Citation Nr: 1108965 Decision Date: 03/07/11 Archive Date: 03/17/11 DOCKET NO. 05-12 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to October 1990. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2008, the Board remanded the claim for additional development. FINDING OF FACT The Veteran's service-connected disabilities are: depression, not otherwise specified, with anxiety, evaluated as 50 percent disabling, residuals, multiple hemorrhoidectomies with history of anal fissure, evaluated as 30 percent disabling, residuals, left ankle injury, evaluated as 20 percent disabling, patellofemoral syndrome, left knee, evaluated as 20 percent disabling, hypertension, evaluated as 10 percent disabling, and tinnitus, evaluated as 10 percent disabling; his combined evaluation is 80 percent. 2. The Veteran's service-connected disabilities do not preclude him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321(b)(1), 4.16(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. TDIU The Veteran asserts that he is entitled to TDIU. He has asserted that a grant of his claim is warranted, in part, because he has previously been determined to be disabled by the Office of Personnel Management. See Veteran's appeal (VA Form 9), received in April 2005. The Board first notes that in January 1995 and April 1997, the RO denied claims for TDIU. In each case, there was no appeal, and the RO's decisions became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2007). In May 2003, the Veteran filed his claim. In February 2004, the RO denied the claim. The Veteran has appealed. As an initial matter, in March 2008, the Board remanded this claim. The Board stated that the Veteran should be provided with a VCAA letter, and that he should be afforded examinations, to include a psychiatric examination, and that an opinion be obtained with regard to his employability. In May 2008, the Veteran was sent a VCAA notice that is in compliance with the Board's remand. In April 2010, the Veteran was afforded VA general medical, and psychiatric, examinations. In each case, the examiners stated that his C-file had been reviewed. An opinion as to employability was obtained, which is adequately supported. Given the foregoing, there is no basis to find that either of these reports are inadequate, or that a remand for another examination or opinion is required. See 38 C.F.R. § 3.159(d) (2010); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448- 9 (2000). Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA' s Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Id. GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Id. In the Veteran's claim (VA Form 21-8940), received in May 2003, he indicated that he had two years of college, and that he had worked for VA as a full-time clerk between 1997 and April 2002. See also VA Form 21-8940, received in May 2008. The Veteran's service-connected disabilities are: depression, not otherwise specified, with anxiety, evaluated as 50 percent disabling, residuals, multiple hemorrhoidectomies with history of anal fissure, evaluated as 30 percent disabling, residuals, left ankle injury, evaluated as 20 percent disabling, patellofemoral syndrome, left knee, evaluated as 20 percent disabling, hypertension, evaluated as 10 percent disabling, and tinnitus, evaluated as 10 percent disabling; his combined evaluation is 80 percent. The medical evidence is summarized as follows: VA progress notes, dated between 2002 and 2007, show that overall, the Veteran received a number of treatments for symptoms that included hypertension, joint pains, and psychiatric symptoms. His GAF scores ranged between 70 and 81. In 2002, the Veteran received treatment for alcohol abuse that included antabuse. He reported that he was under investigation at his job regarding his use of sick leave, and stated that he was required to undergo breathalyzer tests several times per week in association with misdemeanor probation for a DUI (i.e., a charge of driving under the influence). In 2004, he underwent his third treatment program for alcohol abuse, as well as treatment for tobacco abuse. He requested a sports and fitness program "for exercise and to keep fit," which he started in November 2004. A May 2005 report notes that he had quit drinking eight months before, and that he exercised three times per week. Reports, dated in May 2005 and August 2006, show that the Veteran reported that he had no problems with activities of daily living. Reports dated in November 2006 note that the Veteran's depressed mood was improved, and that his depression was in full remission. A February 2007 report notes that the Veteran reported that he had no muscle pain, weakness, or difficulty with ambulation, restriction of motion, motor or sensory disturbances, or history of depression. On examination, his station and gait were normal. A VA joint examination report, dated in August 2003, shows that the diagnoses were hypertension, allergic rhinitis, a limited range of motion in the left ankle with mild degenerative changes and an old evulsion fracture, limited range of motion of the knees, depression with alcohol dependence, hemorrhoids, irritable bowel syndrome, and low back pain. A VA hypertension examination report, dated in June 2006, shows that the examiner stated that the Veteran's C-file had been reviewed. The examiner noted that the Veteran had had a stable course since onset, with use of medications and some associated light-headedness. The diagnosis was essential hypertension. A VA intestinal examination report, dated in June 2006, shows that the examiner stated that the Veteran's C-file had been reviewed. The examiner noted that the Veteran complained of bloating, fatigue, and diarrhea. He complained that he avoided amusement parks and certain foods. On examination, there was no anemia. The report notes "none" to severe effects on daily activities. The examiner concluded that the Veteran's hypertension, history of anal fissures, and hemorrhoids prevented him from working at a job involving physical or strenuous activity, but that he could work in a sedentary job. The examiner explained that there would have to be evidence of weight loss and malnutrition in order to conclude he was unemployable, but that in fact, the Veteran had gained weight, and that there was no evidence of malnutrition. The examiner further stated that the Veteran's hypertension was well-controlled on medications, that there was no clinical evidence of an anal fissure, and that his visualized hemorrhoids were not of the usual severity. A VA joint examination report, dated in June 2006, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran reported left ankle pain, that he used a cane and a brace, that he could walk one mile, and that he could stand more than one hour but less than three hours. The report notes "none" to "prevents" effects on daily activities. An X-ray for the left ankle was noted to show a tiny bone beneath the medial malleolus that was probably an old un-united fracture. The examiner concluded that the Veteran's residuals of a left ankle injury prevented work in a physical or strenuous occupation, but that he was employable in a sedentary job. A VA general medical examination report, dated in April 2010, shows that the examiner stated that the Veteran's C-file and medical records had been reviewed. The examiner noted that the Veteran complained that he could not work due to a combination of multiple problems. He further complained of symptoms that included constant bilateral knee pain and popping, dizziness, diarrhea, abdominal pain, bloating, fatigue, and left ankle pain, weakness, locking, and instability, with flare-ups every other day. The report notes "none" to "prevents" effects of his left ankle and hemorrhoid symptoms on daily activities. The examiner concluded that the Veteran's hypertension, bilateral knee pfps (patellofemoral pain syndrome), left ankle fracture, IBS (irritable bowel syndrome), and hemorrhoids would impact his ability to maintain gainful employment in an occupation in anything but a sedentary-only job (in fact, service connection is not currently in effect for a right knee disability, or IBS). A VA psychiatric examination report, dated in April 2010, shows that the examiner stated that the Veteran's C-file and medical records had been reviewed. The examiner noted that the Veteran reported that he stayed home most of the time watching television or using his computer. He stated that he had retired due to disability in 2003. He reported taking medication for control of his psychiatric symptoms. He complained that he had three to four panic attacks per week, and that he easily lost his temper. The report notes a history of voluntarily quitting three jobs. The Axis I diagnoses were depressive disorder NOS, anxiety disorder NOS, and alcohol dependence in sustained, full remission. The Axis V diagnosis was a GAF score of 60 (current). The examiner characterized his symptoms as moderate to severe depression, and noted impairment of his academic and occupational functioning. In an addendum, dated in August 2010, the examiner stated that the Veteran's depressive disorder NOS and anxiety disorder NOS do not prevent him from being gainfully employed. The examiner explained that the Veteran's treatment reports showed that his depressive symptoms had improved, that his prognosis for improvement of his psychiatric symptoms is considered to be favorable, and that his symptoms were likely to result in continued impairment in social and occupational functioning, but that his depressive symptoms were not considered severe enough to prevent him from being gainfully employed. VA vocational rehabilitation reports include an October 1999 report which shows that the Veteran reported a history that included part-time attendance at a business college for one year, during which time he took classes in computer operations and medical terminology. The report concluded that he could be moved from unemployment services case status to rehabilitated case status. Another report states that he had completed all scheduled employment activities and that he is suitably employed. See VA Form 119, dated in October 1999. Reports from the Office of Personnel Management (OPM), dated in 2003, indicate that OPM determined that the Veteran was disabled effective April 2002, and that he had been removed from his job in July 2002, due to an acquired psychiatric disorder, which exacerbated his hemorrhoids and his irritable bowel disorder. See also March 2010 OPM statement (affirming its earlier decision). The claims file include lay statements from the Veteran's brother, and spouse, received in May 2008, who assert that the Veteran has fallen, or "almost fallen" while ambulating in his home, and that he has daily depression and pain. The Veteran's spouse further asserts that he is unemployable. The Board finds that the evidence is insufficient to show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As an initial matter, the Board has considered the OPM reports, which indicate that he was determined to be unemployable in 2002. However, at the time he was removed from this employment he is shown to have been receiving treatment for alcohol abuse, to include use antabuse, to have been required to undergo breathalyzer tests several times per week in association with misdemeanor probation for a DUI charge, and that he was under investigation for his use of sick leave. To the extent that his alcohol abuse impaired his employability, compensation is not payable for a disability that is a result of the appellant's own alcohol or drug abuse. Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351. This legislation also applies to increased rating claims. See VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). Furthermore, the OPM's basis for its decision does not clearly set forth physical or psychiatric findings, nor does it appear to have been based on a medical opinion that is accompanied by a detailed rationale. In this regard, a February 2003 OPM report (Standard Form 3105E) indicates that the OPM's decision was not based on a physician's statement, or its equivalent, nor was it based on an agency report of federal medical examination. The Board further notes that the OPM's 2003 decision indicates that the Veteran was thought to be disabled, in part, due to a disorder for which service connection is not currently in effect, i.e., "irregular bowel syndrome." See also June 2005 OPM report. In addition, the Veteran's GAF scores indicate no more than moderate symptoms. The June 2006 and April 2010 VA opinions all show that the Veteran was determined to be employable in a sedentary position. In particular, the April 2010 opinions are considered highly probative evidence against the claim, as they are the most recent opinions of record, and they are shown to have been based on a review of the Veteran's C-files. See 38 C.F.R. § 4.2 (2010); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board has also considered the lay statements, however, lay testimony is not competent to prove a matter requiring medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Finally, the Board points out that the Veteran is shown to have a number of disorders for which service connection is not currently in effect, to include irritable bowel syndrome, a low back disorder, and a right knee disorder. In summary, the Board finds that the most competent and probative evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disabilities. The Board therefore concludes that the preponderance of the evidence is against the claim that the Veteran is currently precluded from engaging in substantial gainful employment by reason of her service-connected disabilities. Entitlement to TDIU is thus not established under 38 C.F.R. § 4.16(a). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in July 2003, July 2006, and in May 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post- service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records, and OPM records. The Veteran has been afforded examinations, and opinions have been obtained. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs