Citation Nr: 1300869 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-12 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John R. Worman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1976 to June 1979 and from December 1980 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA) which established service connection for posttraumatic stress disorder (PTSD). Appellate jurisdiction was subsequently transferred to the RO in Chicago, Illinois. In January 2011, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. In March 2011, the Board granted entitlement to increased ratings for PTSD and remanded for additional development the TDIU issue. The requested development has been substantially completed. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The evidence demonstrates the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities effective from August 17, 2007. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities were met effective from August 17, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court" have been fulfilled by information provided to the Veteran in letters dated in March 2006 and December 2008. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private treatment reports, and the Veteran's statements and testimony in support of his claim. The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); 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). The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). There is no indication that a retrospective medical opinion would be useful in this case. The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. TDIU Claim VA law provides that a total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages 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. 38 C.F.R. § 4.16(a) (2012). The Court has held that a claim for a TDIU is generally a rating theory and "not a separate claim for benefits." Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Court has held that a claim for unemployability compensation was, in essence, an application for an increased rating. See Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Isenbart v. Brown, 7 Vet. App. 537 (1995). The Court has also held that a total rating based upon individual unemployability was merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under VA's Schedule for Rating Disabilities. See Norris v. West, 12 Vet. App. 413, 420-421 (1999); see also Roberson v. Principi, 251 F.3d 1378 (2001). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2012). The Court has held that in determining entitlement to a total disability rating based upon individual unemployability neither nonservice-connected disabilities nor advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. §§ 3.102, 4.3 (2012). In this case, a review of the record shows the Veteran's TDIU claim arose from his request for an increased rating for his service-connected PTSD on October 3, 2005. A May 2006 rating decision, in pertinent part, granted an increased 30 percent rating for PTSD effective from October 3, 2005. The Veteran subsequently perfected his appeal as to the assigned 30 percent rating. A March 2011 Board decision granted entitlement to increased schedular ratings for PTSD and denied referral for extraschedular consideration. An April 2011 rating decision established a 30 percent rating for PTSD effective from June 27, 2004, and a 70 percent rating effective from May 8, 2009. VA records also show service connection is established for degenerative changes of the left hip (10 percent), degenerative changes of the right hip (10 percent), impingement tendonitis of the left shoulder (10 percent), degenerative changes of the lumbar spine (10 percent), patellofemoral pain syndrome of the left knee (10 percent), post-operative sesamoidectomy of the left foot with plantar fasciitis, hallux valgus, and Achilles tendonitis (10 percent), bilateral tinnitus (10 percent), patellofemoral pain syndrome of the right knee (10 percent), hemorrhoids (0 percent), gastroesophageal reflux disease (0 percent), residual skin tag removal scar (0 percent), onychomycosis of the first toenails (0 percent), and allergic rhinitis (0 percent). Combined service-connected disabilities evaluations were 70 percent effective from June 27, 2004, 80 percent effective from October 3, 2004, 90 percent effective from May 8, 2009, 100 percent effective from July 22, 2010, and 90 percent effective from September 1, 2010. VA treatment records dated in November 2004 noted the Veteran reported that since retiring from service he had experienced difficulty working with "non-professionals" that did not take the job seriously. The examiner provided diagnoses of PTSD and major depressive disorder. A June 2005 report noted the Veteran was upset about having been scheduled for the graveyard shift at work which he believed was retaliation for his having discussed a fellow employee's inappropriate behavior. In July 2005, he reported that he had resigned from his employment. In December 2005, he reported he felt limited in his ability to work certain jobs due to arthritis and that he was distressed by working a very low paying job. An April 2006 VA joints examination report included an opinion from the orthopedic evaluator that "the sum total of the [V]eteran's claimed orthopedic conditions would prevent him from doing any high demand, physical type of job such as construction work." It was noted, however, that he should be able to continue in his present job as a security agent. An April 2006 VA general medical examination report noted the examiner's opinion that the Veteran's service-connected gastroesophageal reflux disease, hemorrhoids, onychomycosis, and allergic rhinitis did not prevent him from obtaining or retaining employment. An April 2006 VA PTSD examination report noted the Veteran continued to work as a security guard which he had done on a fairly regular basis since his military retirement in 1997. It was noted he was working full time for VA during the daytime and was working part time for a private security company in the evenings. He reported managing his work fairly well, but was having significant interactional difficulties. The examiner provided a diagnosis of PTSD. As to employability, the examiner noted he was able to sustain gainful employment despite PTSD symptoms with a lack of energy, anxiety, and high levels of irritability that would limit the types of jobs he could perform. It was noted that he would best function in jobs that were not too complex, that did not require frequent contact with co-workers and supervisors, and did not require frequent interaction with the public. VA treatment records dated in December 2006 noted the Veteran talked about quitting work and about the stress of working with his pain and psychiatric problems. It was noted he was still working two security jobs and that he had been denied state disability benefits. An October 2007 report noted he had been fired from his VA employment on August 17, 2007, and that he had recently been approved for state disability benefits. The Veteran reported that he believed he was no longer able to work due to his PTSD anger issues in February 2008. VA treatment records dated in May 2009 noted the Veteran admitted himself for treatment of his PTSD symptoms. Records show he requested a note explaining that because of his physical and emotional ailments he was not appropriate for security guard work. Diagnoses of PTSD and major depression were provided. A July 2009 report noted he had stopped working after his hospital admission in May 2009. VA examination in August 2009 included an Axis I diagnosis of recurrent major depression with psychotic features. The examiner noted that the Veteran was currently unemployed and that over time he had experienced difficulty establishing and maintaining effective work relationships. In a June 2010 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he had become too disabled to work in May 2009. He reported having completed high school with no other education or training before he became too disabled to work. At his hearing in January 2011 the Veteran testified that he was not working and that he had not worked since May 2009. He reported having been fired twice from employment because of his PTSD. VA general medical examination in February 2011 included diagnoses of historically mild allergic rhinitis, onychomycosis of the great toes, right knee scar status post skin tag removal with no functional residual abnormality, gastroesophageal reflux disease, and mild intermittent symptoms historically of internal hemorrhoidal disease. It was the examiner's opinion that based upon the medical findings there was no indication these disorders would prohibit active employability at that time. VA examination in February 2011 included diagnoses of PTSD and major depressive disorder secondary to PTSD. The examiner found the Veteran's symptoms of PTSD and depression appeared to have a severe impact on his occupational functioning. A March 2011 VA clinical psychologist medical opinion found, based upon the Veteran's report and a review of treatment and examination records, that as a result of his PTSD he was more likely than not unable to maintain employment. An April 2012 VA audiologist report noted the Veteran's tinnitus would not likely impede his ability to work. Based upon the evidence of record, the Board finds the Veteran is shown to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities effective from August 17, 2007. VA records show he met the schedular criteria for a TDIU under the provisions of 38 C.F.R. § 4.16(a) prior to that date due to combined service-connected disability ratings of at least 70 percent and combined orthopedic system disabilities greater than 40 percent, but that the evidence shows he was gainfully employed prior to August 17, 2007. VA treatment records note he was fired from VA employment as a security guard on this date and that he was subsequently only able to maintain part-time employment prior to his termination of all employment in May 2009. The Board finds that the overall evidence demonstrates the Veteran was unable to work more than part-time after August 17, 2007, due to his physical and psychiatric service-connected disabilities. Although the record indicates he had earlier employment problems related to his PTSD, there is no factually ascertainable evidence that his employment prior to August 17, 2007, was not substantially gainful. Therefore, entitlement to a TDIU effective from August 17, 2007, but no earlier, is granted. ORDER Entitlement to a TDIU effective from August 17, 2007, is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs