Citation Nr: 1805901 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 07-17 344A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a total disability rating for individual unemployability (TDIU) prior to May 3, 2011. 2. Entitlement to an effective date prior to May 3, 2011, for the grant of service connection for a cognitive disorder not otherwise specified (NOS) secondary to service-connected organic brain syndrome. REPRESENTATION Appellant represented by: Ralph Bratch, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2008 and March 2014 rating decisions of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ) who is no longer employed with the Board. A transcript of the hearing is of record. A June 2017 letter informed the Veteran that the VLJ who had held the hearing had left the Board and provided the Veteran the opportunity to have another hearing before a different VLJ. The Veteran responded in July 2017 indicating that he did not wish to appear at another Board hearing and to consider his case on the evidence of record. Thus, the Board will proceed with the adjudication of the Veteran's claim. The Veteran's claim for entitlement to TDIU prior to May 3, 2011, was previously before the Board in March 2015. As discussed below, the requested development was substantially complied with and the claim is ready for appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to an effective date prior to May 3, 2011, for the grant of service connection for cognitive disorder NOS is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record is at least in equipoise that the Veteran's service-connected organic brain syndrome has been shown to render him unemployable considering his educational and occupational background from September 29, 1987. CONCLUSION OF LAW The criteria for the grant of TDIU due to the Veteran's service-connected organic brain syndrome are met from September 29, 1987. 38 U.S.C. § § 1155, 5107 (West 2014); 38 C.F.R. § § 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Criteria Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. In such an instance, if there is only one service-connected disability, as in the present case, it must be rated at 60 percent or more. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a TDIU due solely to the service connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The Veteran is seeking entitlement to TDIU prior to May 3, 2011. For that period, his only service-connected disability was organic brain syndrome rated as 10 percent disabling prior to October 23, 2008, and 40 percent thereafter. Therefore, the statutory criteria set forth in 38 C.F.R. § 4.16 (a) were not met. If a Veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director, Compensation Service, for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). II. Analysis The evidence of record is at least in equipoise that the functional limitations imposed by the Veteran's service-connected organic brain syndrome precluded the performance of substantially gainful employment from September 29, 1987. By way of procedural history the first correspondence VA received from the Veteran was his claim for loss of balance dated September 21, 1987, and received by the RO in October 1, 1987, later characterized as organic brain syndrome, in which the Veteran indicated he was currently not employed. The Veteran's claim for entitlement to service connection for organic brain syndrome was granted effective September 29, 1987. The Board finds that an inferred claim for a TDIU has been raised as of that date pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran asserted he was unemployable because of the organic brain syndrome; and the effective date for the grant of service connection for organic brain syndrome was ultimately determined to be September 29, 1987. Throughout the period on appeal the Veteran has been provided with VA treatment and examinations. The Veteran was provided with a December 1987 VA examination. The Veteran reported a loss of balance and coordination. The examiner indicated the Veteran's lack of coordination would cause him difficulty with employment that required detailed coordination work but that any other employment activity would be tolerable. The Veteran's neurological functions were otherwise noted to be normal. The Veteran was provided with a separate December 1987 VA examination. The examiner noted the Veteran's memory had no deficiencies for recent or remote events. He was able to maintain compression and attention during the examination and revealed a good general fund of knowledge. The examiner indicated the Veteran had generalized anxiety with a history of some depression in the past relative to circumstances of his broken marriage. The Veteran reported problems with his balance and vision and that he had been unable to work because of these conditions. In a July 1988 VA examination the Veteran endorsed headaches, balance issues, double vision, an inability to use his left arm, back pain, and pain in right wrist and ankle. The examiner indicated the Veteran's intellectual functioning was average. Additionally, the Veteran was provided with a December 1989 VA examination. The Veteran continued to report loss of balance and a short temper. The examiner diagnosed the Veteran with organic personality syndrome. Thereafter, the Veteran was provided with an April 1996 VA examination. The examiner diagnosed the Veteran with organic affective syndrome. The examiner noted the Veteran scored slightly lower than would be expected of someone his age and education level on the mini mental status examination. The Veteran's recent memory was noted to be not entirely intact. The Veteran's insight into his situation appeared to be limited but his judgement for ordinary life situations did not appear to be significantly impaired. The Veteran was provided with a March 1988 VA examination. The Veteran's psychomotor activity level was noted to be normal. His associative processes were tight, coherent, logical, and goal-directed at all times. The Veteran's tone of speech was viable reflecting a full range of affect. The Veteran was noted to worry excessively about everything and reported feeling keyed up and on edge all the time. The Veteran's remote and recent memories were intact. The Veteran was provided with an October 2007 VA examination. The Veteran reported his symptoms had increased in severity and that he felt dizzy, unbalanced, worthless, hopeless, and helpless. A June 2009 VA treatment record noted the Veteran had symptoms of weakness of the left side of the body, headaches, and poor balance. The Veteran was noted to have mild to moderate recent memory loss. He could not recall one of the three objects given to him after a couple of minutes. The examiner concluded the Veteran's problems with headaches, dizziness, and lack of concentration could interfere with employment but does not preclude it. In addition the Veteran has submitted several private treatment records and opinions in support of his claim. An August 1987 private treatment record noted that the Veteran did not have any significant gross physical deficiencies but did have a loss of balance. The Veteran submitted a May 2011 private examination. The private examiner noted the Veteran worked from 1969 through 1987 but that he could only hold jobs for a few weeks to a few months. The Veteran reported he would be fired due to not being able to physically do the job, including dropping things, loss of coordination, and being argumentative with coworkers. The examiner noted the Veteran had difficulty with word finding and distractibility. The Veteran was noted to present with conversational speech that was coherent with some difficulty with enunciation. The examiner noted that during more time-pressured or difficult tasks the Veteran struggled to come up with words and paused mid word on occasion. The examiner noted the Veteran's comprehension during the interview was adequate but that more complex directions needed repetition on testing. The Veteran's gait was notable for a general unsteadiness and a prominent lean to the left which led to bumping into walls. P.S., a Clinical Neuropsychologist provided a July 2014 private opinion. P.S. stated the Veteran's service treatment records (STRs) show impaired cognitive and emotional sequelae that would impede employment. The examiner noted the Veteran was unable to engage in sustained remunerative employment due to neurological problems. P.S noted the Veteran's balance problems. P.S. concluded the Veteran had been unable to hold a job due to his organic brain syndrome, present since his active service. The Veteran's claims file also contains employment records. The Veteran's most recent employer, Foodway National Corporation, submitted documentation indicating that the Veteran worked there from July 1985 to February 1987 and took a total of four weeks of sick leave. The Veteran's employer indicated his employment ended in February 1987 when he quit. An April 1988 record from the Ohio Rehabilitation Services Commission indicated the Veteran was not able to obtain and maintain competitive employment due to his present physical circumstances and the work related difficulties coming from those disabilities. The Veteran has provided several statements regarding his employability. The Veteran was provided with a May 1988 hearing at the RO in connection with a claim for nonservice-connected pension. The Veteran stated he could not work because his left arm and legs would give out. The Veteran stated he was fired from his previous jobs due to his vision problems related to his organic brain syndrome. The Veteran reported he had recently been working unskilled labor jobs part time but has been fired because he was unsuitable for them due to his frequent dropping of items. The Veteran was provided with a December 1990 and December 1997 RO hearings in which he consistently reported symptoms of immobility, coordination, and balance problems. At the May 2011 Board hearing, the Veteran testified that his mind wanders off when he is trying to listen to someone. The Veteran indicated he cleans his apartment, does laundry, and watches television but if an activity falls outside of his normal routine he has an issue completing it. The Veteran endorsed coordination difficulties on the left side of his body and double vision. The Veteran stated these difficulties had been occurring since 1987. The Veteran's claim for entitlement to TDIU prior to May 3, 2011, was most recently before the Board in March 2015 at which time it was remanded in order to obtain an opinion from the Director of Compensation Services as to whether the Veteran was entitled to TDIU on extraschedular basis. The Director of Compensation Services provided an April 2017 opinion as to the Veteran's employability. The Director determined that the Veteran was not entitled to TDIU prior to May 3, 2011. The Veteran last reported work in 1987 as a warehouse handler and machine operator. The Veteran reported memory loss, anxiety, loss of balance, and depression. The director referenced the medical evidence of record and concluded that the record does not show that the Veteran was precluded from sedentary employment prior to May 3, 2011. The Board finds that despite not having met the schedular criteria of 38 C.F.R. § 4.16 (a) that the Veteran's service-connected organic brain syndrome precluded him from following a substantially gainful occupation prior to May 3, 2011. 38 C.F.R. § § 3.340, 4.15, 4.16(b). The evidence of records clearly indicates that the Veteran's service-connected organic brain syndrome has an impact on his employability; however, there is conflicting evidence as to whether this disability precluded employment. The Veteran's VA treatment records indicated that the symptoms of his service-connected organic brain syndrome, to include balance and coordination difficulties, memory loss, and difficulty gripping items, had a negative impact on his ability to maintain employment but did not preclude it and the Veteran's statements and private treatment records indicate his organic brain syndrome symptoms did preclude him from employment. Therefore, the Board finds the evidence is in relative equipoise as to whether the Veteran's service-connected organic brain syndrome precludes employability. As such, the claim for entitlement to an effective date prior to May 3, 2011, for the grant of TDIU is granted on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16 (b). The Board acknowledges the Veteran's attorney's argument that the effective date of the award of TDIU should be September 21, 1987, the date noted on the form claiming service-connection for "loss of balance" received by the RO on October 1, 1987. See August 2017 Appellant Brief. The Board notes the Veteran is being granted an earlier effective date for TDIU on the basis of his service-connected organic brain syndrome, which was assigned a rating effective September 29, 1987. See Rice, 22 Vet. App. at 447. As such, the effective date of the grant of TDIU based on his service-connected organic brain syndrome cannot be September 21, 1987 as it is before September 29, 1987. Therefore, the Board finds an earlier effective date of September 29, 1987 is warranted for the grant of TDIU. ORDER Entitlement to a TDIU is granted from September 29, 1987, under the provisions of 38 C.F.R. § 4.16 (b), subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran is currently seeking entitlement to an effective date prior to May 3, 2011, for the grant of service connection for a cognitive disorder not otherwise specified (NOS) secondary to organic brain syndrome. In March 2014 the RO granted service-connected for a cognitive disorder effective May 3, 2011, as that was stated as the date the Veteran was first diagnosed with a cognitive disorder. However, the Board notes an August 2010 supplemental statement of the case (SSOC) that addressed an increased rating for the Veteran's service-connected organic brain syndrome included consideration of the presence of a cognitive disorder as the basis for the evaluation. In order to avoid rating the same disability under several diagnostic codes the Veteran's claim must be remanded in order for the RO to clarify whether his organic brain syndrome rating considers the impact of a cognitive disorder and thereby implies the presence of a cognitive disorder prior to May 3, 2011. Accordingly, the case is REMANDED for the following action: 1. Review the August 2010 SSOC and corresponding rating decision which assigned the Veteran's current rating for his service-connected organic brain syndrome and determine whether a cognitive disorder was present at that time and assign the appropriate rating for his service-connected organic brain syndrome and cognitive disorder NOS. 2. After completing the above and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted, he and his attorney should be provided with a supplemental statement of the case. Allow the appropriate time for response then return the case to the Board. 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 of Veterans' Appeals 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs