Citation Nr: 1300461 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-48 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) and bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from March 1943 to March 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied entitlement to a TDIU due to service-connected disabilities. In November 2012 the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran is currently service connected for PTSD, rated as 30 percent disabling prior to August 28, 2012 and 50 percent disabling thereafter; bilateral hearing loss, rated as 20 percent disability; and tinnitus, rated as 10 percent disabling. 2. The highest combined rating for compensation is 60 percent, effective from August 28, 2012. 3. The Veteran completed ninth grade and worked as a self-employed carpenter or builder until he retired in 1982 or 1987. 4. Competent medical evidence indicates that the Veteran is not incapable due solely to his service-connected disabilities of securing or following a substantially gainful occupation that is consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a total disability rating due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a February 2010 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for a TDIU, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The case was readjudicated in September 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment and personnel records, post service private and VA treatment records, lay statements and hearing testimony, and VA examination reports and medical opinions. In summary, VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Relevant Law and Regulations In order to establish service connection for a total disability rating based upon individual unemployability (TDIU) due to service-connected disability, there must be an impairment so severe that it is impossible 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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 his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of a TDIU. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). III. Facts and Analysis The Veteran contends that his service-connected PTSD and bilateral hearing loss disabilities render him unemployable. The Veteran is service connected for PTSD, rated as 30 percent disabling prior to August 28, 2012 and rated as 50 percent disabling from August 28, 2012; bilateral hearing loss, rated as 20 percent disabling; and tinnitus, rated as 10 percent disabling. His combined rating is therefore 60 percent, effective August 28, 2012, and less than 60 percent prior to the date the increased rating for his PTSD became effective. See 38 C.F.R. § 4.25. Thus, the Veteran does not meet the schedular requirements for a TDIU due to service-connected disabilities under 38 C.F.R. § 4.16(a) even after August 28, 2012. However, the Board must still determine whether the Veteran's service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a TDIU is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. In his May 2009 claim for a TDIU and in prior statements in support of his claim of entitlement to service connection for multiple claimed disabilities, the Veteran reported that he completed ninth grade and worked as a self-employed carpenter or builder until he retired in 1982. He indicated that he had never received disability benefits from the Social Security Administration or worker's compensation benefits. During a November 2009 VA audiological examination, the Veteran indicated that he worked in construction for approximately 50 years. He described difficulty hearing his wife when she speaks to him and having to ask for frequent repetition during conversations. He stated that his tinnitus did not prevent him from performing any activities of daily living. Describing effects that the Veteran's bilateral hearing loss would have on his occupational activities, the audiologist remarked that the Veteran would likely have difficulty hearing conversational speech in noise. The audiologist believed that the Veteran would likely perform better in situations where he could see the face of the person speaking to him. The Veteran underwent VA examination in December 2009 to evaluate his claimed PTSD disability. He reported that after separation from service, he learned carpentry over the years, working for himself and then out of a union for the last 15 to 16 years of his career until he retired in 1987. He described "very good" relationships with his current wife and daughter from that marriage and a more distant relationship with his daughter from his first marriage. He stated that he did not spend much time with friends or have close friends. After describing his PTSD symptoms in detail, the examiner's impression was that the impact on social functioning, by the Veteran's report, appeared to be mild, and the impact on his occupational functioning during his working years was moderate and occasional. The Veteran stated that on numerous occasions when working as a carpenter, he would become flooded with memories and stop working; typically, his supervisor had to get him to return to work. The Veteran reported that this did not occur daily, but occurred numerous times throughout the years. Following a mental status examination, the examiner assigned a Global Assessment of Functioning (GAF) score of 58 and indicated that the Veteran experienced moderate PTSD symptoms on a fairly persistent basis. The examiner noted that the Veteran was able to remain employed throughout his post-military years, maintaining relatively good functioning with occasional impairment. The examiner elaborated that there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to intrusive thoughts and associated distress, but overall, the Veteran's work functioning was satisfactory. After receipt of the Veteran's February 2010 claim for a TDIU, the December 2009 VA examiner provided an addendum medical opinion in April 2010, which addressed the Veteran's PTSD and the effects it had on the Veteran's employability. The examiner outlined the review of her December 2009 report and opined that it was more likely than not that the Veteran's service-connected PTSD did not provide sufficient impact on the Veteran's functioning to result in unemployability. Supporting her opinion, she noted the Veteran's report that he had worked as a carpenter and retired and that there were numerous times throughout the years in which the Veteran's supervisor had to intervene to get him to return to work after a he would stop working due to intrusive memories. The examiner reiterated that while the Veteran's PTSD symptoms clearly interfered with his life, at the time of the December 2009 examination, they were not deemed to be at the level of severity to preclude employment. In April 2010, the Veteran presented for a VA audiological evaluation. He reported difficulty hearing while watching television and understanding conversational speech if others do not look at him. He indicated that he attended veterans meetings once per month and exercised at the YMCA three days a week and had difficulty hearing in those situations due to background noise. Hearing aids were ordered and issued to the Veteran at a subsequent appointment. In correspondence received in June 2010, the Veteran stated that had suicidal thoughts, which caused problems with his social interactions. He stated that he could not perform any type of work due to flashbacks, mood swings, depression, and sleeping problems associated with his PTSD. He added that he had problems with hearing loss and was getting new hearing aids. In support of his claim for a TDIU and for other claimed disabilities, the Veteran submitted treatment records from multiple private medical providers dated from years prior to the receipt of his present claim through July 2012. These records do not reflect ongoing complaints or treatment related to the Veteran's service-connected PTSD, bilateral hearing loss, or tinnitus. Rather, in treatment records dated from March to September 2010, the Veteran denied depression, anxiety, memory problems, mood changes, insomnia, anxiety, suicidal ideation or attempts, or psychosis. He stated that he had been doing well and remained quite active, exercising regularly at the YMCA. Psychiatric examination findings were reported as follows: alert and fully oriented, normal judgment and insight, normal mood, and appropriate affect. At the same time, the Veteran claimed entitlement to service connection for many other physical disabilities, such as cancer and urological problems, heart or cardiovascular problems, and pulmonary problems. The private treatment records did, in fact, reflect ongoing complaints, evaluation, and treatment for these disorders; however, service connection is not in effect for any of these claimed disabilities. The Veteran was afforded another VA audiological examination in August 2012 for the purpose of determining the effects of his bilateral hearing loss disability on his employability. He reported that his service-connected tinnitus did not impact his ability to work. Following a review of the claims file and audiological examination, the audiologist opined that based upon hearing impairment alone, the Veteran would be expected to be employable. Supporting her conclusion, the audiologist noted that while the Veteran's hearing loss posed challenges to hear and understand normal conversational speech, this inability to recognize speech sounds typically improves with binaural inputs (hearing with both ears at the same time) and visual cues (the ability to see the communicator's face). The audiologist further noted that the Veteran faces additional challenges communicating in environments with background noise, multiple talkers, or distant speech; and he would be expected to have mild to moderate difficulty hearing conversations on the telephone. The audiologist reported that the Veteran would perform best in communicative environments that allow for face to face interactions to support visual cues. The audiologist concluded that notwithstanding other disabilities, physical and/or sedentary employment would be limited to positions that do not require normal hearing for safety, but not excluded by current hearing levels. The Veteran also appeared for a VA PTSD examination in August 2012. He stated that since his last VA examination, his nightmares, intrusive thoughts, and bouts of crying had increased in frequency and severity; he was observed becoming tearful during the examination when discussing his war experience during the assault on Iwo Jima. He reported that he had been married for 50 years with two children and described his family relationships as "good." He endorsed depressed mood, anxiety, mild memory loss, impaired abstract thinking, disturbances of motivation and mood, and difficulty adapting to stressful circumstances such as work or a worklike setting. The examining psychologist opined that the Veteran's PTSD symptoms had increased in frequency and severity since the last examination. The examiner concluded that the Veteran's occupational and social impairment was characterized by reduced reliability and productivity, but not by total occupational impairment or even occupational and social impairment with deficiencies in most areas. As noted above, the assigned rating for the Veteran's PTSD was increased to 50 percent, effective August 28, 2012, the date of the VA PTSD examination. In November 2012 the Veteran testified that he had never been fired from a job and did not have physical or mental complications during his working years. When asked whether his PTSD had become worse since filing his claim for a TDIU, the Veteran replied that he guessed it was a little worse because he received an increase of 20 percent. He stated that he believed he would have a problem keeping a job due to his PTSD, particularly because he could not concentrate; he believed PTSD was his biggest problem, although he denied receiving any current treatment for PTSD. He also reported feeling frustrated by asking others to repeat themselves due to his hearing loss. The preponderance of the above evidence is against any finding that the current impairment from his service-connected disabilities is so severe that it is impossible for him to follow a substantially gainful occupation. The December 2009, April 2010, and August 2012 VA examiners described challenges the Veteran would face in an employment setting due to his PTSD and bilateral hearing loss, but concluded that the Veteran could perform work of physical and/or sedentary nature. The record contains no opinion to contradict these findings. As such, the preponderance of the evidence of record demonstrates that the Veteran is capable of obtaining and maintaining gainful employment. In reaching the above decision, the Board has considered the lay statements submitted by the Veteran in support of his claim. The Board notes that his June 2010 statement describing mood swings, depression, and sleeping problems is contradicted by contemporaneous private treatment records in which he denied such symptoms, and such symptoms were not found on psychiatric examination. The Board also observes that while his statements about occasionally stopping work due to intrusive memories and about difficulty hearing are credible, these challenges did not preclude gaining or maintaining employment in the past. Rather, he has consistently reported working in construction for approximately 50 years until his retirement. These lay statements, therefore, do not demonstrate entitlement to a TDIU. The Board also considered the various medical opinions addressing the effects of the Veteran's service-connected disabilities on his employability. In this regard, the Board finds that the opinions are persuasive and probative evidence against the claim for a TDIU due to service-connected disabilities because they are based on a review of the claims file, physical examination, and supported by an articulated medical rationale that is consistent with the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). As such, in light of the various VA examination reports and medical opinions, and the evidence of record, the Board finds assignment of an extraschedular evaluation is also unwarranted. The evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation consistent with his education and decades of work experience as a carpenter solely due to his service-connected disabilities. The evidence shows that these disorders are limiting, but the evidence does not indicate that the Veteran is physically or mentally incapable of engaging in employment as a result of his PTSD or bilateral hearing loss disabilities. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to TDIU benefits must be denied. ORDER Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs