Citation Nr: 1533608 Decision Date: 08/06/15 Archive Date: 08/20/15 DOCKET NO. 02-11 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law ATTORNEY FOR THE BOARD A. Dixon, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1964 to May 1968 and had service in the Reserves from October 1984 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case was previously before the Board in March 2005 and November 2011, and each time was remanded for additional development. Specifically, in March 2005, the Board requested that the RO obtain a copy of the Social Security Administration (SSA) administrative decision awarding the Veteran disability benefits, and thereafter submit the Veteran's TDIU claim to the Director, Compensation and Pension Services for consideration of extra-schedular evaluation. In November 2011, the Board remanded the Veteran's claim so that he could be properly notified that the SSA administrative decision could not be obtained, and to obtain missing VA medical treatment records. The Board finds that the requested actions were completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In adjudicating this appeal, the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence. In July 2015, the Veteran filed a claim for compensation under 38 U.S.C.A. § 1151 for vitreous hemorrhage of the right eye. This claim was denied by the Board in November 2011, and again by the RO in January 2013. A statement of the case was issued in November 2014, but there is no evidence an appeal was ever filed. Therefore, the claim to reopen is REFERRED for appropriate action. FINDING OF FACT The more probative evidence demonstrates that the Veteran's service-connected disabilities, when evaluated in association with his educational attainment and occupational experience, do not preclude all forms of substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of TDIU due to service-connected disabilities have not been met. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for a right humerus disability, currently rated at 40 percent disabling, and depression, currently rated at 30 percent disabling. His overall disability rating is 60 percent; therefore, he does not meet the percentage requirement for TDIU on a schedular basis under 38 C.F.R. § 4.16(a). However, even if the Veteran fails to meet the percentage standards required by 38 C.F.R. § 4.16(a), the Board will nonetheless consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). In July 2011, the Director of the Compensation and Pension Service reviewed the Veteran's claims file and determined a TDIU was not warranted on an extra-schedular basis. The Director found that the evidence indicating unemployability included consideration of nonservice-connected conditions, and the Veteran had reported leaving work because of nonservice-connected conditions. Although the Director of Compensation and Pension Service found that entitlement to a TDIU on an extraschedular basis was not warranted, the Board still has the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability after referral to the Director of Compensation and Pension Service. See Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) ("[T]here is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."); Wages v. McDonald, No. 13-2694 (Vet. App. January 23, 2015) (per curiam) (finding that the Board erroneously relied upon the determination of the Director of Compensation and Pension Service as evidence, rather than merely "the de facto decision of the agency of original jurisdiction," subject to de novo review). In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to render him unemployable. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Rather, the pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a).) In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by non-service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014). The Veteran has alleged that he is unable to maintain substantially gainful employment as a result of his service-connected disabilities and medications that he takes for those disabilities. The evidence of record shows that the Veteran obtained his GED and attended at least two years of college. A social work note dated January 7, 2010 reports that the Veteran received his bachelor's degree at the North American School of Conservation, as well as a degree in electronics. However, on the Veteran's most recent Application for Increased Compensation Based on Unemployability (VA Form 21-8940), dated March 30, 2010, the Veteran indicated that he only attended two years of college. The Veteran has not been employed since 1999, after working for 30 years for a cement company. The evidence of record shows that the Veteran did not leave employment due to his service-connected disabilities. First, in response to a request for information from the VA, the Veteran's last employer stated that that the Veteran "elected retirement. He did not take disability retirement." In an SSA evaluation form, the Veteran stated that he had stopped working due to retirement, but could no longer do the job due to disabilities resulting from his back and shoulder injuries. Furthermore, the record shows that on March 16, 1998, the Veteran reported that he had been out from work since September of 1997 due to a back injury. Prior to then, he had been able to work despite his right arm/shoulder disability, and was requesting a return to work. Finally, during the appeal period, the Veteran has been inconsistent in his reason for leaving work and has attributed his retirement to various ailments other than his service-connected disabilities, including back pain, leg pain, deep vein thrombosis, blood clots, knee pain, and a heart attack. The Board acknowledges that SSA ultimately found the Veteran to be disabled due to diagnoses of "disorders of muscle, ligament, and fascia," as well as "osteoarthrosis and allied disorders." Although the record is absent for the written determination, the medical records before the SSA and the comments made by an occupational specialist regarding work limitations, suggest that the determination included both the right arm/shoulder disability and non-service-connected back disability. However, SSA disability benefits are predicated upon different laws and regulations than the VA TDIU benefit. For VA purposes, the critical question is whether the Veteran is unemployable solely due to his service-connected conditions. To that end, documents received from SSA indicated that the Veteran's disability complaints centered on his back disability. Furthermore, the occupational specialist commented that the Veteran was able to perform light work, excluding reaching with his right upper extremity, and climbing ropes, scaffolds, and ladders. Other limitations listed, such as climbing stairs, appear to be related to the Veteran's non-service connected back disability. Based on the above, the Board finds that at the time the Veteran stopped working in 1999, his service-connected right arm/shoulder disability did not render him unemployable. The evidence shows that he was able to perform light work. It would be inappropriate for the Board to substitute its own medical opinion for the informed and contemporaneous opinions expressed by the SSA examiner. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In so finding, the Board accords due deference to the contemporaneous opinion rendered by those with expertise in employability issues, who examined the Veteran during the time frame at issue. Nevertheless, the Board has considered whether the Veteran's service-connected disabilities would presently prevent him from obtaining or maintaining substantially gainful employment, regardless of previous causes of unemployability. However, the Board finds that the Veteran's service connected right arm disability, depression, and side effects from related medications do not prevent him from obtaining or maintaining substantially gainful employment. There is no persuasive evidence indicating that the Veteran's right arm/shoulder disability renders him unemployable. Although the Board acknowledges that the Veteran has difficulty with tasks that require overhead reaching with his right arm, the record shows that he is otherwise physically capable of working. See SSA Occupational Specialist Report; August 2010 VA examination; October 2003 VA examination. There is no persuasive evidence indicating that the Veteran's depression renders him unable to work. His 30 percent rating indicates that he has only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. During the 2010 VA examination, a GAF score of 55 was assigned, which represents moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). [The regulations rating psychiatric disorders was recently amended to replace references to DSM-IV to DSM-5 and update the nomenclature used to refer to certain psychiatric conditions. These changes do not apply to claims pending before the Board such as this one. See 79 Fed. Reg. 45093 (August 4, 2014).] The VA examiner noted that the Veteran was able to function independently and manage financial affairs, understand instructions. The examiner opined that the Veteran's persisting mood symptoms did affect, but not preclude, his ability to recall, and therefore follow, instructions. Also, his persisting mood symptoms did affect, but not preclude, attending to tasks for two hours at a time or ability to interact with coworkers, customers, and supervisors. Thus, while the Board acknowledges the adverse impact that the Veteran's right arm disability and depression have on potential employment, the limitations on the Veteran's employment are already recognized by the 60 percent overall rating in effect, and do not equate to an inability to obtain or maintain gainful employment. The Board also finds that the combined effect of his service-connected disabilities and related medications do not render him unemployable. There is no evidence in the record that the Veteran's medications have had an adverse effect on him, to include causing dizziness or drowsiness. Indeed, the Veteran has consistently denied any problems with his medications. VA treatment records dated June 26, 2002, August 20, 2002, October 22, 2002, January 21, 2003, April 22, 2003, June 29, 2005, and August 31, 2011; August 2010 VA examination. The Board acknowledges the October 2003 VA examiner's opinion that due to somnolence caused by his depression medications, specifically Zyprexa and Remeron, the Veteran would be unable to perform sedentary work, and is therefore deemed unemployable. However, again, the Veteran did not report any problems with his medications, even during physician visits to specifically address the effectiveness of his medications. The evidence in the Veteran's medical treatment records is more probative than any single report of sleepiness made to the October 2003 VA examiner. Contemporaneous lay statements found in medical records when medical treatment was being rendered are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper diagnosis and treatment. In contrast, when the Veteran presented his account to the October 2003 VA examiner, he was seeking VA benefits rather than medical treatment. The Board is of course cognizant of possible self-interest which any veteran has in promoting a claim for monetary benefits. Although the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion, it may properly consider the personal interest a claimant has in his or her own case. See Pond v. West, 12 Vet. App. 341, 345 (1999); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board also notes that the Veteran's VA treatment records show that he only took Zyprexa from August 2002 to December 2004. As to Remeron, the Veteran was prescribed that medication only intermittently since April 2002, and stopped taking it altogether by February 2010. Therefore, the October 2003 VA examiner's opinion is not relevant in determining whether the Veteran is currently unemployable due to his service-connected disabilities, as he has not been taking those medications for some time. Furthermore, even while prescribed those medications, the Veteran had a history of non-compliance with his antidepressant medication regimen. VA treatment record dated March 17, 2009; see also VA treatment record dated March 25, 2006 (Veteran reported that he only takes his depression medications when he feels he needs them). Therefore, to the extent that the examiner's opinion may have been relevant at the time it was written, the lack of reported adverse effects combined with the evidence of non-compliance is more probative evidence that the Veteran's medications did not affect his employability. The Board also acknowledges a July 2012 letter from a vocational rehabilitation counselor, stating that the Veteran is "totally disabled from gainful employment." In support of that conclusion, the counselor explained that the Veteran receives a 40 percent rating for his shoulder, a 30 percent rating for hypertension, and takes over 30 pills a day. Based on the severity of the Veteran's two service-connected disabilities and the dizziness and fatigue caused by medications he takes, he is unemployable. The Board finds that several statements in this letter are erroneous. First, the Veteran's medical records show that in July 2012, he was only taking 12 total medications at that time. Based on instructions listed in his active medication list, he would not have needed to take nearly the 30 pills claimed. Of those medications, he takes hydrocodone, and methocarbamol for both service-connected and non-service-connected conditions. The sertraline and trazadone can be solely attributed to his service-connected depression. All other medications are for his non-service connected disabilities. Again, there is no evidence in the record that any medications cause fatigue or dizziness that would preclude employment. Finally, the counselor incorrectly noted that the Veteran receives a 30 percent rating for hypertension. As the counselor's opinion appears to be based on key mistaken facts relayed by the Veteran, it cannot be credible evidence and is afforded no probative weight. Finally, the Board acknowledges a July 2001 vocational rehabilitation letter stating that the Veteran is infeasible for training due to his service-connected disabilities. However, a review of the full report and accompanying documents show that the rehabilitation counselor considered all of the Veteran's physical disabilities, not only his service-connected ones. As the counselor does not specify which disabilities make him infeasible for training or how, the Board affords the letter no probative weight. In summary, the Board concludes that there is no persuasive evidence suggesting that the Veteran would be mentally or physically incapable of performing work due to his service connected disabilities, particularly in light of his work history and additional training and education. Accordingly, his claim for entitlement to TDIU is denied. VA's Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him under the Veterans Claims Assistance Act of 2000 (VCAA). Notice letters dated July 2001, July 2003, March 2010, November 2011, June 2012, and July 2012 are of record. The RO has obtained pertinent medical records including the Veteran's STRs, VA outpatient treatment reports, and private treatment reports identified by the Veteran. The Veteran was also provided thorough medical examinations, and has made no allegations as to the inadequacy of any opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the examination). Thus, the Board finds that no further development is necessary to reach a decision on the claim. ORDER Entitlement to a total disability evaluation based upon individual unemployability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs