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Bva Granted Tdiu Under 38 Cfr 4.16B - Extra Schedular


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#1 carlie

 
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Posted 27 December 2011 - 09:55 AM

http://www.va.gov/ve...es4/1140265.txt

Citation Nr: 1140265

Decision Date: 10/28/11 Archive Date: 11/07/11

DOCKET NO. 08-31 749 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extraschedular basis.

REPRESENTATION

Appellant represented by: Georgia Department of Veterans Services

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Donna D. Ebaugh

INTRODUCTION

The Veteran served on active duty from November 1967 to September 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the RO in Atlanta, Georgia.

In January 2011, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record.

FINDINGS OF FACT

1. The record reflects that the Veteran completed the 10th grade and has experience working in various skilled labor jobs. He has not worked since approximately 2005.

2. Service connection is in effect for an acquired psychiatric disorder, rated as 50 percent disabling.

3. Based on the evidence of record, the Veteran's disability picture is so unusual or exceptional as to render impractical the application

of the regular schedular standards for determining entitlement to TDIU.

CONCLUSION OF LAW

The criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C.A. 1155 (West 2002); 38 C.F.R. 3.321(b)(1), 4.16(b) (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. 3.102, 3.156(a), 3.159 and 3.326(a) (2011). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

Entitlement to TDIU

A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. 1155 (2002); 38 C.F.R. 3.340, 3.341, 4.16, 4.26 (2011). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. 3.341, 4.16, 4.19 (2011); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).

TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. 4.16(a) (2011). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id.

In the present case, the Veteran has service-connected PTSD that is rated as 50 percent disabling. Therefore, the criteria for a total disability rating under the provisions of 38 C.F.R. 4.16(a) are not met.

Consequently, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability, for purposes of a possible extra-schedular evaluation. 38 C.F.R. 4.16(b) .

However, the Board itself cannot assign an extra-schedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although Bagwell and Floyd only dealt with ratings under 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension Service, in addition to Court precedents requiring consideration of 4.16(b) when the issue is raised in an increased-rating case. See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

That is, since the Board itself cannot assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. In fact, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). See also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C & P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. 511(a) , 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board.").

The Veteran has submitted evidence that he was unemployable due to his service-connected disability. Significantly, the June 2008 VA examiner indicated that the Veteran is unable to work due to his PTSD. The Board notes that the Veteran has also been diagnosed with depression and anxiety disorders in addition to his service connected PTSD. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, the Board will attribute all the Veteran's psychiatric symptoms to his service-connected PTSD residuals.

Where, as in this case, a Veteran fails to meet the applicable percentage standards, an extra-schedular rating is for consideration where the Veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. 4.16(b) (2011). Individual unemployability must be determined without regard to any non-service connected disabilities or a Veteran's advancing age. 38 C.F.R. 3.341(a), 4.19 (2011); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. 4.3 (2011).

While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides."

Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court 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 a Veteran actually works and without regard to a Veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability.

The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).

As noted above, the June 2008 VA examiner opined that the Veteran is unable to work due to his PTSD. Upon review of that opinion, the Board determined that his disability picture may be so unusual or exceptional as to render impractical the application of the regular schedular standards for determining entitlement to TDIU. Thus, in May 2011, the Board remanded this matter for additional consideration under 38 C.F.R. 4.16(b). The Board requested that the RO refer this matter to VA's Director, Compensation and Pension (Director) for a determination on whether an extraschedular rating would be appropriate. The Director responded to the Board's request in a July 2011 memorandum.

In the memorandum, the Director discussed the Veteran's entitlement to Social Security Administration Disability benefits due to severe anxiety as well as the June 2008 VA examiner's opinion that the Veteran is unable to work due to his PTSD symptoms. Despite the positive opinions supporting a finding of unemployability, the Director found that TDIU on an extraschedular basis was not warranted. The Director emphasized that the Veteran does not receive treatment or take medication for his acquired psychiatric disorder and has never been hospitalized for his psychiatric disorder. Further, he noted that during the Veteran's hearing before the Board, the Veteran indicated that he stopped working due to relocation from one state to another. He acknowledged an SSA determination that the Veteran was unable to work due to severe anxiety. However, he found that the objective findings on the June 2008 VA examination did not demonstrate that the service-connected disability alone prevented the Veteran from engaging in all types of work-related activities. The Director therefore concluded that the Veteran did not meet the requirements for an extraschedular total disability evaluation.

While the Board appreciates the reasoning of the Director that the Veteran's service-connected disability does not prevent him from engaging in all types of work-related activities, the Board finds other competent evidence of record to be more probative. In reaching its conclusion that the Veteran's disability picture is so unusual or exceptional as to render impractical the application of the regular schedular standards for determining entitlement to TDIU, the Board has considered private psychological examination reports dated in May 2005 and April 2006 as well as VA psychological examination reports dated in February 2006 and June 2008.

The May 2005 private psychological examination was conducted approximately one week prior to the Veteran's move out of state to be closer to his daughter. At that time, the Veteran reported that he had worked for the past 13 years for a pest control company. He also reported severe anxiety, depression and insomnia that were all related to his PTSD. He also reported feeling isolated, claustrophobic, feeling an increase in family conflicts, frequent flashbacks of combat experiences, frequent panic attacks, frequently hypervigilant and that he experienced sleep disturbances. Specifically, he reported that he slept with clothes on so that he could "be ready." He also recalled recurrent nightmares in great detail. The examiner also noted the Veteran's confusion with directions, impaired memory, poor recall, severe anxiety, occasionally violent explosive type temper, feelings of survivor guilt and occasional homicidal ideation. The private examiner diagnosed PTSD and noted that prognosis for any kind of recovery was guarded.

The Board has also reviewed a private psychological examination report regarding an examination in April 2006. At that time, the Veteran reported that he quit school in 10th grade and joined the service so that he could learn a trade. He reported that he never learned a trade but that the longest job he worked was 14 years doing pest control. He reported that he left the job due to performance issues because he could not concentrate due to his Vietnam experience and his son's death. He reported that he was yelled at, at work, and told to forget about Vietnam and his son.

Regarding current activities, in April 2006, the Veteran reported to the private examiner that he does not like going to doctors. He rejected medications for his mental health because they made him feel weird. He reported that he is able to manage his immediate personal needs and his activities of daily living without problems. He spends most of his time feeding animals and other activities in his barn when he has energy, which he reported was not very often. He reported that he watches television but loses concentration. He reported that he avoids places with crowds and that he hates driving. His wife drove him to the appointment for the psychological evaluation.

The April 2006 private examiner noted that the Veteran's speech was spontaneous with some pressure, he frequently sputtered and had word finding problems when seeking to express himself. There was a noticeable tremor. His responses were relevant and coherent although with some circumstantiality noted. His mood was very anxious and his affect somewhat labile and brittle. He sought to maintain a positive presentation. He appeared to be dealing with pride and shame issues associated with his application for Social Security Disability. The examiner noted that he did not appear to be exaggerating his symptoms or malingering in any way. There were noticeable signs of autonomic arousal whenever discussing Vietnam service or the death of his son. There was an exaggerated startle response as well. There were elements noted of survivor guilt and anger about his treatment upon his return from Vietnam. He reported that he does not sleep very well. He also has difficulty falling asleep and wakes early in the morning. He also reported nightmares of Vietnam experiences. He reported that he always had nightmares but that since his brother and son died, it was much worse. He also denied actual hallucinations but described hypnagogic experiences. The examiner concluded that the Veteran was overwhelmed by his survival of the Vietnam war and that his son's death exacerbated his feelings of being overwhelmed. His avoidance of treatment and rejection of medications are related to his overarching style of avoiding dealing with others about his personal experience and his maladaptive efforts to assert control. His degree of anxiety was so severe that he was not able to reliably attend to even the demands and details of any job that he is able to perform. He is consumed by his anxiety. The examiner opined that his anxiety will interfere with his ability to manage the interpersonal stresses associated with any employment situation. The Board finds the private opinion highly probative.

In February 2006, the Veteran underwent a VA psychological examination and reported that he had not worked in the last year because he did not get along with his bosses. He reported that his PTSD symptoms affected him at work such that he did not get along with people, was not able to focus, lost concentration and forgot important things for his job such as going to the correct house to conduct his pest extermination. He also reported that when he was working, he probably lost two weeks of work during the year due to bad feelings. He reported that he did not think he could handle another job.

The February 2006 VA examiner noted that the Veteran's PTSD had a moderate negative impact on his occupational functioning due to his difficulties concentrating, reduced motivation, history of difficulties getting along with coworkers and supervisors, reduced tolerance for frustration and interpersonal wariness. It was also noted that he attempted to cope with his difficulties in the past by obtaining employment that allowed him to work in a solitary fashion. The examiner concluded that the Veteran would be at high risk to produce a less than satisfactory work effort, to be unreliable and undependable in attendance and performance, and to have moderate difficulties interacting with supervisors, coworkers and the public. Consequently, it was felt that most likely he would encounter moderate to severe difficulties obtaining employment and or sustaining employment over the long run due to his acquired psychiatric disorder.

The Veteran underwent another VA psychological examination in June 2008. As noted above, the June 2008 VA examiner concluded that the Veteran was unemployable due to his service-connected PTSD. The June 2008 VA examiner based his opinion on a thorough interview with the Veteran wherein the Veteran reported his experiences in service and psychiatric history since service. The VA examiner considered the Veteran's subjective reports of psychiatric symptomatology and also objectively evaluated the Veteran's mental status. He noted that the Veteran was hyperalert with increased startle response every now and then but more frequent at other times. The Veteran's mood was frequently nervous with depressed feeling every now and then. His affect was constricted. Thought processes were intact and he was able to communicate. He denied hallucinations and had no suicidal or homicidal ideations. His orientation and memory were preserved and insight and judgment were intact. However, his PTSD symptoms did not remit but persisted. Finally, the VA examiner concluded that the Veteran was unable to work due to his PTSD symptoms. The Board finds the VA examiner's opinion highly probative.

The Board acknowledges that the Veteran's employer indicated that the Veteran last worked in 2004 and employment (at the aforementioned pest control company) ended because the Veteran moved out of state. (As an aside, the Veteran indicated that he last worked for the same pest control company in May 2005). Additionally, the Veteran testified at his hearing before the Board that he left his last job when he moved from Florida to Georgia. Transcript (T.) page 7. Notably, he testified that the reason for the move was because his son had died and his family thought it was best for him to move closer to his daughter because he was upset about the death of his son. Id. Indeed, a further review of the June 2008 VA examination report reveals that the reason he could not get along with his bosses is because he was upset about his son and experiences in Vietnam. The Veteran indicated that he was yelled at and told to forget about Vietnam and his son. Thus, the Board finds that the multiple factors surrounding the ending of his job do not reflect negatively on his credibility. To the contrary, the Board has considered the Veteran's statements and finds that his candor regarding the move, as well as his reports to the private psychological practitioners as well as the VA examiners regarding his state of mind, to be credible.

The Board has also considered the SSA disability decision noted above in which the Veteran was found to be entitled to disability. While not dispositive of the issue of the Veteran's employability, the Board finds the grant of SSA disability due to anxiety, to be probative.

The Board also acknowledges a July 2006 private examination regarding physical and mental health complaints where the examiner did not draw conclusions regarding employability and noted that the Veteran did not appear to be overly depressed. Notably, the examiner recommended that the Veteran contact VA for further psychological evaluation.

The Board finds no adequate basis to reject the competent medical evidence and June 2008 VA medical opinion that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Indeed, the Board finds the private psychological opinions, February 2006 VA opinion, and June 2008 VA opinion to be highly probative. The Board also finds the Veteran's sworn testimony to be credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance").

Based on the foregoing, the Board concludes that the Veteran's disability picture is so unusual or exceptional as to render impractical the application of the regular schedular standards for determining entitlement to TDIU. Accordingly, giving the Veteran the benefit of the doubt, the Board concludes that his service-connected disability precludes substantially gainful employment consistent with his education and occupational experience, and that entitlement to a total disability rating based on individual unemployability due to service-connected disability on an extraschedular basis is warranted.

ORDER

Entitlement to a TDIU is granted, subject to governing criteria applicable to the payment of monetary benefits.

____________________________________________

MICHAEL A. HERMAN

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs