Citation Nr: 0007503 Decision Date: 01/20/00 Archive Date: 09/08/00 DOCKET NO. 97-29 105A DATE JAN 20, 2000 On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD M. J. Bohanan, Counsel INTRODUCTION The appellant served on active duty from March 1943 to December 1945. This appeal arises from a March 1997, Department of Veterans Affairs (VARO), Montgomery, Alabama rating decision, which denied entitlement to a total rating based upon individual unemployability. FINDINGS OF FACT 1. The appellant served on active duty from March 1943 to December 1945. 2. The appellant is service-connected for psychotic depressive reaction, evaluated as 70 percent disabling; moderate wound to Muscle Group XV on the left, evaluated as 10 percent disabling; slight wound to Muscle Group VII on the left, evaluated as 0 percent disabling; and malaria, evaluated as 0 percent disabling. His combined disability evaluation is 70 percent. 3. The appellant has not been employed since 1975, when he last worked as a self- employed painter. 4. The appellant's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation consistent with his education, training and work experience. CONCLUSION OF LAW The appellant's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation and a total rating is not warranted. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 3.340, 3.341, 4.16 (1999). 2 - REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well- grounded." 38 U.S.C.A. 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). It is also clear that the appellant's claim has been adequately developed for appellate review purposes by VARO, and that the Board may therefore proceed to disposition of the matter. The appellant is service connected for psychotic depressive reaction, evaluated as 70 percent disabling; moderate wound to Muscle Group XV on the left, evaluated as 10 percent disabling; slight wound to Muscle Group VII on the left, evaluated as 0 percent disabling; and malaria, evaluated as 0 percent disabling. His combined disability rating is 70 percent. The appellant is seeking a total rating based upon individual unemployability. According to his April 1995 claim for such benefits, he has been completely unemployed since 1975, when he worked as a self-employed painter. He also reported that educationally he had completed the eighth grade. A VA examination was conducted in August 1996. The appellant reported that he took medication for his psychiatric disorder and had been hospitalized on several occasions. He also reported numerous nonservice-connected physical complaints, but claimed that he was worried more about his mind and his memory than anything else. He claimed that sometimes he did not remember where he was or where he was going, but denied getting lost. Neurological evaluation was normal, He was coherent, oriented and somewhat vague. He had apparent memory impairment, especially recent memory. He described some possibly delusional material. He was not capable of handling his affairs. The diagnoses included psychosis type unestablished; possibly developing dementia; coronary heart disease with myocardial infarction; obstructive uropathy with prostatism; residual effects of wound to the left knee; and chronic dermatitis probably epidermal phytosis. - 3 - An October 1997 letter from the appellant's VA physician, Ann Groover, M.D., was submitted. Dr. Groover reported that the appellant was followed in the Mental Hygiene Clinic through the Community Service Program. She indicated that he was diagnosed as having Major Depression, recurrent; Generalized Anxiety Disorder; and Benzodiazepine dependency, which were currently stable under treatment. She noted that he also had a number of medical problems, including a heart condition, and reported that, although there were no known connections between any events in the appellant's life and the heart attack he had in 1992, depressive disorder and anxiety disorder increase the risk for cardiac events. She indicated that the appellant currently had no significant symptoms of his mental and emotional disorders. He was well controlled on medication. He had complained of difficulty with chest pain and shortness of breath occurring every 1 to 2 months. He was evaluated for dementia and had been found to be cognitively intact. VA treatment records from Dr. Groover, dated from October 1996 to August 1997, revealed that the appellant was followed for his psychiatric symptoms. In October 1996, mental status examination revealed that his affect was restricted and dysthymic and his mood was depressed. He had occasional auditory hallucinations and some visual illusion-type experiences. He had no loosening of associations or flight of ideas, and no suicidal ideation. The diagnostic impression was rule-out dementia, Alzheimer's type; chronic undifferentiated schizophrenia; and major depression, recurrent, severe. In January 1997, it was noted that he was less depressed. He continued to have auditory hallucinations and hear voices in conversation at a distance, but these were not particularly disturbing or upsetting to him. He continued to lead an active lifestyle and denied adverse medication affects. His affect was somewhat restricted but appropriate to his mood. He requested a letter vouching for his unemployability in May 1997, but Dr. Groover indicated that she could not do so because he had been noncompliant with his medication and she had no objective criteria to document his dementia. Psychological testing and a CT scan had been recommended in the past, which he refused. She reported that the appellant had concerns about being told that he had Alzheimer's Disease. Mental status exam revealed he was alert and oriented times 3. His affect was restricted and dysthymic. His speech was goal directed and coherent. He answered with appropriate lack of 4 - short-term memory, but then was able to bring bits of information out which oblige this. He had no suicidal or homicidal thoughts, delusions or flight of ideas. The diagnostic impression was of questionable malingering; rule out early dementia; rule out chronic undifferentiated schizophrenia in remission; rule out major depression recurrent severe. He agreed to psychological testing and a CT scan. A psychological evaluation was conducted in July 1997, which indicated no significant decline in overall intellectual functioning from average pre-morbid levels. Performance within most areas was well within the expected range, including memory. However, performance was below expected levels on some tasks, including oral arithmetic skills (borderline); simple auditory attention (borderline); simple motor speed bilaterally (moderately impaired); and mental control (mildly impaired). He exhibited no significant abnormalities in his spontaneous behavior. His score on the depression inventory indicated significant depression with suicidal ideation. The results of the neuropsychological evaluation suggested the possibility of mild dysfunction of the frontal cortical/subcortical systems. It was note,i that, given the appellant's history of significant cardiovascular disease, it was possible that he had some mild cerebrovascular disease resulting from small vessel ischemia. Also, malarial infections have been associated with white matter changes, and this was another possibility. However, it was noted that some of the problems in auditory attention were likely related to interference from emotional distress, and that some of his fine motor difficulties may be related to peripheral factors (e.g. arthritis). In any case, the difficulties noted on testing were relatively mild and not of sufficient severity to cause significant functional impairment. A diagnosis of dementia was not warranted. An August 1997 treatment entry indicated that the appellant reported continued feelings of anxiety and depression. He indicated that he discontinued his Prozac due to frequent diarrhea after one month. It was noted that he had taken Valium twice a day on average for the past many, many years and this was unknown during prior visits and not considered in evaluating his difficulty with concentration and new learning. Mental status examination revealed that he was alert and oriented. His affect was reactive and appropriate. He complained subjectively of depression and 5 - anxiety. There were no signs of psychosis. The impression was of major depression recurrent; generalized anxiety disorder; and Benzodiazepine dependency. He was instructed to discontinue his Valium use, and a trial of Serazone was suggested. Additional VA treatment records, dated from February 1998 to July 1999, were also submitted, which indicated that the appellant was seen for various physical complaints, including vision problems, cardiac symptoms, hearing loss, musculoskeletal complaints, and a skin rash. A VA psychiatric examination was conducted in September 1999. The appellant reported that he had completed the tenth grade and 2 years of college. He claimed that he had last worked more than 20 years ago, although he indicated a brief attempt at working at a fast food restaurant for 1 or 2 months. He reported that he had depressed moods with crying spells at times. He claimed that he was limited by his physical condition. He reported that his energy level was alright, but that his concentration and appetite had decreased. He had no psychomotor retardation or suicidal or homicidal ideations. He claimed that he heard voices mostly at night. Mental status examination revealed that he was alert and oriented times three. He was cooperative with good eye contact. His mood was described as alright. His affect was constricted. His thought process showed decreased ability to focus. His thought content was negative for suicidal or homicidal ideations. There were no ideas or references. On cognitive exam, he was able to register 3 words, but was unable to remember 1 out of 3 after two minutes. He was unable to tell how much money 2 quarters, 3 pennies and a dime totaled. He knew the president of the United States. He indicated that there were 62 weeks in a year and 365 days. Proverbs were fair. Axis I diagnoses included age-related cognitive decline, rule out dementia; and major depression with intermittent psychotic features. Global assessment of functioning (GAF) score was 55. The examiner noted that the appellant was unable to obtain substantial gainful employment secondary to his depression and cognitive condition, but he was able to manage his own affairs. A September 1999 VA general medical examination was also conducted. Physical examination revealed that he was a small, weak man. His gait was typical for an 6 - elderly gentleman. Musculoskeletal examination revealed very limited movement of both arms and shoulders, hardly to 90 degrees. He had weak arms and legs, and a slight swelling of his feet. Neurologic exam was essentially negative except for dizziness and loss of balance. Psychiatrically, he was depressed. Diagnoses included generalized arteriosclerosis with cardiomyopathy and coronary insufficiency with angina; chronic obstructive pulmonary disease; trauma to the left rib cage (recent); gastroesophageal reflux disease; chronic constipation; benign prostatic hypertrophy; osteoarthritis of both shoulders; and hyperkeratosis. A total disability compensation rating may be assigned in a case in which the schedular rating is less than 100 percent, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service- connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. 3.340, 4.16 (1999). In this case, the appellant meets the schedular criteria by virtue of the fact that he has a 70 percent disability rating for his psychiatric disability. VA will grant a total rating for compensation purposes based on unemployability (TRIU) when the evidence shows that a 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, 4.16 (1999). A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service- connected] condition is less than 100%, 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). Before a total rating based upon individual unemployability may be granted, there must also be a determination that the veteran's service-connected disability is sufficient to produce unemployability without regard to advancing age. 38 C.F.R. 3.340, 3.341, 4.16(a) (1999). 7 - In determining whether a veteran is entitled to a TRIU, neither his nonservice- connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the veteran's nonservice-connected disabilities with respect to their degree of interference with the veteran's unemployability. In Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court of Veterans' Appeals stated the following concerning the issue on appeal: For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm for such veteran. See C.F.R. 4.1, 4.15 (1992). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. 4.16(a) (1992). The recent medical evidence reflects little objective evidence of residual disability affecting Muscle Group XV or VII. There have been no findings referable to malaria. The most recent September 1999 medical examination indicated some weakness, but neurological examination was normal. Treatment records indicate that he was followed for his psychiatric symptoms, which were described as stable, and for which he received medication. On his most September 1999 VA psychiatric examination he had a GAF score of 55, reflecting only "moderate" symptoms or "moderate" difficulty in social, occupational or school functioning. His July 1997 psychological evaluation reported that difficulties on testing were mild and not of sufficient severity to cause significant functional impairment. - 8 - The Board finds that the appellant's service-connected disabilities, to the exclusion of his age and numerous other nonservice-connected physical complaints, do not prevent him from performing work consistent with that which he performed in the past. There is, to be sure, psychiatric opinion that he unable to perform substantially gainful employment, but this was based on consideration not only of the service connected depressive disorder, but was also based on consideration of a non- service connected age- related disorder causing decline in the veteran's cognitive functioning. Further, the Board discerns no circumstance to place the appellant's case in a different position than similarly-rated veterans. Van Hoose, supra. Considering the nature and severity of the veteran's disabilities due to his service- connected disabilities and his educational and work background, he is still considered capable of substantially gainful employment. Accordingly a total compensation rating based on individual unemployability is not warranted. ORDER A total rating based upon individual unemployability due to service-connected disabilities is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals 9 - 025664010 000210 896651 DOCKET NO. 95-28 981A DATE FEB 10, 2000 On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Kenneth B. Mason, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant REMAND The veteran served on active duty from December 1956 to December 1960 and from October 1961 to August 1962. To ensure full compliance with due process requirements, this case is REMANDED to the Regional Office (RO) for the following: Schedule a hearing before a traveling member of the Board of Veterans' Appeals, consistent with the request of the appellant made in November 1999. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board[ has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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 Supp. 1999) (Historical and[ Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. L. M. BARNARD Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not - 2 - constitute a decision of the Board on the merits of your appeal. 38 C.F.R. 20.1100(b) (1999). - 3 -