU from September 8, 2009 (i.e., date of receipt of inferred TDIU claim). In the October 2015 SOC, the RO specifically framed the TDIU issue as entitlement to a TDIU from November 10, 2009 (when VA received a VA Form 21-8940 / formal TDIU claim) to March 8, 2012 (date from which he has a combined, 100 percent schedular disability rating). In his December 2015 substantive appeal, he stated that he only was appealing the “Issue No. 2” in the SOC, and he then commented he disagreed “with dates of employment from November 10, 2009 to March 8, 2012.” Therefore, the Veteran expressly limited his appeal to the time period ending March 8, 2012. In summary, the Board will consider the issue of entitlement to a TDIU from September 8, 2009 (date of receipt of TDIU claim inferred under Rice) through March 7, 2012. At all relevant times during the relevant appeal period, the Veteran had a combined, schedular disability rating of at least 70 percent, and at least one service-connected disability rated at 40 percent or more: OSA (50 percent from September 8, 2009); and a skull defect (50 percent from March 1, 1974), respectively. Thus, he met the schedular TDIU criteria under 38 C.F.R. § 4.16(a). Accordingly, entitlement to TDIU is warranted from September 8, 2009 through March 7, 2012 if the evidence shows that he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, without regard to age, non-service connected disabilities, or previous unemployability status. 38 C.F.R. §§ 4.16(a), 4.19. The Board finds that this is the case here. Therefore, entitlement to a TDIU is granted from September 8, 2009 through March 7, 2012. A. Employment and Educational Background The Veteran holds a B.S. in surveying engineering. For most of his post-service career, he worked as a mapping technician or “compiler” with both public and private sector employers. This work entailed creating computerized aerial maps. Most recently, he worked 30 to 40 hours per week as a mapping technician for a consulting firm from April 2004 through around May 2007. He previously had worked as a full-time mapping technician / compiler for an aerial surveying company from June 1992 to April 2004. He credibly reported that he has not worked since his most recent employer terminated him in May 2007 and he submitted Social Security Administration (SSA) earnings statements corroborating those reports. The Veteran and his spouse credibly and consistently reported that throughout his career, including in his most recent position, he often was among the first employees to be laid off during business slowdowns due to longstanding problems completing work tasks efficiently. Specifically, the Veteran credibly and consistently reported that throughout his career it took him much longer than other employees to complete required tasks. He primarily attributed such occupational impairments to his service-connected TBI cognitive residuals (such as concentration problems, especially while under stress), his service-connected mood disorder associated with TBI (including anxiety that is exacerbated by stressful tasks), and his service-connected OSA symptoms (including fatigue and the need to take daytime naps). A May 2007 letter from his most recent prior employer corroborates these lay reports and discusses his ongoing problems with efficiency, including his inability to meet production standards within time constraints. Likewise, a September 2009 letter from a previous employer, an aerial surveys firm, discussed his difficulty learning and retaining new facets of computer programs used for digital photogrammetric applications and producing within time requirements. B. Unemployability due to Service-Connected Disabilities The evidence summarized below is at least in equipoise that the combined effects of the Veteran’s service-connected TBI cognitive residuals, mood disorder associated with TBI, and OSA rendered him unemployable from September 8, 2009 through March 7, 2012. The Board affords great probative value to the competent, credible, and persuasive medical and lay evidence showing the significant functional impact of the Veteran’s service-connected TBI cognitive residuals and mood disorder associated with TBI on his ability to work, as shown by: • September 13, 2010 private neurological evaluation and records review (noting Veteran’s and his spouse’s competent and credible reports of cognitive symptoms and impairments, e.g., decreased patience, distractibility, and problems with focusing; Veteran described how his cognitive slowness interfered with his ability to work efficiently in his prior mapmaking positions and his ability to maintain schedules; neurologist competently and persuasively explained how the impact of a “mild,” February 2010 concussion due to a motor vehicle accident was superimposed on Veteran’s background of preexisting, service-connected TBI residuals of cognitive limitation, including multitasking and concentration issues); • September 29, 2010 VA outpatient neuropsychological evaluation (based on comprehensive, five-hour interview and examination of the Veteran’s TBI residuals and secondary psychiatric issues; Veteran competently and credibly reported consistent feedback from prior employers regarding efficiency issues; he also competently and credibly reported decades of slow performance and processing speed problems, and language issues, e.g., articulation and word-finding difficulties; he reported irritability and tearfulness, and low frustration tolerance, particularly when feeling overwhelmed or fatigued; VA neurologist competently and persuasively found that objective neurological test results corroborated Veteran’s reported TBI cognitive and psychiatric symptoms and impairments; specifically, VA neurologist found performance on neurological tests indicated difficulty learning new information upon first presentation, whether due to anxiety or a problem with encoding; neurologist observed significantly slowed performance to ensure accuracy of responses during neurological tests, which resulted in atypically slow response rate on one test; provider also observed Veteran was anxious during challenging tasks; Veteran also endorsed depressive symptoms; effort testing was deemed valid, i.e., not indicating symptom embellishment and validly representing his current level of cognitive functioning; VA neurologist competently and persuasively concluded that Veteran appeared to be overly diligent and overly cautious in attempting to attend to all incoming information, which likely slowed his performance and exhausted his cognitive resources; VA neurologist also noted Veteran’s tendency to become easily overwhelmed and fatigued, and thus, recommended that “he should give himself extra time to complete cognitive tasks,” and take frequent breaks, repeat information he wishes to retain, and break large tasks into small segments). • VA outpatient treatment records, e.g.: April 2010 VA mental health / behavioral health clinic intake note (noting Veteran’s report of head injury during car accident two months ago and his concern that this injury may have exacerbated symptoms of previous head injury; Veteran reported worsened anxiety and history of poor concentration since [service-connected] head injury in Vietnam); May 2010 VA TBI consult (noting wife’s report that Veteran was more irritable and had more difficulty with following what people say since February 2010 motor vehicle accident and head injury); October 2010 VA mental health note (noting main reported problems were slowing in his thought process and poor motivation to get things done); March 2011 VA behavioral health clinic notes (competently noting service-connected mood disorder primarily manifested as irritability and anger; competently observing service-connected TBI neurocognitive residuals primarily manifested as difficulty with complex attention-based tasks, as shown by neuropsychological testing, and subjective reports of poor motivation and “slowing” in his thought process). • Various lay statements by Veteran and his spouse competently and credibly describing functional impact of service-connected TBI cognitive residuals and mood disorder associated with TBI (e.g., longstanding concentration and focus issues which impaired ability to maintain employment as a mapmaker in technical field with specific efficiency and production requirements; anxiety, irritability, and anger issues, especially during stressful tasks). The Board recognizes that the Veteran sustained a mild concussion due to a motor vehicle accident in February 2010. However, VA and private medical providers consistently, competently, and persuasively found that the impact of the 2010 concussion (consistently characterized as “mild”) was superimposed on his significant, pre-existing TBI cognitive residuals and mood disorder symptoms. See, e.g., September 30, 2010 VA mental disorder examination (concluding February 2010 motor vehicle accident and consequent concussive event likely exacerbated his preexisting, service-connected cognitive disorder due to TBI and service-connected mood disorder associated with TBI); September 2010 private neurological consultation (concluding it is likely that the 2010 head injury had no significant effect on brain functioning at an anatomic, structural, or physiological level, and that the perceived neurological disruptions would be psychologically and situationally derived in a patient with a background of chronic TBI); September 2010 VA neuropsychological evaluation (finding that it is difficult to determine whether Veteran’s longstanding cognitive problems have significantly worsened with his most recent, 2010 head injury; however, acknowledging that his original injury [i.e., service-connected head injury] certainly puts him at greater vulnerability for further decline with subsequent insults). The Board finds that the weight of the evidence shows that the significant functional impact of the Veteran’s preexisting, service-connected TBI cognitive residuals and mood disorder on his ability to work as likely as not began before the 2010 concussion. Furthermore, the Board affords great probative value to the competent, credible, and persuasive medical and lay evidence showing the significant functional impact of the Veteran’s service-connected OSA symptoms such as fatigue on his ability to work, as shown by: • December 2010 VA respiratory examination (noting Veteran’s competent and credible complaints of daytime sleepiness and snoring); • February 2012 letter and outpatient notes by VA primary care provider, Dr. B.S.C. (noting Veteran’s competent and credible reports of OSA symptoms such as daytime exhaustion and fatigue; also noting Veteran’s reported performance issues and warnings at work that Veteran credibly attributed to OSA symptoms such as fatigue; Veteran later clarified that these references to work performance problems were regarding past issues, before he stopped working in 2007). • Veteran’s lay statements, e.g., October 2013 correspondence (competently and credibly describing functional impact of service-connected OSA symptoms such as fatigue, and how few employers are willing to accommodate afternoon naps). In sum, the evidence is at least in equipoise that the Veteran’s functional impairments due to his service-connected TBI, mood disorder associated with TBI, and OSA rendered him unemployable from September 8, 2009 through March 7, 2012, considering his educational and employment background. Essentially, his entire post-service education and career experience was in the highly specialized, technical field of computerized mapmaking, until he was terminated from his most recent position in approximately May 2007 due to verified problems with meeting production standards within time constraints. The evidence clearly shows that positions in this field require cognitive skills such as maintaining concentration to learn and use computer programs, and to complete tasks efficiently within production standards and under time constraints. It strains credulity to imagine a hypothetical job for which the Veteran would be qualified to obtain or maintain employment, given his highly specific employment background, the cognitive demands of his field, and his significant neuropsychological impairments. Indeed, he was unable to maintain employment in this field even when at least one prior employer was very sympathetic to his military background and tried to accommodate his cognitive impairments. See September 2009 letter from prior employer (praising Veteran’s integrity, work ethic, and prior military service; however, noting his pay scale was less due to his cognitive disabilities, e.g., difficulty learning new computer programs and producing in time requirements); see also September 2010 VA outpatient neuropsychological evaluation (“To keep from losing his job in one situation, he reportedly struck a deal with his employers, who had emphasized that they were pleased with the quality but not the efficiency of his work. Specifically, he was allowed to keep working for them and at his own pace, but would agree to earn less money for each job.”). In conclusion, affording the Veteran the benefit of the doubt, entitlement to a TDIU is granted from September 8, 2009 through March 7, 2012. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Special Monthly Compensation (SMC) The Board considered VA’s duty to maximize a veteran’s benefits, including possible entitlement to SMC in addition to a total disability rating. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (observing that entitlement to SMC is an “inferred issue” in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue). SMC at the housebound rate is payable where a veteran has a single service-connected disability rated at 100 percent, and has an additional, service-connected disability or disabilities independently ratable at 60 percent, that are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i). Under Bradley v. Peake, 22 Vet. App. 280 (2008), 38 U.S.C. § 1114(s) does not limit “a service-connected disability rated as total” to only a schedular rating of 100 percent, and 38 C.F.R. § 3.350 (i) permits a TDIU that is based on a single disability to satisfy the statutory requirement of a total rating. In the decision above, the Board granted entitlement to a TDIU from September 8, 2009 through March 7, 2012. The Board based that grant on the combined effects of the Veteran’s service-connected TBI cognitive residuals, mood disorder, and OSA. As the grant of a TDIU herein was not exclusively based on a single disability, it does not satisfy the requirement of a single, 100 percent rating for SMC purposes under 38 U.S.C. § 1114(s) and Bradley, supra. Therefore, the Board will not infer the issue of entitlement to SMC at the housebound rate based on the grant a TDIU herein. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel