Citation Nr: 1128917 Decision Date: 08/05/11 Archive Date: 08/11/11 DOCKET NO. 08-37 724 ) 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. WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active military service from August 1971 to February 1979. His awards and decorations include the Combat Infantryman Badge (CIB), among others. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2010, the Veteran presented testimony at a hearing before the undersigned Acting Veterans Law Judge at the RO (Travel Board hearing). In addition, the Veteran also testified at a hearing before RO personnel in April 2009. The transcripts of both hearings are associated with the claims folder. FINDINGS OF FACT 1. The Veteran has one service-connected disability: PTSD, rated as 70 percent disabling. The combined service-connected disability rating is 70 percent, meeting the schedular percentage criteria for TDIU (under the combined rating table). 2. With regard to a TDIU, there is an approximate balance of favorable and unfavorable evidence insofar as whether the Veteran's service-connected PTSD disability prevents him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria for entitlement to TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Review of the claims folder shows compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In any event, since the Board is granting the TDIU claim at issue, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102. Governing Laws and Regulations with Analysis - TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In this case, the Veteran contends that he is unable to handle or secure gainful employment due to his service-connected PTSD. He states that he stopped working as cook in June 2005, due to symptoms of his PTSD. He had worked at the same restaurant for 13 years, but had a serious altercation with another co-worker, so he quit. At other times, he has stated that he was "fired." In any event, the restaurant subsequently closed down after Hurricane Katrina. Despite applying for other employment as a cook, he says no one will hire him because of his PTSD. He also relates that he self-medicates his PTSD symptoms with alcohol and marijuana use, although at the March 2010 hearing and at the May 2009 VA psychological examination he indicated he has curtailed his alcohol and drug use. He attests his worsening depression, anxiety, impaired memory and concentration, anger, and irritability prevents him from dealing with co-workers at any job. He has had continuous mental health treatment for his PTSD from VA since 2005. He prefers to be alone, and is socially isolated from friends and family. The Veteran completed high school. He is currently 60 years of age. See September 2007, October 2008, and August 2009 VA Forms 21-8940 (Applications for Increased Compensation Based on Unemployability); March 2008 Notice of Disagreement (NOD); December 2008 VA Form 9; August 2005 VA mental health consult; June 2007 VA psychiatry note. In this case, the Veteran has one service-connected disability: PTSD, rated as 70 percent disabling. The combined service-connected disability rating is 70 percent. See 38 C.F.R. § 4.25 (combined ratings table). Therefore, the percentage criteria for TDIU are met. 38 C.F.R. § 4.16(a). Consequently, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Id. In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). As to the evidence against the award of a TDIU, VA treatment records dated from 2005 to 2009 document treatment for several significant nonservice-connected disorders including heart problems, hepatitis C, prostate problems, and glaucoma. In fact, a November 2005 VA mental health clinic follow-up note stated that the Veteran was no longer able to work as a cook in the food-service industry due to his nonservice-connected hepatitis C. Moreover, a January 2006 VA psychological examiner opined that the Veteran was not employable because of his hepatitis C. It was noted that although the Veteran had a conflict with another employee at the restaurant he had worked at for 13 years, his supervisor accommodated the Veteran by placing him on a different shift. In addition, the VA examiner stated that the restaurant the Veteran worked at no longer existed after Hurricane Katrina. See also March 2008 NOD. In short, implicitly, these records attest to the occasional severity of the Veteran's nonservice-connected disorders in relation to his inability to secure employment, as well as other logistical factors. In addition, on his September 2007, October 2008, and August 2009 TDIU applications, the Veteran never remarked that he left his cook job due to a disability. Moreover, the Veteran underwent additional VA psychological examinations in April 2008 and May 2009 with the same VA examiner. This VA examiner opined that the Veteran was "magnifying" his PTSD symptoms during the evaluation. The VA examiner noted that the sweating the Veteran complained about had nothing to do with his PTSD. The VA examiner concluded there was no evidence that the Veteran was unemployable due to his PTSD. Rather, the VA examiner related that the Veteran's chronic substance and alcohol abuse causes impaired concentration and attention, as well as short-term memory loss and depression. It was assessed at the April 2008 VA examination that the substance abuse disorder was more likely making him unemployable at that time, rather than distinct PTSD symptomatology. Overall, in summary, there is some probative evidence against a TDIU rating. As to the evidence in support of an award of a TDIU, credible lay statements, hearing testimony, and argument from the Veteran throughout the course of the appeal provide some support for his claim. Moreover, a February 2007 VA psychological examiner found that the Veteran's PTSD was "severe," such that he lives in complete social isolation on a house boat, and that when he worked he had difficulty with employers due to his PTSD symptoms. This VA examiner opined that the Veteran's PTSD was so "severe" that it would be difficult for him to function in an employment setting. This opinion was thorough and supported by discussion and explanation. In addition, July 2007, September 2007, and February 2008 VA psychiatric nurse practitioner notes assess that "forcing this Veteran to work could possibly endanger himself and others." She cites his symptoms of social isolation, difficulty concentrating, anger, depression, short-term memory loss, and fearfulness as factors affecting his ability to function. The VA nurse practitioner concluded that due to his PTSD symptoms, he is unable to perform occupational duties and is no longer able to sustain meaningful employment. There was "little hope" for improvement in his symptoms. Further, a VA physician in a June 2007 VA psychiatric note remarked that the Veteran "is unable to work due to his mental disorder." Finally, the Board acknowledges that it was assessed at the April 2008 VA examination that substance abuse and alcohol disorders are more likely making the Veteran unemployable at that time, rather than distinct PTSD symptomatology. However, in May 2009 the same VA examiner stated her belief that it was "impossible" to completely separate the substance abuse disorder and his service-connected PTSD. On this point, VA psychiatric treatment notes dated in May 2007 and June 2008 apprised that the Veteran self-medicated with drugs and alcohol for his PTSD for the past 30 years. At the March 2010 Travel Board hearing, even though the Veteran reported curtailing his alcohol and drug use, he still described significant PTSD symptomatology. The Board finds this evidence is entitled to significant probative value in support of a TDIU award. In short, there is clear, credible, and probative medical and lay evidence in support of a TDIU in the present case. With regard to his diagnoses of alcohol and substance abuse, the Board is cognizant that when it is not possible to separate the effects of the service-connected condition versus a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor, thus attributing such signs and symptoms to the service-connected PTSD disability, as is the case here. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)). The Board acknowledges that the Veteran is able to perform many aspects of daily living. He is also able to fish and hunt. But it is also noted that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity, such as the Veteran in this case. See 38 C.F.R. § 4.10. Moreover, a Veteran does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a). Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Board realizes the severity of the Veteran's nonservice-connected disorders and the Veteran's advancing age (60), as factors that likely also affect his ability to work. But once again, his advancing age and nonservice-connected disorders cannot be considered for purposes of TDIU. 38 C.F.R. § 4.19. Apart from that, even without consideration of the effect of the Veteran's nonservice-connected disabilities, certain evidence of record reveals the Veteran's service-connected PTSD and related substance-abuse disorders, standing alone, prevent him from securing employment. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In adjudicating this TDIU claim, the Board has also considered the doctrine of reasonable doubt. As the U.S. Court of Appeals for Veterans Claims (Court) has written: A unique standard of proof applies in decisions on claims for Veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a Veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). See, too, 38 C.F.R. § 3.102. The Court noted that under this standard, when the evidence supports the claim or is in relative equipoise (about evenly balanced for and against), the appellant prevails. Where the "fair preponderance of the evidence" is against the claim, the appellant loses and the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 56. "A properly supported and reasoned conclusion that a fair preponderance of the evidence is against the claim necessarily precludes the possibility of the evidence also being in an approximate balance." Id. at 58. The Court has further held that where there is "significant evidence in support of the appellant's claim," the Board must provide a "satisfactory explanation" as to why the evidence is not in equipoise. Williams v. Brown, 4 Vet. App. 270, 273 (1993). In the present case, there is an approximate balance of the positive and negative evidence for the TDIU issue. The contrasting medical and lay evidence of record are all very probative. But in such situations, the benefit of the doubt is resolved in the Veteran's favor. Overall, the Board is satisfied that the Veteran's service-connected PTSD clearly prevents him from securing or following substantially gainful employment. 38 C.F.R. § 4.16. Accordingly, his TDIU claim is granted. 38 C.F.R. § 4.3. ORDER A TDIU is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ TARA L. REYNOLDS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs