So now the bva can say the benefit of doubt isn't applicable in veteran claims

[Mr cue]

Ok this is crazy I have never seen this before in any of my case.

Ok this is the bva decision on my increase on the adjustment disorder and I guess the decision for smc l

Need of help for this condition.

 

 

The Board acknowledges the Veteran’s assertions of entitlement to an increased rating.  Further, the Board notes that the treatment records demonstrate that the Veteran had symptoms associated with both a 70 percent disability rating, such as obsessional rituals which interfere with routine activities and near-continuous panic or depression affecting the ability to function independently, and symptoms associated with a 100 percent disability rating, such as intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  However, the weight of the medical and lay evidence shows that the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent disability rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent disability rating, throughout the period on appeal.  See 38 C.F.R. § 4.1

  Based on the foregoing, the Board finds the Veteran’s adjustment disorder symptomology has been productive of, at most, occupational and social impairment with deficiencies in most areas during the entire appeal period. As such, a rating in excess of 70 percent for the Veteran’s service-connected adjustment disorder with depressed mood is not warranted at any time. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The claim must be denied. 

 

I have never seen a bva decision like this.

First told I meet both the 70 and 100 rating.

What happen to the veteran will be give the higher of the two rating

Then when is it that the bva can say the benfit of the doubt don't apply in my case. Smh never seen that before on no decision. I might be wrong

It will be remand by the court again for them to play more games  smh

 

 

[Berta]

You
"Posted 1 hour ago
https://community.hadit.com/topic/86550-so-now-the-bva-can-say-the-benefit-of-doubt-isnt-applicable-in-veteran-claims/#comment-516232

Here is the docket  No. 21-00 585"

That is not a valid docket # and I coudnt ind it anywhere else in your posts.

21 is the year of the Docket and then there are ,after a hyphen, three numbers , another hyphen- then 3 more numbers.

[Mr cue]

Here is the whole decision

Docket No. 21-00 585 Advanced on the Docket     

 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2021 when it was remanded for the issuance of a Statement of the Case (SOC).  The SOC was issued in May 2021 and the Veteran filed his formal appeal that month.  Accordingly, it has returned for adjudication. Entitlement to an initial disability rating in excess of 70 percent for service connected adjustment disorder with depressed mood The Veteran asserts that an increased initial disability rating is warranted for his service-connected adjustment disorder with depressed mood. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.   The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s adjustment disorder with depressed mood is currently assigned an initial 70 percent disability rating pursuant to Diagnostic Code 9440 for chronicadjustment disorder.  Under 38 C.F.R. § 4.130, psychiatric disabilities are rated based on the General Rating Formula for Mental Disorders (General Formula) which provides disability ratings based on a spectrum of symptoms. Under the General Formula, a 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.  Id. A 100 percent evaluation is indicated where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  See Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be due to those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence of record, the Veteran was afforded a VA examination in June 2018 to assess the severity of his mental disorder. At that time, the Veteran reported being discharged from service after a suicide attempt that he related to an injury and subsequent antagonization by his fellow trainees. He stated that he was once married but divorced in 1998 after having 2 children. He has another child from his last relationship. He stated that he has had limited work opportunities. Notably, he tried to go to welding school but was unable to complete the curriculum due to his left arm disability. He attended ITT Technical Institute in 2000 but did not graduate. The Veteran reported a previous substance abuse problem but stated that he has not used it or alcohol in the previous 15 years. The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and obsessional rituals which interfere with routine activities. The Veteran also indicated that he had not dated since his previous engagement ended in 2013. The examiner found the Veteran capable of managing his financial affairs. The examiner opined that the Veteran’s level of occupational and social impairment with regards to his mental diagnoses was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was afforded an additional VA examination in July 2019. The Veteran reported sadness “every other day” off and on throughout the day with an increased frequency since his previous examination. He reported a low mood and loss of interest in his usual activities. He stated that he was getting less pleasure out of life and endorsed symptoms of occasional crying spells, change in appetite with weight loss, sleep disturbance, alternating psychomotor agitation and retardation, low energy/fatigue, feelings of worthlessness, low self-esteem, difficulty concentrating, feelings of hopelessness, and recurrent thoughts of death. He denied current suicidal ideation, but stated he was getting there. The Veteran stated that he hadproblems falling asleep, would sleep 4 or 5 hours per night, and then feel tired in the morning.  He took naps almost every day.   The Veteran stated that he frequently had difficulty completing tasks at home due to symptoms of depression.  The examiner noted that the Veteran had major depressive disorder, which was a progression of his previously diagnosed adjustment disorder with depressed mood.  The Veteran reported that it was difficult for him to control his worry and that he had restlessness, was feeling on edge, was easily fatigued, had difficulty concentrating, irritability, muscle tension, and sleep disturbance.  The Veteran further had panic attacks 3 or 4 times per week since he started living alone without daily assistance the previous 5 to 6 years.  The Veteran stated that he was not currently in a relationship and that while his 3 children all live locally, he had not seen any of them in at least 2 months.  He had occasional phone contact between visits and called his relationship with his children “fair.”  He further indicated he had no relationship with his half-sister but had visits with his aunt twice a week when she would make him a meal.  The Veteran denied having any close friends or acquaintances but while he was frequently alone, he did not prefer it.   The Veteran’s most recent employment was in 1993 in the military.  He denied any mental health counseling since his previous examination.  The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, impairment of short- and longterm memory, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting.  On observation, the Veteran was alert and oriented, casually dressed, and appropriately groomed.  The Veteran began crying when talking about his decreasing ability to care for himself and increased need for aid.  The examiner found the Veteran capable of managing his financial affairs.  Regarding his judgment, the Veteran reported getting in a verbal argument with a stranger on one occasion but denied any physical violence towards others or thoughts of hurting others or himself.  The examiner found that the Veteran’s mental health symptoms frequently interfere with his ability to complete tasks at home.  The Veteran spends his days watching television, online on the phone, and occasionally playing video and computer games.  He showered daily and left the house every day for various activities.  He has no hobbies.  He went to appointments twice per week, but his aide does errands and grocery shopping for him.  He indicated that he does not feel like a productive or reliable person.  The examiner opined that the Veteran’s symptoms of major depressive disorder cause the Veteran to experience severe occupational impairment due to difficulty completing tasks, establishing and maintaining work relationships, and managing his emotions.  He further exhibited severe impairment in family functioning, with little personal relationships.  The examiner found the Veteran’s level of occupational and social impairment best summarized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.    VA treatment records during the appeal period do not demonstrate treatment for or complaints of adjustment disorder symptomatology.  The Veteran was described as alert and oriented during treatment in May 2020 and despite requesting a referral to mental health, he no-showed to an outpatient mental health appointment scheduled in June 2021. After a review of the above, the Board finds that the evidence does not support a disability rating in excess of 70 percent for the Veteran’s adjustment disorder at any point during the appeal period.  Throughout the period on appeal, the Veteran’s mental disability has been characterized by depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances.  The Veteran has not displayed symptoms more nearly approximated by total occupational and social impairment, consistent with a 100 percent evaluation. Notably, while the Veteran reported impaired ability to maintain his personal hygiene, he indicated that such was a result of his neck and shoulder disabilities.  Additionally, while the July 2019 VA examiner indicated that the Veteran’s mental disabilities would “frequently interfere with his ability to complete tasks at home,” he was found capable of managing his financial affairs and indicated that he showered and left the house daily for “various activities.”  Further, while the Veteran was not shown to work throughout the period on appeal, and the examiner noted that his adjustment disorder would have a “severe” impact on his ability to maintain employment, there is no indication that such would totally impair his employment. Indeed, the Veteran noted that he was unable to complete welding school related to his physical impairments. Finally, there is no indication that he was considered a threat to himself or others during this period. While there was a one-time incident of a verbal altercation during the appeal period, he denied any instances or thoughts of physical violence towards himself or others. He was noted to have at least minimal relationships with his aunt and children and described the relationships in positive terms, despite not seeing them very frequently. There is no evidence that he experienced delusions or hallucinations and he was described as oriented in all spheres. The Board acknowledges the Veteran’s assertions of entitlement to an increased rating. Further, the Board notes that the treatment records demonstrate that the Veteran had symptoms associated with both a 70 percent disability rating, such as obsessional rituals which interfere with routine activities and near-continuous panic or depression affecting the ability to function independently, and symptoms associated with a 100 percent disability rating, such as intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. However, the weight of the medical and lay evidence shows that the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent disability rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent disability rating, throughout the period on appeal. See 38 C.F.R. § 4.126.Based on the foregoing, the Board finds the Veteran’s adjustment disorder symptomology has been productive of, at most, occupational and social impairment with deficiencies in most areas during the entire appeal period. As such, a rating in excess of 70 percent for the Veteran’s service-connected adjustment disorder with depressed mood is not warranted at any time. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The claim must be denied.

CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Connor, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.   

I understand that this will be remand again.

First they understand that my depression effects my adl I was send to a comp exam for this.

Smc l need of help of other remember to take medicine hazard to one self etc.  They didn't infer it or denied it

They stated I meet both the 70 and 100.

So a veteran gets the higher of the two rating.

Then to say the benfit of the doubt don't apply and not explain why.

And last they do not address that the claim was reopen because of new service records.

This is were the effective date issue come into play.

 

 

[deedub75]

2 hours ago, Mr cue said:

Here is the docket  No. 21-00 585

I reopen the claim after it was denied 2001.

2018 It was reopen because of new service records that I provided.

Ever since they reopen it they have been all over the place.

They will not address that it was a claims reopen do to new service records or the effective dates.

Now I am told I meet both 70% and 100%. Rating.

And now I am been told I don't get benefit of doubt.

An guess the law were if there is a question on which rating apply to a veteran.

The veteran will be give the higher rating this law.

I don't understand why I would need imo.

To get a effective date by law.

And to be granted the higher of two rating.or to be give the benefit of doubt.

Last I will posted the smc s award were they shift my tdiu to the adjustment disorder to grant 3 month of smc s.

Ok if the adjustment disorder is so disabling that it meet the cretria for tdiu.

Why is it rated total than.

Well I am back at the cavc again and it will be remand again.

 

 

It didn't say you met both the 70% and the 100% rating. It said you have symptoms of both but your symptoms are less severe than the 100% rating. I don't see where benefit of doubt would apply here based on the information you've provided. It says your symptoms are less severe, less frequent, and shorter in duration than that required for the 100% rating. You need an IMO and/or evidence to show the contrary.  

[Mr cue]

Ok I need a imo I will find some one to do it.

Who should I pay smh

I am from the old school law win case.

 

 

Like I said show me one bva decision where it say the benefit of the doubt is not applicable in a case.

You can't

If you have system from both rating codes  I think you get the higher of the two by law right.

What evidence did they use to get duration. It was never address 

I don't have a medical report that state this or did any of my comp exams.

So now a judge is a medical expert to and can give my durtion lol.

It call the law it will be remand by the court again.

I just be pointing out thing to help others

 

 

[Mr cue]

Here is my extra schedulers tdiu rating 8 years retro pro se.

This is how you get equitable

This is how you get the benefit of doubt.

And I didn't need to get a Imo I USED THE LAw.

 

Citation Nr: 1212024	
Decision Date: 04/02/12    Archive Date: 04/11/12

DOCKET NO.  09-19 043	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Buffalo, New York


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to August 16, 2001.


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

Appellant (the Veteran) had active service from October 1, 1993 to December 13, 1993.  

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

In December 2009, the Board remanded this appeal for additional evidentiary development.  In May 2011, the Board again remanded the claim for corrective action regarding the previous remand.  The appeal has since been returned to the Board for further appellate action.

In addition to remanding the claim listed above, in December 2009, the Board also granted service connection for a left elbow disability, granted an increased initial rating of 20 percent, prior to August 16, 2001, for the Veteran's service-connected cervical spine disability, and denied a disability rating in excess of 60 percent for a cervical spine disability since August 16, 2001.  In January 2010, the Veteran filed a motion for reconsideration of the Board's denial of an increased initial rating higher than 20 percent, prior to August 16, 2001.  In September 2010, the Board denied the motion.  Thus, there are no pending appeals regarding increased ratings for the cervical spine disability.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the appeal has been accomplished.

2.  The evidence for and against whether, from December 14, 1993 to August 16, 2001, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation is in equipoise.  



CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, from December 14, 1993 to August 16, 2001, the criteria for TDIU were met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011).  

As the Board is granting TDIU from December 14, 1993 to August 16, 2001, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

TDIU - Law and Regulations

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate "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)(1), 4.15 (2011).

Substantially gainful employment is that employment "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 (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider.  Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2011).

Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321.

For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (the CAVC) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the CAVC indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment.  The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA.  38 U.S.C.A. § 7104(c) (West 2002).  In a pertinent precedent decision, the VA General Counsel interpreted the controlling VA regulations as generally providing that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  The VA General Counsel also interpreted "unemployability" as synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.

Analysis of Entitlement to TDIU

During the period prior to August 16, 2001, two service-connected disabilities must be considered - cervical spondylosis with chronic muscle strain of the left neck, rated at 20 percent disabling, effective December 14, 1993, and residuals of a left elbow fracture with paresthesias, rated at 20 percent disabling, effective December 14, 1993.  Therefore, with respect to this period, the Veteran does not meet the schedular criteria for consideration of TDIU.  See 38 C.F.R. § 4.16(a) (2001-2011).  A TDIU is in effect since August 16, 2001, and this is based in part on the increase in the disability rating for the Veteran's cervical spine disability from 20 percent to 60 percent, effective that date.  The Board has specifically found that a rating in excess of 20 percent for the cervical spine disability is not warranted prior to August 16, 2001 on a schedular or extraschedular basis.  Therefore, the Board's decision here hinges on a finding that, irrespective of the above factual background, the combined effect of the Veteran's service-connected disabilities renders him unable to secure and follow a substantially gainful occupation.  

The current effective date for TDIU of August 16, 2001 is not based on a change in his physical condition on that date, but is based on the date the claim for TDIU was received at the RO; however, the Board found in its July 2009 decision that the claim for TDIU actually arose from the Veteran's January 11, 1994 original claim for compensation, as a component of the appealed initial rating for a left neck disability assigned in the resulting June 1994 rating decision.  In this context, the current effective date of August 16, 2001 has little to support it.  The Board's decision must be based primarily on the impairment resulting from service-connected disabilities before August 16, 2001, and whether such impairment precluded a substantially gainful occupation.  For reasons that will next be addressed, the Board finds that the evidence for and against such a finding is in equipoise.  

The Board is most persuaded by what appears to be a consistent level of overall occupational impairment over the entire period since service.  While the particular factors such as limitation of motion and attacks of intervertebral disc syndrome may have changed over this period, the evidence indicates that the effect on occupational impairment has remained largely the same.  A VA examination in April 1994 reveals that the Veteran was not working because of his injured neck and left arm at that time.  In that examination, and in a February 1997 examination, the Veteran reported decreased sensation and pain associated with most activities, and especially attempting to lift.  In a November 2000 physical therapy initial evaluation, it was noted that the onset of chronic pain was five to six years prior.  A June 2001 report indicates a five-year history of increased pain and neck stiffness.  

In May 2003, the Veteran's girlfriend stated that she had been in a relationship with the Veteran for 13 years.  She noted that, for this period, the Veteran could not play with his son or daughter because of his neck, that he was not able to hold his son because of the lack of feeling in his hand, and that he was not able to contribute to household chores such as mowing the lawn, taking out the garbage or even minor repairs.  Thus, regardless of the specific findings pertinent to the rating schedule that were present during this period, the overall effect of the disabilities on the Veteran's employment appears to be roughly the same as it was and is after August 16, 2001.  

Regarding the medical opinion evidence, this evidence is generally favorable to a finding that the Veteran's service-connected disabilities precluded a substantially gainful occupation from December 14, 1993 (the first day after service separation) to August 16, 2001.  A July 2003 VA examination includes the opinion that the Veteran had been unemployed since service separation.  The examiner felt that the likelihood of his returning to work was slim.  While this opinion is after August 2001, it deals with the entire period since service separation.  

In a June 2010 addendum to a January 2010 VA examination report, the VA examiner specifically commented on the Veteran's employability from April 1994 through August 2001.  The examiner opined that the Veteran could only stand one hour at a time.  He could only walk with a neck brace up to 45 minutes.  Without a brace, he could walk 20 minutes.  He had severe restrictions with any bending, lifting, and twisting, as well as reaching and grabbing with his left hand.  The examiner noted that the Veteran's skill set was that of a tanker, and that he could obtain employment with the above restrictions.  

There are other opinions indicating that only sedentary work would be appropriate for the Veteran, notably, a November 2003 private opinion.  A January 1995 vocational rehabilitation counseling summary notes that the Veteran had an impairment of employability.  It was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs he would qualify for.  It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint."  The counselor noted that the Veteran has not overcome the effects of the impairment of his employability and he does not have suitable job skills to offer the civilian job market, either from training or work history.  

A January 2001 counseling record for VA vocational rehabilitation notes that the Veteran has some employment impairments including that physical labor is difficult, overhead lifting and heavy lifting are precluded.  According to the January 2001 examiner, the Veteran could not do entry-level manual jobs.  The examiner recommended that the Veteran become trained to be a computer technician.  A narrative summary includes the assessment that the Veteran's service-connected neck condition limits him from doing any overhead or heavy lifting and that he lacks suitable skills to find employment that is not physically demanding.  The Veteran ultimately withdrew from vocational rehabilitation due to complaints of headaches, which he attributed to his neck.  

A March 2011 VA social and industrial survey notes that the Veteran's service-connected neck condition and non service-connected disabilities place him at a competitive disadvantage in obtaining employment when competing with jobs for the nondisabled, as he is not able to do any jobs that require excessive physical demands.  The examiner noted the findings in the vocational rehabilitation file, as well as the factors such as the Veteran's substance abuse.  The examiner provided the opinion that, with the Veteran's limited education and work experience, the type of work he could do would be primarily physical; this would be compromised by his physical disabilities, including service-connected disabilities.  The examiner continued that it is clear that the Veteran's service-connected disabilities disabilities had a notable impact on his ability to obtain and maintain substantially gainful employment prior to August 2001. 

The Board remanded the claim for an addendum opinion in light of the March 2011 examiner's apparent consideration of other physical disabilities in addition to service-connected disabilities in formulating the opinion as to unemployability.  An August 2011 addendum to the social industrial survey reveals that, in the reviewing physician's opinion, the Veteran's cervical spine condition from April 1994 to August 16,2001 caused the following limitations:  the Veteran could only stand one hour at a time; he could only walk with a neck brace for up to 45 minutes and without a brace he could walk 20 minutes; he had severe restrictions with any bending, lifting, or twisting; and the Veteran's elbow injury also restricted physical labor that required repetitive use of the left upper extremity.  In the physician's opinion, these limitations due to service-connected disabilities caused the Veteran to be unemployable in both physical and sedentary work during this time period.  The opinion was that the Veteran was not employable in any type of labor during this time period due to his service-connected disabilities.

The RO referred the case to the Director of the VA Compensation Service (Director) for extraschedular consideration decision in December 2011.  In a January 2012 opinion, the Director noted that, from April 1994 to August 16, 2001, the sole service-connected disability was cervical spondylosis with chronic muscle strain of the left neck, evaluated at 20 percent.  The Director found that physical examinations prior to August 16, 2001 do not support the contention that the Veteran's service-connected cervical spine disability was so exceptional or unusual, as to render the use of the regular rating schedule standards impractical.  The Director found that there are no medical statements or records indicating that the Veteran could not perform in any sort of occupational environment.  The Director also noted that May 18, 2001 was the first time employment functioning was mentioned in terms of the Veteran's neck disability, and this appears to be verbal history from the Veteran, not a professional medical opinion.  The Director noted that the Veteran stopped attending vocational rehabilitation due to headaches, which he claimed were due to the neck, but no link has been provided, and he is not service connected for a headache condition.  The Director acknowledged the recent VA opinion that the Veteran was unemployable due to his cervical spine disability prior to August 2001.  While this opinion was taken into consideration, the Director found that the objective evidence does not support the examiner's finding.  The Director concluded that, while available evidence demonstrates that the Veteran's cervical spine disability would have affected his ability to work prior to August 2001, evidence does not show it would have precluded all types of employment, such as sedentary employment.  

The Board notes that the Director only considered the Veteran's cervical spine disability as service connected during the period in question.  While this was technically true at the time, service connection was subsequently granted for residuals of a left elbow fracture with a 20 percent rating assigned effective December 14, 1993.  The service-connected left elbow disability must also be considered in determining TDIU entitlement, but apparently was not considered by the Director.  The Board also notes that the Director did not explain why the objective evidence does not support the examiner's finding.  In addition, the Director appears to have found that the evidence must show that the Veteran's service-connected disabilities would have precluded all types of employment, such as sedentary employment, in order to warrant TDIU on an extraschedular basis.  Such criteria appear stricter than what is provided in VA regulations.  

The Board finds most persuasive the fact that, as determined by the Veteran's vocational rehabilitation counselors, the Veteran 's service-connected neck disability limits him from doing any overhead or heavy lifting, coupled with the fact that he lacks suitable skills to find employment that is not physically demanding.  Indeed, regarding sedentary employment, it was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs for which he would qualify.  It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint."  The VA vocational rehabilitation counselor noted that the Veteran has not overcome the effects of the impairment of his employability, and he does not have suitable job skills to offer the civilian job market, either from training or work history.  

In Moore, 1 Vet. App. at 359, the CAVC discussed the meaning of "substantially gainful employment."  The CAVC noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Here, it is uncontested that the Veteran's service-connected disabilities would preclude any form of employment that is more than sedentary in nature.  Moreover, as a result of his inability to complete his education and his limited vocational experience, the Board finds that the types of sedentary occupations available to the Veteran would be quite limited.  The Board emphasizes that the test is not whether the Veteran would have been precluded from all types of employment, such as sedentary employment, but whether such employment was realistically within the physical and mental capabilities of the claimant.  On this question, the evidence in this case is at least in relative equipoise.

An additional factor considered by the Board relates to medication taken by the Veteran to treat his service-connected disabilities.  In a May 2003 RO hearing, the Veteran testified that he took pain medications and muscle relaxers for his service-connected disabilities.  A July 2003 VA examination reveals that he had been taking codeine for pain.  A June 2011 VA social and industrial survey shows that he was taking the muscle relaxant Cyclobenzaprine.  The effect of the Veteran's long-term use of pain medications and muscle relaxers to treat his service-connected disabilities cannot be ignored when considering his overall functional impairment due to service-connected disability.  See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability).

In sum, given the severity of the orthopedic disabilities affecting neck, cervical spine, and left upper extremity, the Board finds that the evidence for and against whether substantially gainful employment is realistically within the Veteran's 

physical and mental capabilities is in equipoise.  Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from performing substantially gainful employment.  38 C.F.R. § 5107(b).  Therefore, TDIU is warranted from December 14, 1993 to August 16, 2001.


ORDER

A TDIU from December 14, 1993 to August 16, 2001 is granted.




____________________________________________
J. Parker
Veterans Law Judge, Board of V

 

 

 

I 

[El Train]

5 hours ago, Mr cue said:

I understand the imo thing it is to help get  issue service connected.

A. Imo is not going to help with getting a higher rating.

Just my opinion.

Imo are need if you don't have a record of the disability or to help show it service connected.

A imo is not going to get the va to follow the law.

And Imo is not go to make the bva follow the benfit of the doubt doctrine

So no a imo will not help in my case.

I am have already been granted smc s and l. And the adjustment disorder

An imo is not going to get the bva to address a time period before I apply 2018.

In my opinion the only time you would need a imo is when it a ?

Of a disability been service connected.

 

I got out in 93.  Filed VA claims for the first time in 2017.  Initially got 50% mental conditions.  Got a two different psyc IME, filed an NOD with new evidence within the year.  Once the dust settled, 100% PTSD/TBI P&T with SMC-S.  The IME's I got helped me get there.  And quick.  No appealing for years on end.  No attorneys, except to get back pay from 1993.  I won 10% for that.  Not a ton of money, but more than I would've had.

It's like a court case.  The VA has there specialists on their side, I have my hired guns on my side.  They gave my evidence the benefit of the doubt.  Trust me, the VA tried to argue against my evidence.  Fortunately, I had the means to get these IME's and they have been paid back in the first month of getting my 100%.

It's your fight to fight.  Do it your way.  I did it my way and it worked out very well for me.  Just here to help now.