Citation Nr: 1817182 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 10-12 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION The Veteran represented by: Robin Hood, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The Veteran, her father, and her friend, R.P. ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2003 to July 2003 and from August 2005 to December 2006. She also has additional unverified periods of active duty service with the Army National Guard. This matter was initially raised in the Board's December 2015 remand decision, as part and parcel with the increased rating claims previously on appeal from rating decisions issued in December 2008 and January 2015 by the United States Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran previously testified at an August 2014 Travel Board hearing before a Veterans Law Judge who has since left the Board to pursue other federal government service. A copy of the hearing transcript is associated with the electronic claims file and has been reviewed in adjudicating this appeal. The Veteran appeared before the undersigned Veterans Law Judge for a second hearing via videoconference in January 2018. See 38 C.F.R. §§ 19.3(b), 20.707 (2017). A copy of the hearing transcript has also been associated with the electronic claims file. At the January 2018 Board hearing, the Veteran's attorney withdrew from appellate consideration claims of increased ratings for a low back disability and migraine headaches, and entitlement to service connection for bilateral hallux valgus, status-post corrective surgery. See 1/30/18 hearing transcript, p. 2. The attorney's statement at the hearing withdrew these claims in accordance with 38 C.F.R. § 20.204 and was received by the Board prior to the promulgation of a decision. Thus, these claims are no longer before the Board. Since the August 2017 Supplemental Statement of the Case, additional relevant evidence has been received. At the January 2018 Board hearing, the Veteran waived initial RO consideration of a submitted vocational expert's report. However, other evidence, primarily in the form of updated VA treatment records, has been associated to the Veteran's electronic claims file, without the Veteran's waiver of initial RO consideration. Given that the Board is granting the Veteran's TDIU claim for the time period covered by this evidence, infra, the Board may proceed in the absence of this waiver without prejudice to the Veteran. See 38 C.F.R. § 20.1304(c) (2017). The issue of entitlement to a TDIU prior to November 29, 2011 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service connected disabilities reached the threshold combined disability rating to qualify for TDIU consideration on November 29, 2011. 2. The Veteran's service connected disabilities have rendered her unable to secure or follow a substantially gainful occupation since she met the schedular requirements for TDIU consideration on November 29, 2011. CONCLUSION OF LAW The criteria for entitlement to a schedular TDIU have been met since November 29, 2011. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 be rated totally disabled. 38 C.F.R. § 4.16 (2017). 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 (2017). Total disability ratings for compensation may be assigned where the schedular rating is less than total, and 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). Review of the record shows that at no point prior to November 29, 2011 did the Veteran have one disability rated 60 percent or more, or two or more disabilities reaching a total combined disability rating of 70 percent, with at least one disability rated at 40 percent or more. Effective on November 29, 2011, the Veteran satisfied the schedular criteria for a TDIU consideration. It was on this date that the Veteran satisfied the 70 percent total combined threshold, with at least one disability rated at 40 percent or higher (50 percent for service-connected posttraumatic stress disorder (PTSD), 20 percent for service-connected lumbar spine disability, 10 percent for service-connected migraine headaches, and 10 percent for service-connected numb and burning lips). 38 C.F.R. §§ 4.16(a), 4.25 (2017). Note that the Veteran's combined disability rose to 80 percent on August 26, 2013, and 90 percent on November 28, 2016 due to the addition of further service-connected disabilities and increased ratings. Having established that the schedular TDIU criteria were satisfied as of November 29, 2011, the Board now turns to the evidence of record in support of the Veteran's claim. In October 2017 and January 2018, the Veteran underwent a private comprehensive vocational evaluation to assess her potential to secure and follow substantially gainful employment. At the October 2017 evaluation, the Veteran's education, work, and medical histories were obtained, and the Veteran underwent objective vocational functioning tests. She scored borderline, extremely low, or far below average in every test category conducted. Her composite scores were well below average in every category - verbal comprehension, perceptual reasoning, working memory, and processing speed. The evaluator noted that even though the Veteran professed fluency in English, she appeared to be experiencing difficulty understanding English words. She also had a very difficult time concentrating on tasks that did not require language. Additionally, she made numerous errors in some of the tests causing her scores to be much lower than would be expected from a college graduate. On all tests, her speed was very low, and she frequently asked to have questions repeated. As a result of these uncharacteristically low scores for a college graduate, a second testing was performed in Spanish, the Veteran's native language, in January 2018 to eliminate any language barriers negatively affecting her scores. It was also believed that the October 2017 evaluation caused a heightened PTSD response, since the evaluation was conducted by a male inside the Veteran's home. To eliminate this potential source of interference, the January 2018 evaluation was conducted by a female over the phone. While her vocabulary scores were slightly better during this second evaluation, she still continued to have memory difficulties, errors, and slow speed scores. Due to the Veteran's consistently low test scores over two evaluations, the private evaluator concluded the Veteran would experience a severe limitation in employment situations. The evaluator commented: She would be very slow doing even repetitive work and she would likely not be able to consistently remember even two-step directions. Her extremely low scores in both verbal comprehension and perceptual reasoning would make any jobs that required work with the public or working in teams very difficult to complete with any success. While she is pleasant, she would likely agitate customers with wrong orders or information and be very slow in the process. Her low scores do not appear consistent with someone who at one time was able to graduate from college...it seems that her anxiety, lack of ability to concentrate, and her poor memory are the main reason for this performance. Thus, based on this evaluation, it appears that the Veteran's ability to secure and follow substantially gainful employment is significantly hindered by cognitive difficulties stemming from the Veteran's service-connected PTSD/psychiatric disability. Many of the same impairments found in this vocational testing were also noted during a January 2012 VA examination. While the Veteran's speech and communication were characterized as normal, the VA examiner noted impaired attention and focus. Frequent panic attacks and mild memory impairment were also charted. The VA examiner noted that the Veteran's service-connected PTSD symptoms prohibited her ability to sustain employment, caused trouble parenting, resulted in chronic pain, precluded the Veteran from engaging in leisure activities, and resulted in social isolation. At an April 2012 Medical Evaluation Board assessment, the Veteran's psychological symptoms included nightmares, flashbacks during the day of images from her Iraq service, irritability with verbal aggression, hypervigilance, avoidant behavior, sad spells with crying episodes, low self-esteem, insomnia, social withdrawal, lack of motivation, anhedonia, and poor stress tolerance. Under stress, she was reported as decompensating to deep depression and experiencing panic attacks. It was noted that the Veteran's psychiatric symptoms negatively impacted her reliability and productivity. She also struggled daily with performing her family roles and functions, as both a wife and mother, due to negative mood spells. Regarding, her other service-connected physical impairments, a November 2016 VA examination found that the Veteran's low back disability would interfere with physical activity as well as sedentary jobs where she would be required to sit or stand for long periods of time, drive long distances, lift and carry weight, or perform bending movements. Likewise, the Veteran has competently and credibly reported that her service-connected skin disability results in significant itching that makes wearing clothing difficult, with periods of exacerbation lasting weeks at a time. See August 2014 lay statement. The Veteran's TDIU claim is additionally supported by credible and competent lay statements from family and friends documenting their personal observations of the Veteran's many physical and cognitive difficulties. See Barr v. Nicholson, 21 Vet. App. 303, 307(2007). See e.g., August 2014 lay statements. For instance, her father has stated that her pain from service-connected disabilities limits her mobility and flexibility in performing her daily chores. Id. Her father has also described the Veteran's constant worrying and stress and the effect on her functioning. For example, he indicated that on the drive to the Veteran's January 2018 hearing, her stress and anxiety became so severe she began to vomit. The Veteran confirmed that this manifestation of her service-connected psychiatric disability is typical and that she also experiences frequent memory loss and forgetfulness. See 1/30/18 hearing transcript, pp. 8-10. The Board is aware that the Veteran applied for and was denied disability benefits from the Social Security Administration (SSA). Despite finding that the Veteran experienced severe impairment due to the Veteran's spine disorder and affective/anxiety disorders, the SSA denied benefits primarily on a mental and physical residual functional capacity assessment conducted in May 2016. The mental assessment found that the Veteran: 1) could carry out short and simple instructions; 2) was moderately limited in carrying out detailed instruction; 3) was not significantly limited in maintaining attention and concentration for extended periods or performing activities with a schedule, requiring regular attendance; 4) was not significantly limited in interacting appropriately with the general public; and 5) was moderately limited in accepting instructions, responding appropriately to criticism from supervisors, and getting along with co-workers or peers without distracting them or exhibiting behavioral extremes. Overall, the evaluator found that the Veteran may have occasional interruptions from psychologically based symptoms, but had the ability to complete a normal workday while working with co-workers and maintaining socially appropriate behavior. Likewise, the physical assessment found that the Veteran could occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for 4 hours; sit for 6 hours in an 8 hour day; frequently climb ramps, stairs, ladders, ropes, scaffolds, crouch, crawl, and stoop. Based on these assessments, the SSA concluded the Veteran could engage in sedentary, unskilled work. Viewed in the light of the Veteran's mental health records, VA examinations, and private vocational assessment, the Board finds the SSA's residual functional capacity assessments to be an anomaly. The bulk of the evidence as identified above shows that the Veteran's service-connected PTSD results in memory and concentration difficulties, isolative behavior, and severe anxiety. Her service-connected physical disabilities result in chronic pain, itching, and severe functional deficits in the performance of activities of daily living. Given these discrepancies, the Board declines to afford the SSA's disability determination any significant evidentiary weight. Viewing the evidence holistically, there is ample lay and medical evidence of record proving the Veteran's service-connected disabilities prevent her from successfully securing and following substantially gainful employment. Thus, the Veteran is granted entitlement to a TDIU as of November 29, 2011, the date her combined disability rating met the schedular criteria under 38 C.F.R. § 4.16(a). ORDER Entitlement to a schedular TDIU from November 29, 2011 is granted, subject to the laws and regulations governing the award of monetary benefits. (CONTINUED ON NEXT PAGE) REMAND Remand is necessary to refer for extraschedular consideration, the Veteran's TDIU claim for the rating period on appeal prior to November 29, 2011. The Veteran's service-connected disabilities, when combined, were rated as only 60 percent disabling (50 percent for service-connected PTSD, 10 percent for service-connected lumbar disability, 10 percent for service-connected migraine headaches, and 10 percent for service-connected numb and burning lips, and 0 percent for service connected dermatitis) from August 6, 2009 to November 29, 2011, and were rated at 30 percent prior to this time period. Consequently, prior to November 29, 2011, the Veteran did not meet the minimum schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extraschedular rating of unemployability. In a VA form 21-8940 "Application for Increased Compensation based on Unemployability" submitted in March 2009, the Veteran indicated she ceased employment in a customer service position as of February 2008. Evidence elsewhere in the record establishes that this is the last time the Veteran engaged in substantially gainful employment. She indicated she quit her job as a result of disability. At a VA examination in May 2008, the Veteran's low back disability was assessed. The Veteran's low back disability was found to have caused increased urinary frequency, numbness, paranesthesia, and unsteadiness. The severe pain associated with this disability was rated at 7 out of 10 constantly and limited daily functioning. The Veteran had moderate difficulty with shopping, recreation, traveling, and grooming; and severe difficulty with chores, exercise, sports, bathing, dressing, and toileting. The VA examiner found that pain from the Veteran's service-connected physical difficulties resulted in significant effect on employment. At a VA psychiatric examination conducted in December 2009, it was noted that the Veteran's physical limitations interfered with her ability to get or maintain employment. While the examiner did not find the Veteran's psychiatric symptoms to be of such a severity to warrant total occupational and social impairment, he found that her anxiety and depression led her to become socially isolated. She was no longer capable of maintaining friendships, did not enjoy going out with her husband, and all of her hobbies were solitary in nature. The VA examiner also found that the Veteran had lost all self-confidence and did not feel comfortable or motivated to seek employment out of fear of rejection. In a contemporaneous outpatient treatment record, the Veteran reported significant stress due to medical pains from her leg and back (both of which are service-connected). She processed her feelings of depression, isolation during the holidays, and a general lack of interest in socializing or participating in any real kind of activity. These symptoms were beginning to negatively affect her familial relationships. In April 2011, the Veteran was seen by VA for a chronic pain management consultation. The Veteran reported significant pain secondary to her low back disability causing frequent bedrest. She was observed ambulating with a cane. Regarding her migraine headaches, the Veteran experienced dizziness and blurry vision, often resulting in nausea. She also complained of an itchy, uncomfortable rash. The Veteran took psychiatric questionnaires revealing severe depressed mood and severe anxiety. Upon consideration, the Board finds that the aforementioned evidence suggests that the Veteran could be unemployable to her service-connected PTSD, low back disability, skin rash, and migraine headaches. While the Board is cognizant that the Veteran's non-service connected ankle and foot condition contribute to some of the Veteran's physical limitations, there is enough objective medical evidence of record to suggest that pain due to her low back disability, dizziness due to frequent migraine headaches, skin rash itching, and mental deficits such as depression, anxiety, loss of concentration, and memory lapses, potentially result in individual unemployability. Despite the Veteran's college education in journalism, the Veteran's service-connected disabilities may have resulted in deconditioning to the point that substantially gainful employment is no longer feasible. Accordingly, the Veteran's claim should be referred to VA's Director of Compensation and Pension Service for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer this claim to the Director of Compensation and Pension Service, pursuant to 38 C.F.R. § 4.16 (b), for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis, prior to November 29, 2011. This referral is mandatory, although the decision of whether to actually award an extraschedular rating remains with the Director, Compensation and Pension Service. 2. If the benefit sought on appeal remains denied, the Veteran should be provided a Supplemental Statement of the Case. After the Veteran and her attorney have been given the appropriate time to respond, the claim should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs