HadIt.com Elder Josephine Posted December 24, 2006 HadIt.com Elder Share Posted December 24, 2006 (edited) Am I wrong? Did the BVA accept the word of this Internist for treating Anxiety and Depression? Why did the R. O turn him down? 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 Department of Veterans Affairs Thanks, Josephine Edited December 25, 2006 by Josephine Link to comment Share on other sites More sharing options...
HadIt.com Elder LarryJ Posted December 24, 2006 HadIt.com Elder Share Posted December 24, 2006 I keep looking at this, and reading it over several times. It looks to me like the Vet applied for an increase in his % for depression, from 30% to 50% which the RO granted him. And, then, the Vet filed a NOD of the 50% rating, but did not request a TDIU. During the hearing before the judge, the Vet indicated that he was unemployed, had trouble maintaining employment, etc., which the judge thereby decided to construe this testimony as a seperate, but unstated, claim for TDIU. The Vet's med recs from all his docs, including his private Internal Medicine doctor and the VA doctors, indicate that he is, in fact, unemployable. So, the BVA awards him TDIU, and because the RO did not issue him a SOC, they remanded the initial NOD to the RO. A win-win situation, so far, for the Vet. One time the BVA actually acted in the manner intended. My hat's off to the judge. Link to comment Share on other sites More sharing options...
HadIt.com Elder Josephine Posted December 24, 2006 Author HadIt.com Elder Share Posted December 24, 2006 I posted this on line. My hats off to the Judge also. Perhaps the BVA is not all bad. The Judge did the right thing for this poor guy! Josephine Link to comment Share on other sites More sharing options...
HadIt.com Elder LarryJ Posted December 25, 2006 HadIt.com Elder Share Posted December 25, 2006 Of course, this brings up a very pertinent question: Where was the DAV on this? And WHY did the BVA have to take care of this poor dude on their own, how come the DAV didn't take care of this by filing for what the dude was really needing? Link to comment Share on other sites More sharing options...
HadIt.com Elder Josephine Posted December 25, 2006 Author HadIt.com Elder Share Posted December 25, 2006 (edited) I think that the Veteran Organizations are set in their positions for life and don't really go out of their way to help anyone. I know that I have a representative in name only. I do all the research and all the working on my claim myself. I don't trust any of them to do anything for me. This poor guy wasn't capable of doing for himself and the BVA Judge saw this and took over for him. This case speaks highly of the BVA. Perhaps we aren't in such bad hands after all. Always, Josephine Edited December 25, 2006 by Josephine Link to comment Share on other sites More sharing options...
Question
Josephine
Am I wrong? Did the BVA accept the word of this Internist for treating Anxiety and Depression? Why did the R. O turn him down?
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
Department of Veterans Affairs
Thanks,
Josephine
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