Citation Nr: 18115232 Decision Date: 06/29/18 Archive Date: 06/29/18 DOCKET NO. 10-28 611 DATE: June 29, 2018 ORDER Entitlement to an initial disability evaluation for post-traumatic stress disorder (PTSD) with dysthymic disorder of 70 percent, but no greater, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Beginning on and after January 14, 2009, the Veteran’s service-connected PTSD symptoms more nearly approximates a disability picture manifest by psychiatric symptoms causing occupational and social impairment, with deficiencies in most areas; total occupational and social impairment is not shown. 2. The schedular criteria for TDIU are met and the evidence of record is at least in equipoise as to whether the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Beginning on and after January 14, 2009, the Veteran’s service-connected PTSD meets the requirements for a 70 percent disability evaluation, but no greater. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017) 2. The criteria for an award of entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (West 2016); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters are before the Board of Veterans’ Appeals (the Board) on appeal of an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The August 2009 rating decision granted a 30 percent disability evaluation for dysthymic disorder effective January 14, 2009 and denied service connection for headaches, allergies, skin problems, joint problems, gout, high blood pressure, kidney condition and sleep apnea. A December 2015 rating decision, in part, denied entitlement to a TDIU. In September 2017 the Board issued a decision denying an initial disability evaluation for PTSD with dysthymic disorder in excess of 30 percent, in excess of 50 percent effective February 10, 2012 and in excess of 70 percent on or after January 25, 2013, and remanding claims for service connection for headaches, allergies, skin problems, joint problems, gout, high blood pressure, kidney condition and sleep apnea, and entitlement to TDIU. In February 2018 the Board vacated its September 2017 decision only in relation to the issue of entitlement to an initial disability evaluation PTSD with dysthymic disorder in excess of 30 percent, in excess of 50 percent effective February 10, 2012 and in excess of 70 percent on or after January 25, 2013 in order to respond to an unfulfilled Freedom of Information Act (FOIA) request and for the completion of a 90-day extension request made by the Veteran’s representative in December 2017. The claims file shows that the AOJ responded to the Veteran’s FOIA request by a correspondence dated in December 2017. Furthermore, the 90-day extension period has expired. As stated above, all other issues were remanded by the Board in September 2017. As the agency of original jurisdiction has not yet completed action pursuant to the 2017 Remand, the Board will defer action on those matters. However, due to the favorable nature of the Board’s decision in regards to the Veteran’s TDIU claim, the issue of entitlement to TDIU will be discussed in this decision. 1. Entitlement to an initial disability evaluation for PTSD with dysthymic disorder in excess of 30 percent, in excess of 50 percent effective February 10, 2012 and in excess of 70 percent on or after January 25, 2013. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that “staged ratings” are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran’s PTSD has been rated as 30 percent disabling under Diagnostic Code 9411 prior to February 12, 2012, 50 percent disabling from February 12, 2012 through January 24, 2013 and as 70 percent disabling thereafter. Diagnostic Code 9411 provides for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent rating is appropriate where the evidence shows occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. The criteria provide for a 50 percent where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Finally, a 30 percent rating is appropriate where the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet App. 436 (2002). Prior to August 4, 2014, one factor in evaluating psychiatric disorders was the global assessment of functioning scale (GAF). The scale was meant to represent psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM - IV)). Under DSM-IV a GAF score between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A score in between 51 and 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). VA regulations were amended to remove references to the DSM-IV, and to replace them with references to the Fifth Edition of the same treatise (DSM-5). 79 Fed. Reg. 45,093-02, 45,094 (August 4, 2014). DSM-5 abandoned the global assessment of functioning score as a tool for evaluating the severity of psychiatric disorders. The Veteran filed his pending claim for an increased rating for PTSD before the effective date of the regulatory change. Since the regulatory change implementing the DSM-5 criteria applies only to applications for benefits received by VA on or after August 4, 2014, the Board may consider the global assessment of functioning scores in the Veteran’s treatment records and examination reports. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. a) PTSD Prior to February 10, 2012 Although the Veteran’s current PTSD symptoms are related to a flood he experienced in service, he did not file a claim for service-connected disability compensation for PTSD until January 2009. The RO granted this claim in August 2009 and assigned an initial disability rating of 30 percent effective January 14, 2009. The veteran filed a request for an increased rating for PTSD in December 2009. Upon careful review of the evidence of record, the Board finds that the objective medical evidence, and the Veteran’s statements regarding his symptomatology for the entire period on appeal, more nearly approximates symptoms associated with a 70 percent disability rating. The Veteran was afforded a VA examination in August 2009. According to his subsequent report, the examiner reviewed the VA treatment records and conducted an in-person interview. The report indicates that the Veteran was in a good marriage, had contact with all his children, had friends and held his current job for five years. The Veteran appeared clean and casually dress with unremarkable psychomotor activity, speech, thought process and thought content. He was also cooperative during the examination with appropriate affect, good mood, intact attention, judgment and insight, with average intelligence and orientation to time person and place. There were no delusions reported. However, the Veteran did report suicidal thoughts. The examiner also noted that the Veteran had distressing dreams, experienced poor sleep and short-term memory problems. The examiner wrote that the Veteran experienced intense psychological distress, feelings of detachment or estrangement from others and hypervigilance. However, it was noted that these disturbances did not cause clinically significant distress or impairment in social, occupational or other important areas of functioning. The examiner concluded that the Veteran did not meet the criteria for a PTSD diagnosis, but instead gave a diagnosis of dysthymia. In January 2011 the Veteran underwent a VA psychology assessment. The assessor reviewed the Veteran’s mental health history in detail. The Veteran was described as nicely dressed and well groomed, as well as cooperative and open. He was oriented in all spheres with no gross impairment in mental status. His mood ranged from dysthymic to agitated and affective full and congruent. There was no evidence of disorganization in thought content or process. His judgment and insight were fair. The Veteran denied psychotic symptoms, but did endorse having suicidal thoughts. The assessor wrote that the Veteran appeared to be experiencing significant symptoms of depression and some subclinical anxiety symptoms. He diagnosed the Veteran with dysthymic disorder and assigned him a GAF score of 60, moderate symptoms. b) PTSD for the period from February 10, 2012 to January 24, 2013 The Veteran was afforded a VA compensation and pension examination in February 2012. The examiner gave diagnoses of dysthymic disorder and alcohol abuse which included problems with insomnia, low self-esteem and depressed mood. He was assigned a GAF score of 65. His occupational and social impairment was described as having 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. It appears that the Veteran’s relationship with his spouse had deteriorated since his prior examination as it was noted that but he and his spouse often argued. He also maintained relationships with two of his three children, but was estranged from the middle child. Notwithstanding his difficulties with his family members, the Veteran played guitar at church and was in a band. While he reported difficulty staying awake at work, he continued to be employed as a truck driver, which he had done for the past seven years. The Veteran’s symptoms were noted as depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships and suicidal ideation. c) PTSD for the period from January 25, 2013 The Veteran was afforded another VA examination in January 2013. The Veteran had been married for 29 years with “ups and downs”. At times he “needs his space”, which could create tension in the marriage. He was employed as a street sweeper, a position which he had held for eight years, but found interacting with coworkers to be “trying”. The examiner diagnosed the Veteran with PTSD and noted that the Veteran’s symptoms meet the criteria for major depressive disorder. It was noted in the opinion that the Veteran experienced sadness, anhedonia, hopelessness, feelings of worthlessness, low self-esteem, low motivation, decreased appetite and social isolation. He was assigned a GAF score of 50, serious symptoms. The examiner reported that the Veteran’s depression and PTSD made it difficult for him to interact appropriately with others in social and occupational contexts. The Veteran’s intrusive thoughts, nightmares, hypervigilance, physiological arousal, irritability and avoidance of rain were all attributable to his PTSD. His occupational and social impairment was described as having deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner stated that the Veteran’s PTSD leads to re-experiencing his stressor, avoidance of situations, irritability, difficulty sleeping, difficulty concentrating on work-related tasks and interacting appropriately with others in social and occupational contexts. He also experienced panic attacks that occur weekly or less often, mild memory loss, flattened affect and suicidal ideation. The Veteran’s November 2014 VA treatment records note that he was employed as driver for the City of Austin. He has passive suicidal ideation approximately two times per month. He experienced panic attacks once a month. His speech was spontaneous and normal in volume and rate with logical, linear and goal directed thought process. He denied hallucinations or delusions and his insight and judgment were fair. The Veteran underwent his most recent VA examination in August 2015. At that time, he had left the home he shared with his wife and son to stay with relatives. He continued to enjoy playing music and occasionally played in clubs. He retired from his job in February 2015. The Veteran also reported suicidal ideation. The Veteran also submitted a copy of his February 2015 resignation letter from work, which cites mood swings and depression as reasons for his retirement. His symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect and difficulty in establishing and maintaining effective work and social relationships. In March 2018 the Veteran underwent a private PTSD examination. The examiner interviewed the Veteran in-person and reviewed his claims file and VA records. She evaluated the Veteran’s occupational and social impairment as occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. At the time of the March 2018 examination, the Veteran was living with his spouse and granddaughter. During the examination the Veteran admitted self-medication with alcohol. He visited a VA psychologist four times per year, a therapist as needed and had past participation in group therapy. The examiner found that the Veteran experienced recurrent and distressing recollections of the traumatic event, recurrent distressing dreams, acting or feeling as if the traumatic event were recurring including a sense of reliving the experience, illusions, hallucinations and dissociative flashbacks episodes, intense psychological distress at exposure to internal or external cues and physiological reactivity on exposure to internal or external cues. Furthermore, the Veteran made efforts to avoid thoughts, feelings or conversations associated with the trauma and to avoid activities, place or people that excuse recollections of the trauma. He also experienced inability to recall an import aspect of the trauma, markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affection and a sense of foreshortened future. The Veteran also had symptomology including difficulty falling or staying asleep, irritability or outburst of anger, difficulty concentrating, hypervigilance and exaggerated startle response. The March 2018 examiner also found that the Veteran experienced symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, disturbances in motivation and mood, difficulty in establishing or maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, neglect of personal hygiene and intermittent inability to perform activities of daily living. In a narrative statement included with the examination, the March 2018 examiner found that the Veteran’s symptom complex relates back to his original claim date in January 2009. He reports suicidal ideations without plan or intent. The Veteran also reported memory impairment such as losing his sense of direction while driving. In making this determination the examiner specifically cited the August 2009, February 2012, April 2014 and August 2015 VA examinations and their contents. She concluded that the symptomology cited had been present since his return from military service. Lay statements have also been submitted by the Veteran’s spouse and son and a former co-worker. His spouse’s February 2018 letter stated that he forgets a lot of things such as appointments and directions. She wrote that he struggles with communication, such as incoherent speech and difficulty comprehending conversations. He also becomes upset over small things, which results in isolation. She noted that the Veteran does not have friends and will not interact with visitors for long periods of time. The Veteran also must be reminded to shower and wear clean clothes. His spouse is largely responsible for daily activities. She also noted that he has been in this state and experienced these symptoms for at least 10 years. Many of these same symptoms and difficulties were echoed by a letter from the Veteran’s son dated in February 2018. His son also wrote that the Veteran had been experiencing these symptoms for 10 years or more. Therefore, based upon the Veteran’s symptoms during this period, the Board finds that the evidence most nearly approximates a continued 70 percent disability rating. As outlined above, the Veteran’s PTSD symptoms were manifested by occupational and social impairment, with deficiencies in most areas: including anxiety, mood liability, intrusive thoughts and suicidal ideation. Given the foregoing, the Board finds that the positive evidence is in a state of equipoise with the negative evidence regarding the Veteran’s claim of entitlement to an initial disability rating of 70 percent, but no greater, from January 14, 2009 for his PTSD with depression. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After resolving all reasonable doubt in the Veteran’s favor, the Board will conclude that effective from January 14, 2009, the Veteran’s symptoms are consistent with a 70 percent disability rating. The Board finds no credible evidence which would suggest the Veteran’s symptoms meet the criteria for a higher evaluation. The medical and lay evidence for this period is not indicative of someone with psychiatric symptomatology causing total social impairment, which is required for the 100 percent rating. 38 C.F.R. § 4.130. Specifically, there is no evidence of any delusions or hallucinations; no grossly inappropriate behavior; no “persistent” danger of hurting himself; no disorientation to time or place; and no memory loss for names of close relatives, own occupation, or own name. Id. Most significantly, the overall medical record does not show any periods of in-patient psychiatric hospitalizations or loss of functioning. The Veteran was treated on a regular out-patient basis. In light of the foregoing, the Board concludes that a rating in excess of the currently assigned 70 percent is not warranted at any time for the period from January 14, 2009. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran additionally seeks entitlement to an award of a TDIU. A TDIU may be assigned 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 their service-connected disabilities. 38 C.F.R. § 4.16 (a). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the Veteran is 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, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16 (a)(2) (2017). Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. While the regulations do not provide a definition of “substantially gainful employment,” the VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as “that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court of Appeals for Veterans Claims (“Court/CAVC”) defined “substantially gainful employment” as an occupation “that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income...” The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable, is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word “substantially” suggests intent to impart flexibility into a determination of the Veteran’s overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). But that said, as already eluded to, to receive a TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Furthermore, VA regulations provide that all Veterans who, in light of their individual circumstance, but without regard to age, are unable to secure and follow a substantially gainful occupation as a result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable under the circumstances. See VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. 38 C.F.R. § 4.16 (b). However, 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), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). As noted above, the Veteran submitted a copy of his February 2015 resignation letter from work, which cites mood swings and depression as reasons for his retirement. In his April 2015 VA 21-8940 Application for Increased Compensation Based on Unemployability, he noted that he last worked as a trash truck driver and that his service connected PTSD prevented him from securing or following any substantially gainful employment. He also noted that he had four years of high school education and one year of college education. The Veteran most recently underwent a private examination for PTSD in March 2018. The examiner found the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. In her assessment, the March 2018 examiner found that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. She noted that due to his PTSD symptoms, the Veteran cannot get restful sleep and is therefore fatigued nearly every day. With poor interpersonal skills and workplace trust issues, he would have an increase in paranoia and would struggle with appropriate work interaction. Also, his ongoing anxiety issues would be a safety hazard on the job. His physical signs of depression also manifest in extreme fatigue, hyper insomnia, appetite issues, weight fluctuation and emotional outbursts. An April 2018 private vocational assessment found that the veteran is unable to perform his past work or any other work due to his service-connected PTSD. The Veteran is totally and permanently precluded from performing work at a substantially gainful level. The preponderance of the evidence is in favor of the Veteran’s claim. Based on the March 2018 private PTSD examination and private and April 2018 private vocational assessment, the Board finds that a TDIU is warranted in this case. The Veteran meets the schedular criteria for a TDIU. The overall weight of the evidence is at least in equipoise as to whether the Veteran’s service-connected (CONTINUED ON NEXT PAGE)  disabilities preclude him from performing the physical and mental requirements of employment. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel