Citation Nr: 0813139 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 04-41 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran served on active duty from June 1969 until July 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision from the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In July 2007, the Board adjudicated 8 issues on appeal, and remanded the TDIU claim for further development. Development was completed and a supplemental statement of the case was issued for the TDIU claim. FINDINGS OF FACT 1. Service connection is currently in effect for post- traumatic stress disorder (30 percent); tinnitus (10 percent); and hearing loss (0 percent), for a combined evaluation of 40 percent from May 9, 2003. 2. The veteran reports that he last worked full-time in October 1999, and became too disabled to work in August 2000. The veteran graduated high school and attended a technical college subsequent to service. 3. The veteran's service-connected disabilities alone do not prevent him from securing or following substantially gainful employment, considering the impairment from the disabilities and his educational and occupational background. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated April 2004 and August 2007, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the TDIU claim; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. Pursuant to the July 2007 Board remand, the veteran was afforded VA examinations in connection with his claim. 38 C.F.R. § 3.159. The duties to notify and assist have been met. In light of the Board's denial of the veteran's claim, no effective date will be assigned, so there can be no possibility of any prejudice to the veteran under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For the above reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide the issue discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2007) (harmless error). Analysis The veteran contends that he is entitled to a TDIU. By way of background, the record shows that the veteran graduated from high school and attended a technical college. According to his statements in VA Form 21-527, the veteran last worked as a truck driver 2001 and 2002, earning approximately $40,000 a year. He stated that he became unemployable in January 2003. He indicated that he lost his CDL Licenses as a result of failing his physical. He indicated that could not pass any type of company physical with his PTSD and multiple medical conditions. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2007). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2007). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2007). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 3.321. The record reflects that the veteran does not meet the schedular requirements under the provisions of 38 C.F.R. § 4.16(a). Service connection is currently in effect for Service connection is currently in effect for post-traumatic stress disorder (30 percent); tinnitus (10 percent); and hearing loss (0 percent), for a combined evaluation of 40 percent from May 9, 2003. As the veteran does not have one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher, he does not meet the schedular criteria for TDIU. Notwithstanding, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), as here, an extra- schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Therefore, the Board must evaluate whether there are circumstances in the veteran's case, apart from any non- service-connected condition and advancing age, which would justify a total rating based upon individual unemployability, due solely to the veteran's service-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). On review, the Board finds that the veteran is not entitled to a TDIU. In this regard, the evidence fails to show that his service-connected post-traumatic stress disorder (PTSD), tinnitus, and hearing loss, alone, preclude him from securing or following a substantially gainful occupation. The veteran was afforded VA examinations in order to determine employability, pursuant to the instructions in the July 2007 Board remand. VA examination in October 2007 for assessment of his PTSD symptoms noted that after service, he reported working most of his life as a truck driver, but also reported difficulty sustaining employment with any specific employer. He reported that he last worked in 2002, but the examiner noted that the records showed his last employment was in 2000. The veteran indicated that he functioned well in the past when he was a long distance truck driver and was left on his own, and did not require close supervision. He stated that during periods of close supervision, he would frequently get in conflict with his supervisors, and get fired from jobs. The veteran currently assists his brother in his scrap metal business and rides the truck with him during the day, and assists in some mild physical labor. According to the report, he had a long history of alcohol problems during much of his adult life. He was in a treatment program in Alabama for three months in early 2006. His current level of drinking depends on how much alcohol was available to him, which depended on what or how much his brother would buy for him. He denied that alcohol was a significant problem when he worked in the past. He admitted to marijuana and cocaine use in the past, but stated that he had no used any since he completed rehabilitation in 2006. The veteran complained of occasional period of dreams and flashbacks to Vietnam. He becomes tearful and depressed. He described himself as a loner, tending to avoid people and outside situations. He reported spending most of his day helping his brother with the business and avoids the public and interacting with others. He is hypervigilant in public and startles easily. He had difficulty sleeping and slept better during the day. He had difficulty trusting and getting close to others. Examination revealed normal speech patterns. He exhibited a generally appropriate affect, but became somewhat teary eyed when talking about his Vietnam-related trauma. He reported a depressed and withdrawn mood. There were no findings of hallucinations or delusions, formal thought disorder, or suicidal ideations. His cognition and insight appeared grossly intact. The diagnoses were PTSD, alcohol abuse, and cocaine abuse (in remission). The Global Assessment of functioning score assigned was 55. The examiner found that given the veteran's history, he appeared able to handle some limited employment in certain situations which did not involve direct critical supervision. Although he does report moderate PTSD symptoms, the examiner opined that these symptoms are not of the severity and intensity to totally make him unemployable at this time. The problem with alcohol abuse also confined his employability. The likelihood of working successfully would increase significantly if he was abstinent from alcohol. VA audiological examination in October 2007 indicated that the veteran exhibited mild to moderate high frequency hearing loss in the right ear and normal hearing in the left ear. The veteran's tinnitus was recurrent and constant. The examiner found that the veteran's hearing status does not preclude gainful employment. He was counseled on the use of hearing aids, and wearing hearing protection in noise. The clinical evidence does not support a finding that the veteran's service-connected tinnitus and hearing loss are particularly disabling from an employment standpoint. Based on a review of the record, the Board finds that the level of impairment to the veteran's employment is adequately reflected in the disability evaluations he currently receives for his service-connected disabilities. While there is evidence of record reflecting that the veteran's PTSD impairs his ability to work in jobs requiring direct supervision, there has been no showing that veteran would be unable to work in a job that he is capable of performing (given his education and experience) due solely to his service-connected disabilities. The Board acknowledges that the veteran is competent to give evidence about what he experienced. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Board has determined that the medical evidence, particularly the VA examinations performed in October 2007, are more probative of the issue, and that it outweighs the lay statements of the veteran that his service-connected disabilities render him totally unemployable. As found by the October 2007 VA examiner, the veteran is clearly demonstrating symptoms of PTSD. However, the examiner opined that the veteran was successful in employment in the past when he worked in a solitary situation that did not involve direct supervision, and he maintained his sobriety. The examiner opined that the veterans' PTSD symptoms are not of the severity and intensity to totally make him unemployable at this time. Both October 2007 VA examination reports are probative evidence as they were based upon examination of the veteran and review of the claims folder. Based on the foregoing evidence, the Board finds that TDIU under the provisions of 38 C.F.R. § 4.16(b) is not warranted. The Board again acknowledges that the veteran does have some employment impairment due to his service-connected disabilities, however, the Board finds that the record does not demonstrate that the veteran's service-connected disabilities, in and of themselves, are of such severity as to preclude his participation in all forms of substantially gainful employment. The RO determined that the veteran was not unemployable due to his service-connected disabilities alone and decided not to refer the case to the Director of Compensation and Pension for an extra-schedular determination. For the reasons stated above, the Board is in agreement with that assessment. Because a preponderance of the evidence is against assigning a TDIU in this case, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER The claim is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs