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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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pete992

Manlincon, Supra

Question

I am not really sure where this is going but, I hope it will be a positive action in my favor. My claims were remanded and VARO was ordered to re-adjudicate all the evidence for my claims for CUE and my reopen claims. I really like what BVA did for this veteran and hope it applies to me which I think it does.

Citation Nr: 0501517

Decision Date: 01/19/05 Archive Date: 02/07/05

DOCKET NO. 04-04 560 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Montgomery,

Alabama

THE ISSUES

1. Entitlement to a total disability rating for compensation

purposes on the basis of individual unemployability (TDIU).

2. Entitlement to an increased evaluation for service-

connected anxiety with depression, currently evaluated as 50

percent disabling.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Christopher B. Moran, Counsel

INTRODUCTION

The veteran retired from the Air Force in January 1991, after

having served over 20 years on active duty.

The Board of Veterans' Appeals (Board) notes that the issue

on appeal arose from a Department of Veterans Affairs (VA)

Regional Office (RO) decision in September 2003 which stemmed

from the veteran's claim filed on November 21, 2002. At that

time, the RO granted an increased rating from 30 percent for

anxiety with depression to 50 percent effective November 21,

2002.

In an October 2003 memorandum, the veteran's representative,

the Disabled American Veterans (DAV) requested that the

veteran's claim be expedited due to extreme financial

hardship since the veteran reported that he would be homeless

very soon.

In May 2004, the veteran attended a hearing before the

undersigned Veterans Law Judge of the Board sitting at the

VARO. The hearing transcript is on file. The veteran noted

in particular that his service-connected nervous disorder

precludes him from gainful employment. He noted being

released from employment due to problems with his nervous

disorder. He noted that he was currently unemployed.

The Board liberally construes the veteran's testimony to also

represent a notice of disagreement to the assignment of a 50

percent rating for service-connected anxiety with depression

by the RO in September 2003, in view of the fact that

unemployablity is contemplated within the schedular criteria

for rating mental disorders.

Where there has been an initial RO adjudication of a claim

and a notice of disagreement as to its denial, the claimant

is entitled to a statement of the case, and the RO's failure

to issue a statement of the case is a procedural defect

requiring remand. Godfrey v. Brown, 7 Vet. App. 398 (1995);

Manlincon v. West, 12 Vet. App. 238 (1999).

The issue of entitlement to an increased evaluation for

service-connected anxiety with depression is Remanded to the

RO via the Appeals Management Center (AMC), in Washington,

D.C. VA will notify you if further action is required on

your part.

FINDINGS OF FACT

1. Service-connection is in effect for anxiety with

depression, evaluated as 50 percent disabling; hypertension,

evaluated as 40 percent disabling; right shoulder limitation

of motion (major), evaluated as 10 percent disabling;

residuals of a right ankle sprain, evaluated as 10 percent

disabling; residuals of a right 5th metacarpal fracture,

evaluated as noncompensable; residuals of a fracture of the

left ankle, evaluated as noncompensable; hemorrhoids,

evaluated as noncompensable; burn scars, bilateral forearm,

evaluated as noncompensable; pseudofolliculitis barbae,

evaluated as noncompensable; and plantar wart of the left

foot, evaluated as noncompensable. The combined service-

connected disability evaluation is 80 percent.

2. The veteran became too disabled to work in approximately

in November 2002, has four years of college and occupational

experience as an assistant manager, manager, telemarketer,

and program director.

3. The competent medical evidence suggests that the

veteran's service-connected disabilities, including severe

depression, preclude all types of substantially gainful

employment.

CONCLUSION OF LAW

The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155,

5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16

(2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

Information of record shows that the veteran became too

disabled to work in approximately November 2002. He has four

years of college and occupational experience as an assistant

manager, manager, telemarketer, and program director.

An April 2003 VA psychiatric examination report shows that

the veteran retired from the Air Force in 1991 after 21 years

of service. He noted that he had a hard time adjusting since

retirement from the service which resulted in marital and

financial difficulties due to depression. He noted he had

been married for 13 years; however, during the marriage he

separated four to five times. He noted that he was currently

unemployed and faced homelessness. He noted having had 11

jobs in 11 years and was currently looking for work. He

recently filed for bankruptcy.

He noted that his major difficulty was depression. He

admitted to decreased mood, sleep, energy, interest, appetite

and concentration. He felt helpless and worthless. He

admitted to thoughts of suicide but none currently. He noted

that he was severely depressed. On mental status examination

he was alert and oriented. He was casually dressed. He made

fair eye contact and had a slumped over posture. There was

evidence of tearfulness during the examination. The

examination was positive for mild psychomotor slowing. His

speech was low and tremulous due to crying spells. Affect

was congruent. Thought content revealed thoughts of suicide

but no current suicidal ideation, homicidal ideations,

auditory or visual hallucinations. Thought processes were

negative for lucid disassociations. There was no evidence of

flight of ideas. He appeared logical and goal directed.

Insight and judgment were fair. The examiner noted that the

Global Assessment of Functioning (GAF) currently ranged from

50 to 55. The veteran was advised that if he developed

suicidal ideations to go to the nearest emergency room for

treatment. Also, the veteran was advised of the need for

followup psychiatric treatment for depression.

An April 2003 VA general medical examination report shows the

veteran was taking antidepressants and medication for

hypertension. He noted having difficulty getting along with

people and admitted to angry spells. He was concerned about

being unemployed. He was currently separated from his wife.

Following an objective evaluation, it was noted that his

depression with anxiety and hypertension were poorly

controlled. The examiner strongly urged the veteran to go to

his primary care physician for treatment of hypertension.

In August 2003, the veteran's claims file was reviewed by a

VA physician. Following his review of the record, the VA

physician essentially opined that the veteran has no

particular general medical problems preventing employment;

however, the veteran is totally disabled both physically and

mentally because of severe depression. It was noted that the

veteran needs help and is unable to function in society in

his current state.

The record contains an October 2003 statement from the

veteran's treating physician, a specialist in internal

medicine. The medical specialist opined that the veteran's

service-connected disabilities such as severe depression and

anxiety may have a negative impact on his ability to maintain

gainful employment. It was noted that when the veteran was

last seen in May 2003, he was having great difficulties with

depression, anxiety and sleep deprivation.

In May 2004, the veteran attended a hearing before the

undersigned Veterans Law Judge of the Board sitting at the

VARO. The hearing transcript is on file. He essentially

claimed that he was unable to work due to service-connected

disabilities.

Criteria

Total disability will be considered to exist where there is

present any impairment of mind and body which is sufficient

to render it impossible for the average person to follow a

substantially gainful occupation. 38 C.F.R. § 3.340.

Total disability ratings for compensation may be assigned,

where the schedular rating is less than total, when the

disabled person is unable to secure or follow a substantially

gainful occupation as a result of service-connected

disabilities, provided that the veteran meets the schedular

requirements. If there is only one service-connected

disability, this disability should be rated at 60 percent or

more, if there are two or more disabilities, at least one

should be rated at 40 percent or more with sufficient

additional service-connected disability to bring the

combination to 70 percent or more. The existence of

nonservice-connected disabilities will be disregarded if the

above stated percentage requirements are met and the

veteran's service-connected disabilities render him incapable

of substantially gainful employment. 38 C.F.R. § 4.16(a).

All veterans who are shown to be unable to secure and follow

a substantially gainful occupation by reason of service-

connected disability shall be rated totally disabled. Total

disability will be considered to exist 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.

If the total rating is based on a disability or combination

of disabilities for which the Schedule for Rating

Disabilities provides an evaluation of less than 100 percent,

it must be determined that the service-connected disabilities

are sufficient to produce unemployability without regard to

advancing age. 38 C.F.R. § 3.341.

In evaluating total disability, full consideration must be

given to unusual physical or mental effects in individual

cases, to peculiar effects of occupational activities, to

defects in physical or mental endowment preventing the usual

amount of success in overcoming the handicap of disability

and to the effects of combination of disability. 38 C.F.R. §

4.15.

In Fisher v. Principi, 4 Vet. App. 57 (1993), the United

States Court of Appeals for Veterans Claims (CAVC) held that

in a claim for a total rating for compensation purposes based

upon individual unemployability, if the rating did not

entitle the veteran to a total disability under 38 C.F.R. §

4.16(a), the rating board must also consider the

applicability of 38 C.F.R. § 4.16(. Under § 4.16(, the

Board must determine whether the veteran, on an

extraschedular basis, is unemployable by reason of his

service-connected disability.

The established VA policy is that all veterans who are unable

to secure or follow a substantially gainful occupation by

reason of service-connected disabilities shall be rated as

totally disabled under 38 C.F.R. § 4.16(. An

unemployability rating is based primarily upon average

impairment of earning capacity. 38 C.F.R. § 4.15. Total

disability will be considered to exist 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),

4.15.

Entitlement to individual unemployability must be established

solely on the basis of impairment from service- connected

disabilities. 38 C.F.R. § 3.341(a).

Neither disability from nonservice-connected disabilities or

due to advancing age may be considered. 38 C.F.R. §§

3.341(a), 4.19.

Under the provisions of 38 C.F.R. §§3.321, 3.340, 3.341,

4.16, 4.19 and Part 4, a total rating for compensation may be

assigned where the schedular ratings or rating for the

service-connected disability or disabilities is less than 100

percent when it is found that the service-connected

disabilities are sufficient to produce unemployability

without regard to advancing age.

The veteran's work history and educational background are

also given consideration. The authorizing statutory

provisions permit a combination of objective and subjective

criteria. Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).

The Board recognizes that an ability to work only a few hours

a day or only sporadically is not substantially gainful

employment. Substantially gainful employment is "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. Moore v.

Derwinski, 1 Vet. App. 356, 358 (1991). This suggests a

living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332

(1991). The ability to work sporadically or obtain marginal

employment is not substantially gainful employment. Moore v.

Derwinski, 1 Vet. App. 356, 358

Notwithstanding, a grant of a total rating based on

individual unemployability is dependent on a finding that the

individual meeting the schedular requirements is unable to

secure or follow substantially gainful employment as a result

of service-connected disabilities. Specific attention is

afforded the veteran's service-connected disabilities,

employment history, educational and vocational attainment and

all other factors having a bearing on the issue.

Determinations are made irrespective of the veteran's age.

VA will grant a total evaluation for compensation purposes

based on unemployability when the evidence shows that the

veteran is precluded from obtaining or maintaining any

gainful employment consistent with his education and

occupational experience, by reason of his service-connected

disabilities. 38 C.F.R. §§ 3.340, 3.341, and 4.16 (2004).

In Hatlestad v. Derwinski, 3 Vet. App. 213 (1992) and

Hatlestad v. Brown, 5 Vet. App. 529 (1995), the CAVC referred

to apparent conflicts in the regulations pertaining to

individual unemployability benefits.

Specifically, the CAVC indicated that there was a need for

discussing whether the standard needed in the controlling

regulations was an "objective" one based on average

industrial impairment or a "subjective" one based upon the

veteran's actual industrial impairment. Id.

Disability evaluations are determined by the application of a

schedule of ratings, which is based on the average impairment

of earning capacity. Separate diagnostic codes identify the

various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.

The GAF is a scale reflecting the "psychological, social, and

occupational functioning in a hypothetical continuum of

mental health-illness." Carpenter v. Brown, 8 Vet. App. 240,

242 (1995) [citing American Psychiatric Association,

Diagnostic And Statistical Manual For Mental Disorders 32

(4th ed. 1994)] (DSM-IV)].

Scores ranging from 41 to 50 reflect 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). Id.

When, after consideration of all of the evidence and material

of record in an appropriate case before VA, there is an

approximate balance of positive and negative evidence

regarding the merits of an issue material to the

determination of the matter, the benefit of the doubt in

resolving each such issue shall be given to the claimant. 38

C.F.R. §§ 3.102, 4.3 (2004).

The Secretary shall consider all information and lay and

medical evidence of record in a case before the Secretary

with respect to benefits under laws administered by the

Secretary. When there is an approximate balance of positive

and negative evidence regarding any issue material to the

determination of a matter, the Secretary shall give the

benefit of the doubt to the claimant. 38 U.S.C.A. § 5107

(West 2002).

Preliminary Matter: Duties to Notify & to Assist

The Veterans Claims Assistance Act (VCAA), Public Law No.

106-475, 114 Stat. 2096 (2000), substantially amended the

provisions of chapter 51 of title 38 of the United States

Code and, among other things, eliminated the requirement of a

well-grounded claim and enhanced the notice and assistance to

be afforded to claimants in substantiating their claims.

VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended

at 38 U.S.C.A. §§ 5103, 5103A (West 2002)). In addition, VA

has published regulations to implement many of the provisions

of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now

codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,

and 3.326(a) (2004)).

In view of the favorable decision cited below, the Board

notes that any VCAA notification deficiency and outstanding

development not already conducted by VA represents nothing

more than harmless error. See Bernard v. Brown, 4 Vet. App.

384 (1993),

TDIU

In reviewing the record, the Board notes that the veteran

retired from the Air Force in 1991, after having served over

20 years on active duty.

The record shows that the veteran's established service-

connected disabilities consist of anxiety with depression,

evaluated as 50 percent disabling; hypertension, evaluated as

40 percent disabling; right shoulder limitation of motion

(major), evaluated as 10 percent disabling; residuals of a

right ankle sprain, evaluated as 10 percent disabling;

residuals of a right 5th metacarpal fracture, evaluated as

noncompensable; residuals of a fracture of the left ankle,

evaluated as noncompensable; hemorrhoids, evaluated as

noncompensable; burn scars, bilateral forearm, evaluated as

noncompensable; pseudofolliculitis barbae, evaluated as

noncompensable; and plantar wart of the left foot, evaluated

as noncompensable. The combined service-connected disability

evaluation is 80 percent.

The record contains information that the veteran became too

disabled to work in approximately November 2002. On a recent

VA psychiatric examination, the veteran noted that he was

severely depressed. His speech was low and tremulous due to

crying spells. Affect was congruent. The reported GAF score

of 50 is shown to contemplate an inability to work. The

veteran has been advised of the need to go to the nearest

emergency room for treatment of any suicidal ideations.

Also, he was advised of the need for ongoing psychiatric

treatment for depression. A recent VA general medical

examination noted evidence of poorly controlled service-

connected anxiety with depression and hypertension.

A subsequent review of the veteran's medical records by a VA

physician led to the conclusion that the veteran is totally

disabled both physically and mentally because of severe

depression. It was noted that the veteran needs help and is

unable to function in society in his current state.

A recent statement from the veteran's private physician, a

specialist in internal medicine, includes an opinion that the

veteran's service-connected disabilities such as severe

depression and anxiety may have a negative impact on his

ability to maintain gainful employment. It was noted that

the veteran was having great difficulties with depression,

anxiety and sleep deprivation.

Following a comprehensive analysis of the record, including

information from his treating physician, as well as findings

recorded on the VA psychiatric and general medical

examinations and medical opinion based on a review of the

medical record, it becomes evident that the record contains

pertinent findings which may not be dissociated from service-

connected disorders, including service-connected depression

with anxiety and which do not permit the Board to conclude

that the preponderance of the evidence is against the veteran

on the issue of entitltement to a TDIU. Under such

circumstances, the award of a TDIU is warranted.

ORDER

Entitlement to a TDIU is granted, subject to the governing

criteria applicable to the payment of monetary awards.

REMAND

This claim must be afforded expeditious treatment by the

Veterans Benefits Administration (VBA) AMC. The law requires

that all claims that are remanded by the Board or CAVC for

additional development or other appropriate action must be

handled in an expeditious manner. See The Veterans'

Benefits Improvements Act of 1994, Pub. L. No. 103-446,

§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West

2002) (Historical and Statutory Notes).

In addition, VBA's Adjudication Procedure Manual, M21-1, Part

IV, directs the ROs (or VBA AMC) to provide expeditious

handling of all cases that have been remanded by the Board

and the CAVC. See M21-1, Part IV, paras. 8.43 and 38.02.

As the Board noted earlier, in September 2003, the RO granted

entitlement to an increased rating from 30 percent to 50

precent for service-connecetd anxiety with depression

effective November 21, 2002, date of receipt of the veteran's

reopened claim.

Based on testimony given by the vetean before the undersigned

Veteran's Law Judge of the Board in May 2004 which has been

incorporated into the written transcript of record, the Board

liberally construed the veteran's testimony to include notice

of disagreement to the assignment of a 50 percent scheduler

rating for service-connecetd anxiety with depression. The

veteran and his representative must be furnished an SOC on

such appealed issue. See Godfrey, Manlincon, supra.

To ensure full compliance with due process requirements, the

case is REMANDED for the following development:

1. The veteran has the right to submit

additional evidence and argument on the

matter or matters the Board has remanded.

Kutscherousky v. West, 12 Vet. App. 369

(1999).

2. The veteran and his representative

should be furnished a statement of the

case concerning the issue of entitlement

to an increased evaluation for service-

connected anxiety with depression. If,

and only if, a timely substantive appeal

is filed, this issue should be certified

to the Board for appellate consideration.

Thereafter, the case should be returned to the Board for

final appellate review, if otherwise in order.

____________________________________________

WARREN W. RICE, JR.

Veterans Law Judge, Board of Veterans' Appeals

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