BVA9500768 DOCKET NO. 88-00 740 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Entitlement to a total disability rating based on individual unemployability due to the veteran's service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from May 1969 to May 1973. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a November 1985 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Los Angeles, California, which denied the veteran's claim for an increased rating for a psychiatric condition and a total rating. In a Board decision of June 1988, the case was remanded to the RO for additional development of evidence, and then returned to the Board in September 1989. In June 1990, upon receiving a request from the veteran's accredited representative, the claim was returned to the RO for additional development. Upon completion of that development, the claim was forwarded to the Board in July 1991. Then in a 1992 Board Decision, the veteran's psychiatric condition was rated at 50 percent disabling. Board Decision, March 3, 1992; 38 C.F.R. Part 4, Diagnostic Code 9405 (1992). Additionally, the Board remanded the claim to the RO for the purposes of having the RO determine whether the veteran should receive a total rating. The veteran was notified of the increased rating decision, and did not timely appeal. That part of the rating decision became final, and is not before the Board at this time. CONTENTIONS OF APPELLANT ON APPEAL During the course of this appeal, the veteran's service-connected psychiatric disability has been determined to be more severe, and the rating has increased from 20 to 50 percent disabling. Despite this increase, the appellant continues to claim that this condition is totally debilitating. That is, he avers that as a result of this disorder, and the medications he must take for control of the condition, he is unable to obtain and maintain employment. Thus, he requests that a total rating based on individual unemployability be granted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the veteran's claim for entitlement to a total disability rating based on individual unemployability due to his service-connected psychiatric disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran's service-connected disability is an anxiety neurosis with pseudo-seizures, rated as 50 percent disabling. His combined schedular evaluation is 50 percent. 3. The veteran's service-connected psychiatric disorder is sufficiently severe as to preclude him from obtaining and maintaining a substantially gainful occupation consistent with his education and employment experience. CONCLUSION OF LAW A total rating for compensation purposes due to unemployability as the result of service connected disability is warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. The veteran has requested a total rating for compensation purposes based upon his unemployability. He is presently service-connected for an anxiety disorder with pseudo-seizures, rated as 50 percent disabling. There are no other service- connected disabilities. The combined schedular evaluation is 50 percent. In circumstances where the veteran is less than totally disabled under the schedular criteria, it must be found that the service- connected disorders prevent him from securing and maintaining a substantially gainful occupation, provided that: if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (1994). In this case, the veteran's combined service-connected rating is only 50 percent, and thus, he is not eligible for an entitlement to a total disability rating under the foregoing requirements. However, per 38 C.F.R. § 4.16(b) (1994), if a veteran does not meet the above percentage standards for a total rating, and is unable to secure and follow a substantially gainful occupation by reason of his service-connected disability, that veteran shall be rated totally disabled. In arriving at such a conclusion, the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue, will be considered. Upon application of these criteria to the evidence of this case, a conclusion that the veteran's service-connected disability has resulted in unemployability is not irrational. The evidence submitted in this case includes Department of Veterans Affairs (VA) hospital records from 1985 to the present, a November 1985 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), and numerous VAMC examination reports. In November 1985, the RO received from the veteran an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). On that application, he stated that he last worked full time in April 1975. He further claimed that his psychiatric disability with seizures so disabled him that he was forced to leave his last position as a correctional officer. He also reported that his only prior educational experience was that of two years of college. He further wrote that he had received special training in corrections and "big rig" truck driving. The veteran has received service-connected benefits for an anxiety disorder with seizures since January 1975. VA Form 21- 6796, Rating Decision, January 28, 1977. At that time, he was rated as 10 percent disabled in accordance with 38 C.F.R. Part 4, Diagnostic Code 9400 (1977). Over the next eight years, the veteran was able to demonstrate that his condition was more severe than previously rated, and in a Board action of August 1985, his disability rating was increased to 20 percent. Board Decision, August 2, 1985. In that same Board decision, it was also determined that the veteran's service-connected disability was not so disabling that it prevented him from obtaining and maintaining gainful employment. After receiving notification of the Board's action, the veteran then reapplied for a total rating evaluation along with an increased rating for his psychiatric disability. The veteran wrote on his application for a total rating that he had been medically terminated from his last position because he was considered a ". . . risk to myself and others around me." VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received November 6, 1985. The RO reviewed the veteran's application and determined that his psychiatric disability was not severe as to render him unemployable. The veteran appealed his claim contending that he suffered from seizures two to three times a week. He stated that while he was taking Dilantin for the seizures, they were not being controlled through the medication. Additionally, he contended that he became depressed and anxious each time he suffered from said seizures. In support of his claim, he proffered VA medical records showing treatment not only for these seizures but also the accompanying psychiatric disorder. He also provided testimony before a travel board, and the file was forwarded to the Board for review. Upon receiving the claims folder at the Board, it was decided that additional information was needed for the processing of the veteran's claims. Board Remand, June 30, 1988. Thus, the claims folder was returned to the RO and the veteran underwent additional neurological and psychological testing. The veteran was admitted to the Wadsworth VA Medical Center at which time his Dilantin level was decreased and it was determined that the veteran's seizures were a by-product of his anxiety disorder. The veteran was also informed of various restrictions on driving. VA Form 10-1000, Discharge Summary (Inpatient Care), with attachments, October 21, 1988. In July 1990, the veteran then underwent a VA psychological evaluation. VA Form 10-9034a, Medical Record Report, July 26, 1990. At the conclusion of this examination, the examiner wrote that the veteran was competent for VA purposes. However, it was also noted that he had fair social adaptation and severe psychological stressors. The diagnosis remained an anxiety disorder with pseudo-seizures. The veteran's file was then returned to the Board. On the basis of the recently obtained medical observations, the veteran's service-connected disability was determined to be 50 percent disabling. Board Decision, March 3, 1992. Notwithstanding this determination, the Board then remanded the claim to the RO. Specifically, the Board instructed the RO to determine whether the veteran was unemployable due to his 50 percent disabling service-connected condition. In developing the veteran's claim, the RO sent the veteran to a social worker for the purposes of determining his social and industrial adaptability. It was reported in this survey that the veteran was a single stay-at-home parent of two children. To support himself and his children, the veteran relied upon his VA compensation benefits along with monetary benefits from the Social Security Administration. It was also revealed that the veteran did not drive and that he depended upon his daughter to transport him wherever he needs to go. The examiner noted that the veteran's short-term memory was good but that he had difficulty with attention and concentration. Following the social survey, the veteran submitted himself to a mental disorders exam in August 1992. VA Compensation and Pension Examination, August 5, 1992. The examiner's report mirrored the July 1990 psychiatric examination as far as the diagnostic impressions made. However, the examiner further wrote: It is felt that this individual is totally and permanently unemployable which has been substantiated by his receiving Social Security benefits for the past 17 years and this is the result of his service connected pseudoseizure and anxiety syndrome which also is beginning to show organic mental changes. Despite this opinion, the RO determined that the veteran was not unemployable due to his service-connected psychiatric condition, and thus denied his request for a total rating. VA Form 21-6796, Rating Decision, December 8, 1993. During this same time period, the veteran was admitted to the Loma Linda VA Medical Center for a period in excess of 21 days for treatment of his mental condition. He was stabilized and discharged prior to Christmas. VA Form 10-9043-DS, Discharge Summary, December 15, 1993. It was however determined during his stay that his global assessment of functioning ranged between 40 and 60. This means that he was having moderate to major impairment in social and industrial functioning along with impairment in judgment, thinking, and mood. See DSM IV It is the function of the Board to weigh and analyze the evidence and to make determinations as to the credibility of the evidence. 38 U.S.C.A. § 5017(b) (West 1991); Sanden v. Derwinski, 2 Vet.App. 97 (1992). Where the preponderance of the evidence is in favor of the veteran's claim or the evidence for and against the claim is approximately in balance, the benefit sought is to be granted. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Although the entire record is not without a measure of ambiguity, e.g. the undocumented reports of weekly seizures, we conclude that the totality of the evidence in the file is in favor of the veteran's claim. The medical documents attest to his unemployability. That is, a VA physician noted in 1992 that the veteran is permanently and totally disabled due to his service-connected psychiatric disorder. The examiner did not even recommend that the veteran seek even a light, sedentary job that would be within the veteran's current psychological, educational, and social capabilities. Additionally, the medical records attest to the fact that the veteran's mental disorder is increasing in severity. His most recent VA Compensation and Pension Examination documented that he is starting to suffering from organic brain damage due to his disability. Also, this veteran's only previous experience is in corrections and truck driving; it seems improbable that due to his seizures that he would ever be able to drive a truck for a living. It is also highly unlikely that a corrections occupational field employer would hire a person with the veteran's medical history. As we are unable to conclude that the preponderance of the evidence is against the claim, the claim may not be denied. Therefore, pursuant to 38 C.F.R. § 4.16(b) (1994), we conclude that the veteran's service-connected disability of an anxiety neurosis with pseudo-seizures makes him unable to seek and maintain gainful employment, and a total disability rating for compensation based on individual unemployability due to the service-connected disability is warranted. ORDER Entitlement to a total disability rating for compensation based upon individual unemployability due to service connected disability is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.