Citation Nr: 0813068 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 05-36 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran served on active duty from May 1969 to April 1972. This appeal to the Board of Veterans' Appeals (Board) is from August 2004 and March 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that the RO has treated the veteran's PTSD claim as a claim to reopen; however, the Board has determined that the VA Form 9 submitted by the veteran in March 2005 is a timely notice of disagreement with the August 2004 decision denying service connection for PTSD. Therefore, the Board will address this claim on a de novo basis. In January 2008, the veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The veteran did not participate in combat with the enemy and no stressor supporting a diagnosis of PTSD has been verified. 2. The veteran's service-connected disabilities are currently assigned a combined rating of 80 percent. 3. The veteran is unable to obtain or maintain any form of substantially gainful employment due the combined effects of his service-connected disabilities. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the veteran has been provided all required notice in response to his claim for a TDIU. In addition, the evidence currently of record is sufficient to substantiate this claim. Therefore, no further development is required with respect to this claim. The record also reflects that the veteran was provided adequate VCAA notice in response to his PTSD claim, to include notice that he should submit any pertinent evidence in his possession, in a letter mailed in March 2004, prior to the initial adjudication of the claim. Although the veteran was not provided notice with respect to the disability-rating or effective-date element of the claim until March 2006, after the initial adjudication of the claim, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for PTSD. Consequently, no disability rating or effective date will be assigned, so the failure to provide timely notice with respect to those elements of the claim is no more than harmless error. The record also reflects that the veteran's service medical and personnel records have been obtained, as have pertinent post-service medical records. Although further development to verify his claimed stressors has not been undertaken, the Board has determined that no such development is required in this case because the veteran has been unable to provide the detailed information required to verify any of his claimed stressors. Neither the veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate this claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA. Accordingly, the Board will address the merits of the claims. PTSD Legal Criteria Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran contends that he has PTSD due to various stressors while serving in Vietnam, to include landing in areas where combat was occurring and in areas where combat had recently occurred. He also contends that he sustained a shell fragment wound for which stitches were required. His service personnel records indicate that he served in Vietnam as a field radio relay equipment repairman from May 1971 to May 1972. He did not receive any award indicative of his participation in combat. His service medical records do not document the alleged shell fragment wound or any evidence of a psychiatric disorder. The post-service medical evidence shows that he has been diagnosed with PTSD due to combat stressors; however, there is no corroborating evidence of any of the veteran's alleged stressors and the veteran has been unable to provide sufficient details to permit verification of any of the claimed stressors. The Board has not found the veteran's statements in support of the claim to be sufficient to establish his participation in combat. In view of the fact that the veteran received no award indicative of his participation in combat, the absence of any corroborating evidence of his participation in combat, and the veteran's inability to provide specific details concerning his alleged stressors, the Board must conclude that the preponderance of the evidence establishes that he did not participate in combat with the enemy. In light of this conclusion and the absence of any corroborating evidence of a non combat stressor, service connection is not warranted for PTSD. TDIU Legal Criteria A TDIU may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a) (2007). The central inquiry is, "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2005); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis Service connection is currently in effect for diabetes mellitus type II, with a 20 percent rating assigned. Service connection is also in effect for diabetic peripheral neuropathy of the lower extremities, with a 40 percent disability rating assigned for each leg. In addition, service connection is in effect for diabetic peripheral neuropathy of the upper extremities, with a ten percent rating assigned for each upper extremity; and for erectile dysfunction, currently rated noncompensable. Thus, the veteran satisfies the percentage rating requirements of 38 C.F.R. § 4.16(a). The question that remains is whether his service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The veteran's last gainful employment ended in March 2003, when he was involved in a motor vehicle accident with resultant trauma to his lower extremities, to include a left leg tibia/fibula fracture. In a February 2006 report, a VA vocational rehabilitation counselor specifically addressed the issue of employability. She stated that the veteran was infeasible for vocational rehabilitation services. In support of this finding, she noted that the veteran was seriously limited in his ability to return to gainful employment due to his significant medical problems. In light of his work history, including physical labor and activity, she found that he cannot do work as presently trained. She further opined that the veteran was not able to retrain in a formal academic program. She then specifically stated that he was unemployable. In May 2006 the veteran underwent a VA examination to ascertain the severity of his service-connected diabetes mellitus. His diabetes was characterized as non-optimally controlled. An electromyogram obtained in connection with this examination was reported to show severe sensory motor peripheral neuropathy of the upper and lower extremities. In November 2006, a VA physician stated that the May 2006 EMG disclosed definite evidence of severe sensory motor diabetic peripheral neuropathy of both lower extremities and mild to moderate sensory motor diabetic peripheral neuropathy of both upper extremities. In an August 2007 VA neurology examination report, the examiner disputed to some extent the severity of the veteran's upper extremity peripheral neuropathy, but did note the veteran's work history as a pipe fitter and current unemployment. After conducting a physical examination and considering the veteran's May 2006 EMG report, he found that the veteran had peripheral neuropathy of the lower extremities. He believed that the veteran was capable or working in a sedentary position. With respect to his education and employment history, the veteran has a high school equivalency degree. As reported in his TDIU claim, he worked for 30 years as a pipe fitter, a career which would require ambulation, fine motor control, and lifting. The veteran testified at the Travel Board hearing that he was last employed in March 2003. He also testified that he has largely recovered from his motor vehicle accident residuals and his current physical limitation is primarily his neuropathy. Finally, due to constraints from driving and construction work, he expressed that he did not feel he could go back to his former occupation. Although the veteran stopped working due to non service- connected disability, the Board is of the opinion that the evidence satisfactorily establishes that his service- connected disabilities are sufficient to preclude more than sedentary employment. Based on the veteran's limited education and occupational background, the Board also finds that the veteran is not qualified to obtain and maintain employment in a sedentary position. Accordingly, the Board concludes that he is unemployable due to his service- connected disabilities. ORDER Entitlement to service connection for PTSD is denied. A total disability rating based on individual unemployability due to service-connected disabilities is granted, subject to the criteria applicable to the payment of monetary benefits. ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs