Citation Nr: 1127869 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 06-02 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to April 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which increased the Veteran's disability rating for PTSD from 30 percent to 50 percent. In January 2010, the Board increased the Veteran's disability rating to 70 percent as of May 18, 2005, and remanded the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.) The RO issued an SSOC in November 2010 in which it denied entitlement to a TDIU. The case has now been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. Service connection is currently established for PTSD, rated as 70 percent disabling; and residuals of a pilonidal cystectomy, rated noncompensable. The Veteran's combined evaluation is thus 70 percent disabling. 2. The Veteran's service-connected disabilities are not of such severity as to render him unable to obtain or maintain substantially gainful employment. 3. The Veteran has reported that his current period of unemployment began in 1973 due to a back injury, and the Veteran has been in receipt of unemployment benefits from the Social Security Administration (SSA) since June 1974 for a cervical disc syndrome. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.340, 3.341, 4.15, 4.16, 4.18 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist the Veteran Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A January 2010 letter, provided to the Veteran before the November 2010 supplemental statement of the case, satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, since it informed the Veteran of what evidence was needed to establish his claim, what VA would do and had done, and what evidence he should provide. The letter also informed the Veteran that it was his responsibility to help VA obtain medical evidence or other non-government records necessary to support his claim. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The Veteran was provided with such notice in January 2010. In this regard, after initially providing Dingess notice in January 2010, the RO readjudicated the claim in a supplemental statement of the case in November 2010. Thus, the timing defect in the notice has been rectified. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). In addition, the Veteran has never alleged how a timing error prevented him from meaningfully participating in the adjudication of his claim. As such, the Veteran has not established prejudicial error in the timing of VCAA notice. Shinseki v. Sanders and Simmons, 129 S. Ct. 1696 (2009). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its January 2010 remand. Specifically, the RO was instructed to send the Veteran a VCAA notice letter and VA Form 21-8940, readjudicate the claim, and, if unfavorable, issue an SSOC. The RO sent the notice letter and forms in January 2010, and issued an SSOC in November 2010. With respect to VA's duty to assist, the RO obtained, or made reasonable attempts to obtain, all relevant evidence identified by the Veteran. The Veteran's available service treatment records and VA treatment records have been obtained. VA has obtained the Veteran's SSA records and associated them with the claims file. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). Thus, the Board considers the VA's duty to assist satisfied. Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. Laws and Regulations Pertaining to TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total (100 percent), when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. Analysis: TDIU due to Service-Connected Disabilities The Veteran currently has the following service-connected disabilities: PTSD, rated as 70 percent disabling; and residuals of a pilonidal cystectomy, rated noncompensable. The Veteran's combined evaluation is thus 70 percent disabling. In the present appeal, the Veteran has submitted some evidence showing that he is unable to work as a result of his service-connected PTSD, and the Board has considered that evidence. However, as explained below, the Board finds that the most probative evidence of record shows that his service-connected disabilities do not make it impossible to follow a substantially gainful occupation. The Veteran's claim for TDIU arises out of his representative's November 2009 statement that "based on the Veteran's level of dysfunction, it would not be reasonable to assume that he could maintain any type of gainful employment." Additionally, as the Board noted in its remand, VA clinicians in June 2005, July 2005, October 2005, April 2006, May 2006, and June 2006 opined that the Veteran had occupational problems. As an initial matter, the Board notes that the Veteran has been in receipt of unemployment benefits from the SSA since June 1974, for a cervical disc syndrome. SSA did not list either PTSD or residuals of a pilonidal cystectomy as reasons for his unemployment. The Veteran told the May 2010 VA examiner that he has not been employed since 1973. In March 2010, a VA physician and medical director of the PTSD Clinical Team (PCT) treated the Veteran. The Veteran reported that he lives alone, and that his wife had died two years previously. The Veteran also reported that he cannot stay focused on anything because his memory and concentration are poor. The Veteran stated that his PTSD medications cause sedation. He also stated that he has flashbacks, and gets angry and rageful at little things, but not quite violent. The Veteran further reported that he has difficulty keeping his thoughts and following sequential steps of operation. He noted that he has at least a couple of panic attacks every week. The Veteran also reported having suicidal thoughts at least twice per month. He stated that he has nightmares almost every night. The VA physician performed a Mental Status Examination (MSE), and found that the Veteran was alert and oriented to person, time, place, and situation. He further found that the Veteran's speech was productive, his psychomotor was agitated, his affect was flat, his mood was depressed, and his anxiety was high. He found that the Veteran's thought process was logical and goal directed, and that he had no suicidal ideation, homicidal ideation, delusions, ideas of reference, preoccupations, obsessions, compulsions, hallucinations, or illusions. The VA physician further found that the Veteran had average intelligence based on his verbal ability and fair insight and judgment, and was grossly intact cognitively. The March 2010 VA physician diagnosed the Veteran with PTSD, anxiety not otherwise specified (nos), and insomnia due to PTSD, and assigned a Global Assessment of Functioning (GAF) score of 43. The VA physician noted that, "in my opinion, [the Veteran] is unable to be employed due to his Ptsd medical condition." VA provided the Veteran with a compensation and pension (C&P) examination of his PTSD in May 2010. The examiner, a Doctor of Psychology (Psy.D.), reviewed the Veteran's claims file and medical records. The Veteran reported that he had been employed doing construction work, but that he sustained a back injury at work in the 1970's and has not worked since then. The VA examiner noted that the Veteran "said that his back and neck problems would no longer prevent him from working. [The Veteran] said that it is only now that his posttraumatic stress disorder that would prevent him from working." The Veteran reported that he was maintaining his own activities of daily living, and the examiner found that he appeared capable of managing his funds. He also reported having chronic suicidal ideation without any plan or intent. The VA examiner noted that the Veteran "complains that he has nightmares nearly every night. He said that it is the same nightmare every night which is running from a fire. It is unusual for an individual to experience the exact same nightmare every night with PTSD. He also complains of having flashbacks every day or 2. However, when asked about his recent flashback, he reported that he had a flashback of the oil rig exploding that just happened in the gulf [of Mexico]. That seemed unusual because he was not exposed to an explosion but rather a fear of an explosion [in service]. He was asked if he had had flashbacks about his own experiences, [and] he reports that he has had those [too] every couple of days. He said that in his own flashbacks, he is getting into a vehicle and driving off with his clothes soaked in fuel. He says that he is moody and has problems with anger and irritability....[The Veteran] reports that he only gets 4 to 6 hours of sleep total per night. He says that he wakes up every 1 to 2 hours. There is some discrepancy in his reporting of how he is sleeping [on the one hand] and in his reporting of [his] nightmares [on the other]. He is reporting a very short sleep of maybe 1 hour which would [make it] hard for him to enter into a [Rapid Eye Movement, or REM] state where he could have a nightmare. He reports that his last girlfriend left him. However, he has a new woman who is a friend who he thinks may [become] a girlfriend in the future. He said that another friend introduced them. While he reports not having much social functioning he must have enough social functioning that he is being introduced to women to date." The Veteran also reported having poor concentration and attention, and driving infrequently due to anxiety about fuel trucks and road rage. The VA examiner noted that "when asked what would keep him from working, he said if someone told him what to do or criticized him he may hurt them. However, he denies any history of hurting anyone....He [also] says that he continues to drive to the grocery store without a problem and does not think that he would [ever] actually harm someone [while] driving his car." The VA examiner administered an MSE. The examiner found that the Veteran was alert, attentive, and oriented to person, place, time, and situation. The examiner wrote that the Veteran "fidgeted with his hands during the interview but it was noted that...he was not doing this in the waiting room." The examiner found that the Veteran had average intellectual functioning, based on his vocabulary. The examiner noted that the Veteran's mood was essentially euthymic, his thought processes were goal-directed, and his thought content was within normal limits. The examiner wrote that the Veteran "complained of concentration problems during the interview. However, he was able to spell WORLD forwards and backwards without difficulty which suggests adequate concentration." The examiner opined that the Veteran "complains of problems with concentration but his concentration was adequate throughout this evaluation and did not appear to represent a problem for him that would interfere with work." The examiner further opined that the Veteran's PTSD "symptoms appear to fall in the moderate range....His attention and concentration would appear adequate for work. While he complains that he has fears that he may hurt someone if he had to work[,]....there is no evidence that he has done so in the past or has even come close to doing so." The VA examiner diagnosed the Veteran with chronic PTSD and assigned a GAF score of 55 to 60. The examiner concluded that "based on his ability to perform this interview, [the Veteran] appears capable of interacting with others at least adequately. There is no evidence that his symptoms rise to a level that would make him unemployable....There is no evidence that his posttraumatic stress disorder renders him unemployable." Where, as here, conflicting medical opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). Greater weight may be placed on one clinician's opinion than another's based on the reasoning in the opinions, and whether and to what extent the clinicians reviewed the Veteran's prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds that the May 2010 VA examiner's medical opinion is entitled to greater probative weight than the March 2010 VA physician's opinion because it contains more persuasive reasoning. For example, the March 2010 physician noted the Veteran's complaints that he cannot stay focused on anything because his memory and concentration are poor, and that he has difficulty keeping his thoughts and following sequential steps of operation. However, the March 2010 physician found during the MSE that the Veteran was alert and oriented to person, time, place, and situation; his thought process was logical and goal directed; he had no delusions; and he had average intelligence based on his verbal ability, fair insight and judgment, and was grossly intact cognitively. The May 2010 VA examiner similarly found based on MSE testing that the Veteran was alert, attentive, and oriented to person, place, time, and situation; his thought processes were goal-directed; and his thought content was within normal limits. The May 2010 VA examiner also described the specific testing given-namely, spelling "world" forwards and backwards-and found that the Veteran was able to do so "without difficulty which suggests adequate concentration." Because the March 2010 VA physician's stated MSE findings were incompatible with the Veteran's complaints that his level of cognition would preclude employment, and because the May 2010 VA examiner's stated MSE findings were compatible with the conclusion that he is employable, the Board finds that the May 2010 VA examiner's report is entitled to greater probative weight. The Board further finds that the C&P examiner's specific discussions of inconsistencies between the Veteran's reports of the severity of his disability, and his history and MSE test results to the contrary, renders the C&P examination report more probative. In addition to the discrepancies between the Veteran's stated concentration problems and the concentration test results determined by the examiner, the examiner's finding that the Veteran had no history of violence significantly rebutted his assertion that he could become violent if he had to work. Although the March 2010 VA physician noted some PTSD symptoms on MSE testing that could potentially interfere with employment-such as agitated psychomotor, flat affect, depressed mood, and high anxiety-he did not provide a specific rationale for how the severity of these or other reported symptoms would prevent employment in the Veteran's case. By contrast, the May 2010 C&P examiner explained in great detail how the Veteran's cognitive testing, history of no violence, and social interactions contributed to her conclusion that the Veteran could maintain employment with his level of PTSD symptoms. In addition to the foregoing, the Board finds that the Veteran's own determination regarding his employability is outweighed by the more probative findings of the May 2010 VA examiner, because her determination is based on greater medical knowledge and experience. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Because there is not sufficient evidence of unemployability due to service connected disabilities, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). As such, the Veteran's claim is denied. ORDER A TDIU due to service-connected disabilities is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs