Citation Nr: 1301181 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-01 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to July 1968. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran's service-connected disabilities are: a below-the-knee amputation of his left leg (rated as 40% disabling); posttraumatic stress disorder (PTSD) (30%); diabetes mellitus, type II (20%); residuals of multiple fragment wounds of his right leg and pretibial area (10%); neuropathy of the median nerve of his left arm (10%); bilateral tinnitus (10%); amputation of the tip of his left index finger (0%); and scars as residuals of shell fragment wounds of his left forearm (0%); for a combined rating of 70 percent since March 26, 2008, and 80 percent since March 5, 2010. 2. These service-connected disabilities, alone, so irrespective of his advancing age and disabilities unrelated to his military service, preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. CONCLUSION OF LAW The criteria are met for a TDIU. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, though, the Board need not discuss whether there has been VCAA compliance because the claim is being granted, regardless. See, e.g., 38 C.F.R. § 20.1102 (2012) (harmless error). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, the Veteran, not VA, has the evidentiary burden of proof of showing there is a VCAA notice or assistance error and, moreover, above and beyond that, showing how the error is unduly prejudicial, meaning outcome determinative of his claim). There is no possibility of this in this instance since he is receiving the requested benefit. The Veteran contends that he is entitled to a TDIU since his service-connected disabilities render him unemployable. A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. 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 advancing age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. But disabilities resulting from common etiology will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities are: a below-the-knee amputation of his left leg (rated as 40% disabling); PTSD (30%); diabetes mellitus, type II (20%); residuals of multiple fragment wounds of his right leg and pretibial area (10%); neuropathy of the median nerve of his left arm (10%); bilateral tinnitus (10%); amputation of the tip of his left index finger (0%); and scars as residuals of shell fragment wounds of his left forearm (0%); for a combined rating of 70 percent since March 26, 2008, and 80 percent since March 5, 2010. Thus, even as of March 26, 2008, he satisfied the threshold minimum rating requirements of § 4.16(a) for consideration of a TDIU, that is, without having to resort to the special extra-schedular provisions of § 4.16(b). There still, however, needs to be probative evidence of his unemployability on account of his service-connected disabilities. See Hodges v. Brown, 5 Vet. App. 375 (1993) and Blackburn v. Brown, 4 Vet. App. 395 (1993) (indicating VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU). And as the Court explained in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability. So the mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough. Id. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. See also 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So resolution of this appeal ultimately turns on whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). And as the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). In this case, according to an August 2008 VA mental health examination report, it is at least as likely as not the Veteran's industrial adaptability is impaired by the increase of his PTSD symptoms and the fact that he can no longer work because of he lost his leg when injured in combat. The examiner further determined that it is at least as likely as not the Veteran's PTSD symptoms of sleep impairment, irritability, and hypervigilence would interfere with employment. In January 2009, the Veteran filed his TDIU application (VA Form 21-8940). He indicated that he had last worked full-time in 2003 as a mail handler with the U. S. Postal Service, and that he became too disabled to work due solely to his service-connected disabilities, which he listed as the below-the-left-knee amputation, PTSD, fragment wounds of his right leg and left arm, and tinnitus. He also indicated that he had completed just two years of college. In April 2009, he had a VA mental health examination to reassess the severity of his service-connected PTSD. In terms of employability, the examiner noted the Veteran did not appear to have explored other means of employment and likely would benefit from having some source of structure in his life. However, the examiner also stated that the Veteran's mood disturbances, as well as limited motivation and interest, had significantly interfered, more likely than not, with his becoming gainfully employed again. Although he perceived himself to have functioned well when working at the post office, the examiner thought that management may have viewed him differently. The examiner felt that the Veteran would not likely present well to a prospective employer given his considerable difficulty focusing and articulating himself during the examination. Another April 2009 VA examiner determined the Veteran's tinnitus alone should not significantly affect vocational potential or limit participation in most work activities. In May 2009, the Veteran also had a VA general medical examination to determine the impact, if any, that his service-connected disabilities have on his employability. His gait revealed a mild limp favoring his left prosthesis. His left lower extremity was characterized by a stump measuring 15 cm from the inferior pole to the patella to the end of the stump. Multiple shrapnel scars on his right leg were observed. His left hand functioned normally and there were no clinical signs of neuropathy, although he had a traumatic absence of the very tip of his left index finger. Diagnoses of left below-the-knee amputation and loss of the tip of the left index finger were continued. It was noted that his scars caused no impairment and he had normal left hand function. Considering those diagnoses, the examiner stated that the Veteran should be capable of a job that required only a light level of activity. The examiner believed the Veteran should be able to stand and walk at least 4-6 hours per day and lift and carry up to 20 pounds occasionally and 10 pounds frequently. To the contrary, according to a VA telephone encounter note received in March 2010, the Veteran's primary care physician, a VA staff physician, stated that the Veteran's below-the-left knee amputation, multiple fragment wounds on his right leg, neuropathy of the median nerve of his left arm, and PTSD prevent him from gainful employment. This statement bears the physician's signature personally attesting this is his belief and medical opinion. As there is competent medical evidence for and against the claim, resolution of the appeal turns on the probative weight of this evidence, with the Veteran prevailing if the evidence as a whole either favors the claim or is about equally balanced for and against the claim, i.e., in relative equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board may appropriately favor the opinion of one competent medical authority over another, provided that it offers an adequate reasons and bases for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). And a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. 444, 448-499 (2000). While the Board may not reject a medical opinion based on its own unsubstantiated medical conclusions, see Obert v. Brown, 5 Vet. App. 30, 33 (1993), the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the Court has stated that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . [and that] the credibility and weight to be attached to these opinions [are] within the province of the adjudicator." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the Veteran has been unemployed since 2003. Although the May 2009 examiner concluded the Veteran should be able to work a job provided it entailed very light physical activity, so is more sedentary in nature, that examiner did not take into account the Veteran's service-connected PTSD. Notably, the August 2008 and April 2009 VA psychologists concluded the Veteran's PTSD would interfere with virtually any type of employment, citing to symptoms such as mood disturbances, sleep impairment, hypervigilence, limited motivation, and limited interest. Also, the April 2009 examiner pointed out the Veteran would not present well to a prospective employer given his difficulty concentrating and articulating himself. The Board finds these medical opinions supportive of the claim to have a lot of probative weight, certainly as much as those unfavorable to the claim. The Board also finds the March 2010 opinion by the Veteran's primary care physician to have significant probative value. The Board is cognizant that both the Federal Circuit Court and Veterans Court (CAVC) have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). However, the duration and depth of a physician's treatment relationship with a Veteran is nonetheless a factor to be considered where medical opinions are in conflict. In addition to the history of treating the Veteran, the primary care physician's March 2010 opinion that the Veteran is precluded from obtaining and maintaining a job considers the aggregate impact of his service-connected disabilities, particularly his PTSD, amputation of his left leg below his knee, residuals of multiple fragment wounds, and neuropathy of the median nerve of his left arm. In summary then, the Board finds that, overall, the medical and lay evidence shows that either the Veteran's PTSD standing alone, or the aggregate symptoms associated with his service-connected disabilities in combination, are of such severity that he is rendered unable to secure or follow a substantially gainful occupation in any meaningful capacity. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Thus, with resolution of all reasonable doubt in his favor, he is entitled to a TDIU. 38 C.F.R. § 4.3. ORDER The claim for a TDIU is granted, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs