Veterans’ Claims: RK v. Shinseki 13-2908

United States Court of Appeals for Veterans Claims

Vet. App. No. 13-2908

RK, Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, Appellee.

BRIEF FOR APPELLANT

David Anaise, MD, JD Benham & Anaise, LLC 1001 W. San Martin Dr. Tucson AZ 85704 (520) 219-7321

TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES Cases   Brief Page:

Rice v. Shinseki, Vet. App. 447 (2009)	2,5,6,8,9,14­ 16,20
Thun v. Peake, 22 Vet. App. 111 (2008)	5,7,8,15,20
Aff’dsub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009)	7
Thun, 22 Vet. App. at 115	7
Bagwell v. Brown, 9 Vet. App. 337 (1996)	8,10
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995)	8,10
Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008)	9
Affdsub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009)	9
Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009)	10
Comer v. Peake, 552 F.3d 1362, 1367,1368 (Fed. Cir. 2009)	10,15
Murphy v. Derwinski, U.S. Vet. App. No. 90-107	10
Patton v. West, No.97-828 (1999)	11
Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990)	14
Caluza v. Brown, 7 Vet. App. 498, 507 (1995)	14
Allday v. Brown, 7 Vet. App. 517, 527 (1995)	14
Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994)	14
Beaty v. Brown, 6 Vet. App. 532, 537 (1994)	14,16
Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir. 2001)	15
Bernklau v. Principi, 291 F.3d 795, 799 (Fed.Cir. 2002)	15
Norris v. West, 12 Vet. App. 413, 420-21 (1999)	15
Johnson v. Brown, 7 Vet. App. 95 (1994)	17,18
Carpenter v. Brown, 8 Vet. App. 240, 243 (1995)	17
Mittleider v. West, 11 Vet. App. 181, 182 (1998)	18
Bowling v. Principi, No. 99-2264 (2001)	19
Carpenter (Eugene) v. Brown, 8 Vet. App. 240, 242 (1995)	19
Cf. Richard (Mary) v. Brown, 9 Vet. App. 266, 267-268 (1996)	19

Statutes

38 USCA §§ 1155, 5107(b) (West 2002)	6
38 USC §5107(a)	10
38 USC §7104(d)(1)	14

Regulations and Other Authorities

38 CFR §§ 4.3, 4.7, 4.119, DC 7913 (2012)	6
38 CFR § 3.321(b)(1)	8,10
38 CFR §3.103 (c)	11
38 CFR §4.16 (b)	13,14
38 CFR §4.16 (a)(2012)	13,14,16
38 CFR §4.132, DC 9411 (1996)	17-19
38 CFR §4.16 (c) (1996)	18
38 CFR §4.7	18
38 CFR §3.102	18
Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section F	16
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)	17-19
Citation Nr: 0304543, Decision Date: 03/12/03, DOCKET NO. 96-45 560A	18
Citation Nr: 1331147, Decision Date: 09/27/13, Archive Date: 10/01/13, DOCKET NO. 08-22 151	19

Record before the Agency

R. 305	11
R. 329	12,17
R. 309	11

STATEMENT OF THE ISSUES

Whether the Board’s decision to deny Appellant TDIU is clearly erroneous and, therefore, must be reversed.

We argue that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board had a duty to investigate Veteran’s entitlement to TDIU. Even prior to the increase of the disability rating for diabetes mellitus from 20% to 40%, Veteran already met the schedular requirement for TDIU with 80% service-connected disabilities, including 50% for PTSD and peripheral neuropathy affecting all four limbs (each with a 10% rating). The Veterans’ Administration’s 2006 decision already established that Veteran was unemployed and has a lifelong difficulty in maintaining a job beyond marginal employment. The Board’s analysis based on Thun v. Peake, 22 Vet. App. 111 (2008), is inappropriate in this case, as the question was not of an extra-schedular rating but of schedular TDIU since Veteran already had an 80% disability rating. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court made it abundantly clear that the Veterans’ Administration has a duty to investigate the eligibility of a veteran for TDIU when the veteran requests a higher rating which will entitle him to schedular unemployability and the records indicate evidence of unemployability.

We argue:

IV.The Board’s analysis regarding awarding TDIU on an extra-schedular basis is incorrect.

VI.Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board had a duty to investigate Veteran’s entitlement to TDIU.

VII.The Board may not deny unemployability based solely on the failure of the veteran to submit Form 21-8940.

STATEMENT OF THE CASE

The Veteran served on active duty from August 1967 to June 1969. This matter came before the Board of Veterans’ Appeals (Board) on appeal from the May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board held:

“The criteria for a rating of 40 percent for Type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code7913 (2012).”

The Board noted that it examined the claims file containing the veteran’s available service treatment records, reports of VA post-service treatment, and the veteran’s own statements in support of his claim. The veteran was afforded a VA examination responsive to the claim for an increased disability rating. The Board reviewed the examination report and opinion, and found it adequate for the purpose of deciding the claim for increased rating on appeal; the examination report contained all the findings needed to rate the Veteran’s service-connected diabetes mellitus, including his history and clinical evaluation.

Pursuant to DC 7913, a 20% rating is assigned where insulin and a restricted diet, or an oral hypoglycemic agent and restricted diet are required. A 40% rating requires treatment with insulin, restricted diet, and regulation of activities. The next highest possible rating under this code is 60 percent, in which case a veteran would require insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring one or two

hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that are not compensable if related separately. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Thus, the Board found that Veteran’s symptoms more nearly approximate the criteria for a 40% disability evaluation. The Veteran does have complications from diabetes mellitus that are separately evaluated. In fact, the Veteran was diagnosed with peripheral neuropathy and erectile dysfunction, more likely than not associated with diabetes mellitus. The RO granted service connection for peripheral neuropathy in a May 2004 rating decision, and assigned a 10% rating for each extremity.

As to the consideration of referral for an extra-schedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), affd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran’s disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the veteran’s disability level and symptomatology, then the veteran’s disability picture is contemplated by the rating schedule; the assigned schedular evaluation is, therefore, adequate and no referral is required. If the schedular evaluation does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extra-schedular rating is warranted.

The discussion above reflects that the symptoms of the veteran’s diabetes mellitus is fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms of restricted diet, regulation of activities, and the use of insulin and oral hypoglycemic, each of which were addressed in the VA examination and treatment records and which provided the basis for the disability rating. Thus, consideration of whether the veteran’s disability picture exhibits other related factors such as those provided by the regulations as “governing norms” is not required. In any event, the veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran’s

symptoms have otherwise rendered impractical the application of the regular schedular standards. The VA examiner did not indicate that the Veteran lost any time from work due to his diabetes mellitus. Therefore, referral for consideration of an extra-schedular rating for the Veteran’s diabetes mellitus is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with diabetes mellitus, the Board found that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

SUMMARY OF THE ARGUMENT

The veteran served in active duty from August 1967 to June 1969. The matter came before the Board of Veterans’ Appeals on appeal from the May 2009 rating decision by the Department of Veterans Affairs Regional Office in Wichita, Kansas. Prior to the Board’s decision the veteran already had service-connected disability ratings for PTSD with major depression 50% from September 7, 2005; diabetes 20%; peripheral neuropathy of the right upper extremity 10%, left upper extremity 10%, right lower extremity 10%, left lower extremity 10%; and erectile dysfunction associated with diabetes mellitus 0%. The combined evaluation was 80% from September 7, 2005.

The Board held that the symptoms related to Veteran’s diabetes most nearly approximated the criteria for a 40% disability evaluation. The Board also provided an analysis of extra-schedular rating pursuant to Thun v. Peake 22 Vet. App. 111 (2008). The Board determined that the veteran did not claim and the evidence did not reflect that there has been marked interference with employment. The VA examiner did not indicate that the veteran lost any time from work due to his diabetes mellitus. In Rice v. Shinseki, the Court held that a TDIU claim is not separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet.App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that when entitlement to TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Veteran’s TDIU claim was reasonably raised by the record.

We argue:

IV.The Board’s analysis regarding awarding TDIU on an extra-schedular basis is incorrect.

VI.Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board had a duty to investigate Veteran’s entitlement to TDIU.

VII.The Board may not deny unemployability based solely on the failure of the veteran to submit Form 21-8940.

VIII.Veteran is entitled to a disability rating of 70% for PTSD, due to GAF of 45 and the inability to work.

ARGUMENT I.

The Board has a duty to address all issues reasonably raised either by the Appellant or by the Record.

The Board has a duty to address all issues reasonably raised either by the Appellant or by the record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), affdsub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The veteran representing himself, with no assistance from a lawyer, was not sophisticated enough to articulate all the issues that he wanted the BVA to address specifically: his dissatisfaction with the rating for PTSD and his dissatisfaction with the fact that his unemployability was not addressed by the regional rating agency. This Court

has clarified that “a request for TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate [evaluation] for a disability or disabilities,… [including] as part of a claim for increased compensation.“ Rice v. Shinseki, 22 Vet.App. 447, 453-54 (2009); see Comer v.

Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009) (claim for increased disability evaluation also raises claim for TDIU where there is evidence of unemployability).

The Board restricted its evaluation to diabetes mellitus and its effect on Veteran’s

employment. It failed to evaluate the combined effect of Veteran’s service-connected

disabilities, including PTSD and severe neuropathy, leading to an 80% service-connected

combined disability. The Board stated:

“The Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran’s symptoms have otherwise rendered impractical the application of the regular schedular standards. The VA examiner did not indicate that the Veteran lost any time from work due to his diabetes mellitus. Therefore, referral for consideration of an extraschedular rating for the Veteran’s diabetes mellitus is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with diabetes mellitus, the Board found that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. §

3.321(b)(1) were not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).”

The Board failed to note the rating decision of December 18, 2006, and the psychiatric evaluation performed during the C&P, on which the regional office relied on and clearly stated that due to Veteran’s service-connected disabilities, specifically PTSD and diabetes, Veteran has not been able to work since 2001, when he was only 50 years old. (see infra)

Once the claimant has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded under §5107(a), the burden then shifts to the Secretary to “assist such a claimant in developing the facts pertinent to the claim”

38 USC §5107(a):

“Within the non-adversarial process of VA claims adjudication, the word ‘pertinent’ takes on an even stronger meaning; the Secretary’s duty applies to all relevant facts, not just those for or against the claim.” Murphy v. Derwinski, U.S. Vet. App. No. 90-107

In Patton v. West, No.97-828 (1999), the CAVC held that during personal hearings conducted by VA adjudicators, pursuant to 38 CFR §3.103(c), the VA has the responsibility to “suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” Accordingly, if the claimant or the records in the claims file put the VA on notice of the existence of evidence that may help substantiate the claim, the VA is required to obtain the evidence itself or advise the claimant to submit the evidence.

The Board made a decision that the veteran’s service connected disability of diabetes mellitus be rated at 40%. The only difference between a 40% rating and a 20% rating is that under a 40% rating the veteran suffers from impairment in “regulation of activities.”

7913 Diabetes mellitus
Requiring insulin, restricted diet, and regulation of activities	40
Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet	20

This should have triggered an evaluation of employability.

On December 18, 2006, the VA rating decision (R. at 309) notified the veteran that he met the schedular criteria for additional service-connected disability based on Individual Unemployability. The sole reason for denial of TDIU expressed by the VA was that they had provided the veteran on December 28, 2006, with Form 21-8940, and they had not received a response to that letter. (R. at 305)

We argue that it was evident in the record before the Board, that as of 2006 Veteran was unable to maintain gainful employment; the rating decision of October 2006 makes that abundantly clear:

“After the military, you worked for a couple of companies doing their computer work. You later did short-term contract work on a part-time basis but stated you have not worked since 9-11 [2001]. You indicated you would like to work but can’t seem to stay focused on work...The examiner diagnosed you with PTSD with secondary major depression, combat-related. The Global Assessment of Functioning (GAF) score was 45.”

On June 6, 2006, Veteran was seen in the PCT Clinic for evaluation. He reported that he was unemployed for the past three years due to the economy and depression. He had previously worked as a free-lance computer programmer on temporary contracts with various companies.  Veteran reported symptoms of depressed mood, anxiety, sleep disturbance with nightmares, irritability, and anger outbursts. He was diagnosed with PTSD, combat-related. A compensation and pension examination was performed by Susan Paolo, PhD, on October 18, 2006. The rating agency relied on this evaluation in granting 50% disability benefits for PTSD. Veteran reported that due to his PTSD, his work history was spotty and mostly part-time. After the military, he worked for a couple of companies doing computer work. He later did short-term contract work

on a part-time basis. Veteran stated that he has not worked since 9/11. Veteran indicated that he would like to work but can’t seem to stay focused on work. On mental status examination the examiner noted some memory impairment; speech was somewhat circumstantial; and mood was depressed and anxious. The examiner diagnosed Veteran with PTSD and secondary major depression, combat-related. The Global Assessment of Functioning (GAF) score was 45, which indicates serious impairment. We provide an excerpt of the examination (R. at 329):

“He has recently been diagnosed with PTSD. He started taking antidepressants due to his emotional distress after the terrorist attack of September 11^th, 2001. Afterwards, his nightmares worsened, and at the urging of his wife he began to pursue treatment for PTSD. Employment history: First job after Vietnam was with RCA doing computer work for 2-3 years until the company got out of the computer business. That was the longest he ever stayed with one company, once he worked at the University of San Francisco for about 2 years, and once at a community blood bank doing their computer work for 2-3 years. He quit because he felt he was falling apart. Afterward he took on part-time and short-term contract work. “I was fortunate to have a good education before the military. I was able to do contract work, and when things got bad for me I could take a break and move on.” He hasn’t worked since 9-11. He can’t maintain his focus and drive to do it. “They really don’t like it on a job when they tell you what to do, and five

minutes later you come back and ask what it was they wanted you to do. I want to work, but part of the problem is that I get obsessed with the news, especially following the war, and it really upsets me. They show the pictures of the ones who died and it reminds me of Vietnam.“

MENTAL STATUS EXAMINATION:

–        some memory impairment related to poor concentration – starts to do something and can’t remember what he was doing impairment of thought process or communication involves poor concentration to the point that he is unable to focus on his work

–     speech had to be interrupted and redirected at times, somewhat circumstantial

–           denied delusions and hallucinations other than PTSD related symptoms such as waking up at night thinking he heard incoming, or hearing the cries of Vietnamese in a funeral procession that passed by their camp

–     fair eye contact

–     interaction in session – serious tone, sad and anxious affect

–     denied inappropriate behavior – “I just try to keep my mouth shut.”

–     frequent depressed or anxious mood

–     panic attacks when he’s with strangers, and when waking from a nightmare

–     pretty good impulse control

–     sleep impairment has improved with medication, but in recent months”

The rating agency determined in 2006 that there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as circumstantial speech; impairment of short and long-term memory; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

IV.The Board’s analysis regarding awarding TDIU on an extra-schedular basis is incorrect.

The Board performed in extra schedular analysis pursuant to 38 C.F.R. § 4.16(b). The relevant regulation requires percentage standards of a single service-connected disability ratable at 60% or more, or two or more service-connected disabilities with one ratable at 40% or more, and sufficient additional disability to bring the combined evaluation to 70% or more. 38 C.F.R. § 4.16(a)(2012). If a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), he or she will be awarded TDIU on an extra-schedular basis. 38 C.F.R. § 4.16(b). Prior to the Board’s decision the veteran already had service-connected disability ratings for PTSD

with major depression, 50% from September 7, 2005; diabetes 20%; peripheral neuropathy of the right upper extremity 10%, left upper extremity 10%, left lower extremity 10%, right lower extremity 10%; and erectile dysfunction associated with diabetes mellitus 0%. The combined evaluation was 80% from September 7, 2005. The analysis should have been conducted according to 38 C.F.R. § 4.16(a) and not according to 38 C.F.R. § 4.16(b). The only question before the Board was whether or not Veteran is capable of maintaining substantial gainful employment.

The Board must provide an adequate statement of reasons or basis for its findings on all material issues of fact and law presented. See 38 U.S.C. § 7104(d)(l); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 507 (1995); see Allday v. Brown, 7 Vet.App.

517, 527 (1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.)” Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994). See Beaty v. Brown, 6 Vet.App. 532, 537 (1994). (The Board “may not reject [an application for TDIU] without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.)

VI.Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board had a duty to investigate Veteran’s entitlement to TDIU.

We argue that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board had a duty to investigate Veteran’s entitlement to TDIU. Even prior to the increase of the disability rating for diabetes mellitus from 20% to 40%, Veteran already had 80% service-connected disabilities, including 50% for PTSD and peripheral neuropathy affecting all

four limbs (each with 10% rating). The Veterans’ Administration’s 2006 decision already established that Veteran was unemployed and has a lifelong difficulty in maintaining a job beyond marginal employment. The Board’s analysis based on Thun v. Peake 22 Vet. App. 111 (2008), is inappropriate in this case as the question was not of an extra-schedular rating but of TDIU; Veteran already had an 80% disability rating.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court made it abundantly clear that the

Veteran Administration has a duty to investigate the eligibility of a veteran for TDIU when the veteran requests a higher rating which will entitle him to schedular unemployability and the records indicate evidence of unemployability. The Court stated:

“It is clear from our jurisprudence that an initial claim for benefits for a particular disability might also include an assertion of entitlement to TDIU based on that disability (either overtly stated or implied by a fair reading of the claim or of the evidence of record)( emphasis added) ….The Federal Circuit’s recent decision in Comer v. Peake contains language consistent with this analysis: “A claim to TDIU benefits is not a free­standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.“ 552 F.3d 1362, 1367 (Fed. Cir. 2009). This statement of the law is consistent with and reiterated the Federal Circuit’s earlier decision in Roberson v.

Prinicpi, involving the assignment of an initial disability rating, which reversed this Court’s holding that Mr. Roberson failed to make “a claim for TDIU“ and held that consideration of TDIU is required once “a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability.“ 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Bernklau v. Principi, 291 F.3d 795, 799 (Fed. Cir. 2002) (discussing a request for TDIU in the context of a claim for increased compensation for an already service-connected disability). Further, this Court has already stated this principal clearly: ”A TDIU rating is not a basis for an award of service connection. Rather, it is merely an alternate way to obtain a total disability rating without being rated 100% disabled under the Rating Schedule.” Norris v. West, 12 Vet.App. 413, 420-21 (1999).

Considering more closely the facts of Comer, Roberson, Bernklau, and Norris, we hold that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation, where the disability upon which entitlement to TDIU is based has already been found to be service connected.”

VII.The Board may not deny unemployability based solely on the failure of the veteran to submit Form 21-8940.

The Board defends its decision not to consider unemployability based on the failure of

the veteran to submit Form 21-8940. First of all, in doing so the Board violated its own policy as clearly expressed in the manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, which states: “Note: Although a VA Form 21-8940 can be an important development tool, it is notrequired to render a decision in an IU claim.”

Secondly, the Court in Rice already stated that Form 21-8940 is only one of several ways Veteran can request TDIU:

“The Court holds that a request for TDIU is best understood as part of an initial claim for VA disability compensation based on the individual effect of the veteran’s underlying disability or disabilities or as a particular type of claim for increased compensation. This is not to say that a claimant cannot submit a request for TDIU at any time, whether on a VA Form 21-8940 or in any other manner (emphasis added). Submission of a request for TDIU does not change the essential character of an assertion of entitlement to TDIU as a part of either an initial claim or a claim for increase.”

Thirdly, pursuant to 38 C.F.R. § 4.16(a), See also Beaty v. Brown, 6 Vet.App. 532, 537 (1994):

“The Board “may not reject [an application for TDIU] without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.”

The manual further instructs the rating agency to be more vigilant where the veteran, as in this case, is self-employed (2-F-9):

“Development to produce the evidence necessary to establish the degree to which SC disability has impaired the Veteran’s ability to engage in self-employment must generally be more extensive than development in cases in which the Veteran worked for others. When determining entitlement of self-employed individuals to increased compensation based on IU, consider the relationship between the frequency and the type of service performed by the Veteran for his/her business and the Veteran’s net and gross earnings for the past 12 months.

Consider facts of the case, such as

•     low gross earnings that support a finding of marginal employment, especially when the amount of time lost from work due to SC disablement is taken into account, or

•     high gross earnings that indicate the Veteran is capable of engaging in a substantially gainful occupation.

If the information on VA Form 21-4192 only states that the Veteran retired, then request additional information as to whether the Veteran’s retirement was by reason of disability. If so, ask the employer to identify the nature of the disability for which the Veteran was retired.”

A compensation and pension examination was performed by Susan Paolo, PhD, on October 18, 2006. The rating agency relied on this evaluation in granting 50% benefits for PTSD. Veteran reported that due to his PTSD, his work history was spotty and mostly part-time. Veteran stated that he has not worked since 9/11. Veteran indicated that he would like to work but can’t seem to stay focused on work. The examiner diagnosed Veteran with PTSD and secondary major depression, combat-related. The Global Assessment of Functioning (GAF) score was 45, which indicates serious impairment. (R. at 329)

In Johnson v. Brown, 7 Vet.App. 95 (1994), the Court determined the criteria for granting benefits for a mental disorder described under a 70% rating (as well as ratings of 100%, 50% and 30%). The criteria focus on: (1) a veteran’s ability to “maintain effective or favorable relationships with people“ and, (2) the effect of the psychoneurotic symptoms on the veteran’s ability “to obtain or retain employment.“ The Court also held that the two criteria for a 70% rating under 38 C.F.R. § 4.132, DC 9411 (1996) are each independent of the other.

The Global Assessment of Functioning (GAF) scale reflects the psychological, social,

and occupational functioning under a hypothetical continuum of mental illness. See AmericanPsychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)(DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995).

“A GAF score between 41 and 50 is indicative of 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.

A GAF score between 51 and 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social,

occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). Id.”

The Board explained how the GAF score is used in a rating decision, Citation Nr: 0304543,

Decision Date: 03/12/03, DOCKET NO. 96-45 560A:

“A 70 percent disability rating is assigned when the ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment.

A 50 percent disability rating is assigned when the ability to establish or maintain effective and wholesome relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment.

The Court has held that if any one of the three independent criteria contained in Diagnostic Code 9411 in effect prior to November 7, 1996, is met, a 100 schedular evaluation is required under that code. Johnson v. Brown, 7 Vet. App. 95,

99 (1994).

When the only compensable service-connected disability is a mental disability, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. 38 C.F.R. § 4.16 (c) (1996).

When there is a question as to which of two evaluations shall be assigned, the higher evaluation 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.

According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), a GAF score of between 51 and 60 means that the veteran has moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of between 41 and 50 means that the veteran has either serious symptoms or serious difficulty in social, occupational, or school functioning.

In Mittleider v. West, 11 Vet. App. 181, 182 (1998), the Court quoted a passage from the Federal Register indicating that when it is not possible to separate the effects of a service- connected condition from non-service-connected conditions, “VA regulations at 38 C.F.R. § 3.102 ... clearly dictate that such signs and symptoms be attributed to the service-connected condition.“

The Board, thus, concluded that a 70% rating for PTSD is proper. See also Citation Nr:

1331147, Decision Date: 09/27/13, Archive Date: 10/01/13, DOCKET NO. 08-22 151.

In Bowling v. Principi, No. 99-2264 (2001), the Court acknowledged that a GAF score of

50 represents “serious” impairment:

“The Board cited this Court’s opinion in Carpenter (Eugene) v. Brown, 8 Vet.App. 240, 242 (1995). However, in that case where there was no evidence of a GAF score below 55, the Court held that where a veteran has “had a GAF of 55 to 60“ that score “corresponds to ‘moderate difficulty in social, occupational, or school functioning‘”, ibid. (emphasis added) (quoting Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) [hereinafter DSM-IV]), and that the veteran was thus not entitled to a 70% rating under DC 9411. In contrast, in the instant case, the veteran’s GAF score has been recorded as being as low as 45 … Cf. Richard (Mary) v. Brown, 9 Vet.App. 266 (1996) (veteran with PTSD rated at 70% received GAF score of 50). In Richard (Mary), the Court recognized that a GAF score of 50 indicated “‘serious‘” impairment. Id. at 267-68 (emphasis added) (quoting DSM-IV at 32). On remand, the Board must explain why in this case, where the most recent evidence showed GAF scores of 50 twice in January 1999 and 53 in the prior year (R. at 700, 706) and where other recent evidence showed a GAF score of 50 (R. at 691), the Board chose to characterize the veteran’s GAF score range as “55-60“ and thereby apply Carpenter (Eugene), rather than to characterize the veteran’s GAF score range as, for example, “50-53”, and consider the veteran to have either “serious” symptoms or “serious” impairment as described in the DSM-IV criteria discussed in Richard (Mary) v. Brown.”

CONCLUSION

We argue that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board had a duty to investigate Veteran’s entitlement to TDIU. Even prior to the increase of the disability rating for diabetes mellitus from 20% to 40%, Veteran already met the schedular requirement for TDIU with 80% service-connected disabilities, including 50% for PTSD and peripheral neuropathy affecting all four limbs (each with a 10% rating). The Veterans’ Administration’s 2006 decision already established that Veteran was unemployed and has a lifelong difficulty in maintaining a job beyond marginal employment. The Board’s analysis based on Thun v. Peake, 22 Vet. App. 111 (2008), is inappropriate in this case, as the question was not of an extra-schedular rating but of schedular TDIU since Veteran already had an 80% disability rating. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court made it abundantly clear that the Veterans’ Administration has a duty to investigate the eligibility of a veteran for TDIU when the veteran requests a higher rating which will entitle him to schedular unemployability and the records indicate evidence of unemployability.

Remand is, therefore, necessary, to allow for adequate review of the medical records and vocational expert testimony regarding Veteran’s TDIU.

Date: February 19, 2014                                                    

Respectfully Submitted,

/s/ David Anaise, MD, JD

David Anaise, MD, JD Benham & Anaise, LLC

1001 W. San Martin Dr.

Tucson AZ 85701 (520) 219-7321

Counsel for Appellant