Citation Nr: 1120619 Decision Date: 05/26/11 Archive Date: 06/06/11 DOCKET NO. 06-33 702 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE 1. Entitlement to a total disability compensation rating based on individual unemployability (TDIU rating), during the period from January 12, 2004 to June 6, 2009. 2. Entitlement to a TDIU rating during the period since June 6, 2009. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1954. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2004 decision by the RO in Los Angeles, California that granted an increased 30 percent rating for service-connected PTSD, effective from January 12, 2004. The Veteran appealed for an increased rating. The Veteran initially requested a Board hearing, but by a statement dated in November 2006, he withdrew his hearing request. In a December 2009 decision, the Board granted an increased 70 percent rating for PTSD, effective prior to June 6, 2009, with a 30 percent rating effective from that date, and remanded the inferred issue of entitlement to a TDIU rating, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In a December 2009 rating decision, the RO effectuated the Board's decision, assigning a 70 percent rating for PTSD from January 12, 2004 to June 6, 2009. The case was subsequently returned to the Board. In January 2011, the Veteran's claims folder was referred to a VA physician for an opinion regarding the effect of his service-connected disabilities on his employability. See 38 C.F.R. § 20.901 (2009). By letter dated in March 2011, the Board informed the Veteran that such an opinion had been requested and furnished him a copy of the opinion. He was also provided with notice that he had 60 days to respond. No response was received from the Veteran. A written brief was provided by his representative, and the claim is now before the Board for appellate consideration. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The issue of service connection for dementia, including as secondary to service-connected PTSD, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU rating from June 6, 2009, including on an extraschedular basis, is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran's service-connected posttraumatic stress disorder (PTSD) was rated 10 percent disabling from August 8, 1995; 70 percent disabling from January 12, 2004; and 30 percent disabling from June 6, 2009. 2. During the period from January 12, 2004 to June 6, 2009, the Veteran's service-connected disabilities met the schedular requirements for assignment of a total disability rating based on individual unemployability, as a combined disability evaluation of 80 percent was in effect. The disability ratings during that period were as follows: posttraumatic stress disorder (PTSD) (70 percent disabling), residuals of shell fragment wound of the left jaw (10 percent disabling), and tinnitus (10 percent disabling). 3. The Veteran's service-connected disabilities have been shown to be of such severity as to preclude substantially gainful employment during the period from January 12, 2004 to June 6, 2009. CONCLUSION OF LAW The criteria for a TDIU rating have been met during the period from January 12, 2004 to June 6, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice regarding the claim for a TDIU rating was sent to the Veteran in January 2010, along with a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). The Veteran did not respond, and did not return a completed VA Form 21-8940. The TDIU claim was adjudicated in a July 2010 supplemental statement of the case. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Analysis As noted in the Board's December 2009 decision and remand, the inferred TDIU claim was considered to have been raised by the record and to be a component of the Veteran's prior claim for an increased rating for PTSD. The Board previously remanded this issue in December 2009, for a VA examination and for adjudication by the RO. The Veteran seeks a TDIU rating based on the effect of his service-connected disabilities on his employability. He has not been employed full-time for several years. 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. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA regulations allow for the assignment of a TDIU rating when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable 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). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU rating is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether the Veteran is entitled to a TDIU rating, neither non-service-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the period from January 12, 2004 to June 6, 2009, the Veteran's service-connected disability ratings were as follows: posttraumatic stress disorder (PTSD) (70 percent disabling), residuals of shell fragment wound of the left jaw (10 percent disabling), and tinnitus (10 percent disabling). During this period, he had one disability ratable at more than 40 percent, and the combined schedular evaluation was 80 percent. Therefore, he met the minimum schedular criteria for a TDIU rating during the period from January 12, 2004 to June 6, 2009. 38 C.F.R. § 4.16(a). At a September 1995 VA psychiatric examination, the Veteran described PTSD symptoms which were especially severe after he returned from Korea but which had gradually abated, co-occurring with a severe problem with alcohol dependence. He said he had nightmares years ago, but not recently. He said he began drinking alcohol heavily during service in Korea, and continued to do so until 1993. He said he did maintenance work and had worked intermittently at a bowling alley for 20 years but was unable to work consistently, as he was homeless at times, drinking heavily. He reported that he had been sober for two years and had never sought mental health treatment. He spent much of his time taking walks or reading. The diagnoses were PTSD, largely in remission, and alcohol dependence in sustained remission times two years. In a November 1995 rating decision, the RO granted service connection and a 10 percent rating for PTSD, effective from August 8, 1995. The Veteran filed a claim for an increased rating for PTSD on January 12, 2004, stating that the condition had worsened. A November 24, 2003 VA outpatient treatment record reflects that the Veteran complained of being haunted by recurrent memories of wartime. He also complained of flashbacks, and said he drank alcohol for years to avoid remembering combat experiences. He said he still dropped to his knees when he heard a car backfire. He reported that he could work but did not want to. By a letter dated in March 2004, L.D., Ph. D., a clinical psychologist from a Vet Center, stated that the Veteran had been seen at the Vet Center for PTSD since early December 2003, and was seen weekly on an individual basis. He indicated that the Veteran's symptoms included agitation, depression, anxiety, nightmares, intrusive thoughts, grief, survivor guilt and avoidance of war memories. Dr. D. indicated that the Veteran was "extremely traumatized" and was able to distract himself for most of his life through work, marriage, and alcohol abuse, but had none of these distractions currently, and his PTSD had become overwhelmingly intrusive. He opined that the Veteran's PTSD symptoms had interfered with his emotional/psychological functioning to the degree that he was completely and totally disabled. The diagnosis was PTSD, and the global assessment of functioning (GAF) was 45. By a letter dated in July 2005, Dr. D. reiterated some of his prior findings, and noted that the Veteran's primary difficulty was intrusive thoughts, which increased his anxiety and affected his physiological functioning. Dr. D. opined that the Veteran was seriously traumatized and deserved a 100 percent rating, as he was completely disabled and had hallucinations, was unable to concentrate, severe anxiety, unemployable, frequent confusion, regular panic attacks, suicidal thoughts and severe depression. The diagnosis was PTSD and the GAF was 45. A report of an August 2005 VA jaw examination reflects that the Veteran reported that he was an alcoholic until 1995 and was currently retired from maintenance. He said he had an element of PTSD as he had remembered more of his friends and war activities since he had discontinued alcohol. VA outpatient treatment records dated from 2005 to 2006 do not reflect treatment or medication for PTSD, although the diagnosis is listed on his problem list. An October 2006 social work note reflects that the Veteran declined medication for PTSD and had broken sleep. By a statement dated in November 2006, the Veteran said he had gross impairment in thought process, persistent hallucinations, memory loss, and deficiencies in work, family relations, judgment, mood, had suicidal ideation, depression, and relationship issues. By a letter dated in March 2007, G.M.K.S., MD, stated that the Veteran had been her patient since August 2001. She said he suffered quite severely from daily PTSD and isolation, was withdrawn, was unable to hold a job and had recurrent nightmares. She stated, "Of all the veterans whom I have cared for, his case of PTSD is one of the worst and he deserves a significant increase in his service connected disability rating. Frankly, I feel he deserves to be 100% service connected solely on the basis of the severity of this disorder." Subsequent medical records reflect that the Veteran now has significant dementia. On examinations performed in February and April 2008 to evaluate the Veteran's need for regular aid and attendance, the examiner noted that the Veteran had some cognitive impairment and early dementia, and clearly had memory loss. He was currently living with his daughter, who assisted him with his medication. While he was living alone, he was non-compliant with his medication. Pertinent diagnoses were PTSD and cognitive impairment/early dementia. A January 2009 VA neurology admission note reflects that the Veteran's daughter stated that the Veteran had a decline in cognitive status in the past year, and that approximately six months ago the family noticed that his memory was significantly worse in that he no longer recognized his daughter. The examiner indicated that the Veteran likely had some level of dementia preceding one year. Further testing was planned to evaluate the likely etiology of the dementia. At a psychiatric examination performed for VA on June 6, 2009, the Veteran reported that he had not received treatment for his psychiatric condition in the past year. The Veteran was unable to provide accurate information to the examiner, and his daughter often answered the questions on his behalf. He said he was currently not working and had not worked for 25 years because he ran out of work. The examiner noted that the Veteran was not a reliable historian. Memory was severely impaired; he forgot the names of close relatives, own occupation, own name. He was unable to recall his work history. He was mostly dependent on his daughter who had to remind him to bathe and change his clothes at times. The examiner indicated that the Veteran's prior diagnosis of PTSD was changed to dementia, because the Veteran did not meet the diagnostic criteria of PTSD, as due to his memory problems, he was unable to recall his symptoms presently. The examiner noted that the Veteran occasionally had difficulty performing activities of daily living because of dementia. Memory problems impaired his functioning in many areas of his life. As noted above, in December 2009 the Board remanded the appeal for a TDIU rating partly for a VA medical opinion as to the effects of the Veteran's service-connected disabilities on his employability. A March 2010 VA medical opinion was provided by a physician who indicated that he was a general medical practitioner and was not psychiatrically trained. He stated that he had reviewed the Veteran's claims file. The examiner opined that the Veteran's service-connected tinnitus and left lower molar condition had no effect on his ability to secure or follow a substantially gainful occupation if he were to pursue one. He stated that since the diagnosis of PTSD was changed to dementia, it was speculative to conclude what effect the Veteran's previously diagnosed PTSD would have on his ability to secure or follow a substantially gainful occupation. He indicated that recent medical notes showed that the Veteran was unable to work because of his non-service-connected dementia. In January 2011, the Board sought the opinion of a specialist in the Veteran's Health Administration (VHA). 38 C.F.R. § 20.901(a) (2010). The opinion was obtained in February 2011. In a February 2011 medical opinion, a VA psychiatrist indicated that he had reviewed the Veteran's claims file, and summarized pertinent findings. He noted the Veteran's treatment for PTSD, and that the Veteran's clinical picture was complicated and further impaired by the onset of dementia around 2009. He opined that the Veteran was unable to secure or follow a substantially gainful occupation, if he were able to pursue one, solely due to his service-connected disabilities, during the period from January 12, 2004 to June 5, 2009. The psychiatrist also opined that as the June 2009 VA examiner did not obtain sufficient information from the Veteran's daughter regarding his behavioral manifestations of PTSD, he was uncertain as to the validity of that examiner's dropping the diagnosis of PTSD. After a review of the evidence of record, the Board notes that there is some evidence weighing against a finding of unemployability due to service-connected disabilities throughout the period in question. Specifically, the record reflects that in November 2003 the Veteran said he could work but did not want to, and beginning in about 2008, it is clear that he was becoming increasingly impaired by his non-service-connected dementia. It is not shown that his other service-connected disabilities (tinnitus and residuals of a shell fragment wound of the jaw) rendered him unable to secure or follow a substantially gainful occupation. See March 2010 VA medical opinion. However, bearing in mind the benefit-of-the doubt rule (38 U.S.C.A. § 5107(b)), as well as the medical opinions by Drs. D. and S., and that of the February 2011 VA examiner which are collectively to the effect that he was totally disabled by PTSD, the Board finds that during the period in question, the weight of the evidence shows that his service-connected PTSD played a major role in his impaired ability to secure and maintain gainful employment. One reasonable interpretation of the evidence is that the service-connected disabilities (particularly PTSD) alone were of a nature and severity to prevent the Veteran from maintaining gainful employment during the period from January 12, 2004 to June 6, 2009. With application of the benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)), the Board holds that such is the case. Accordingly, the criteria for a TDIU rating are met during the period from January 12, 2004 to June 6, 2009, and this benefit is granted. ORDER A TDIU rating is granted during the period from January 12, 2004 to June 6, 2009, subject to VA regulations governing the payment of monetary benefits. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim for a TDIU rating from June 6, 2009. As noted previously, the Veteran's non-service-connected dementia has become significantly disabling, and the issue of service connection for dementia, including as secondary to service-connected PTSD, has been raised by the record and is referred to the AOJ for appropriate action. During the period from June 6, 2009, the Veteran's service-connected disabilities do not meet the schedular requirements for assignment of a total disability rating based on individual unemployability, as a combined disability evaluation of 40 percent is in effect. See 38 C.F.R. § 4.16(a). His service-connected disability ratings from that date are as follows: PTSD (30 percent disabling), residuals of shell fragment wound of the left jaw (10 percent disabling), and tinnitus (10 percent disabling). However, even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU rating is warranted if the Veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In this case, the Board finds that the issue has been raised by the evidence of record, and referral for consideration of an extraschedular TDIU rating is warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Based on the foregoing, the Board finds that the issue of entitlement a TDIU rating from June 6, 2009, including on an extraschedular basis, should be remanded for referral to the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for entitlement to a TDIU rating from June 6, 2009 to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 4.16(b) for consideration of whether an extraschedular rating is warranted. 2. If the benefit sought on appeal is denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs