Citation Nr: 1301484 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-37 971 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to June 2001 and from June 2004 to April 2005. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's claim of entitlement to a TDIU. She perfected a timely appeal to that denial. On March 13, 2012, the Veteran appeared and offered testimony at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing has been prepared and associated with the claims folder. At the hearing, the Veteran submitted additional evidence along with a waiver of original jurisdiction. 38 C.F.R. § 20.1304 (2012). In May 2012, the Board remanded the case to the RO for further development of the TDIU issue. Following the requested development, a supplemental statement of the case (SSOC) was issued in November 2012. Therefore, the Board finds that there has been substantial compliance with its remand directives; thus, the Board may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. The Veteran's only service-connected disability is major depressive disorder, rated as 70 percent disabling. 2. The service-connected disability rating for major depressive disorder meets the schedular threshold requirements for consideration of the assignment of a total disability rating based on individual unemployability. 3. The competent and probative evidence of record preponderates against a finding that the Veteran's service-connected disability is of such nature and severity as to preclude her from securing or following substantially gainful employment consistent with her education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU due to a service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in May 2008 from the RO to the Veteran, which was issued prior to the RO determination in July 2008. An additional letter was issued in June 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this claim. The Board has also reviewed the Veteran's Virtual VA claims file, an electronic file. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notice. The Veteran has been afforded a VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination was conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the issue addressed in this decision. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran's claim for TDIU benefits was received in May 2008. In a statement dated in August 2008, the Veteran indicated that she had to leave her last job due to anxiety and panic attacks caused by her psychiatric disorder. The Veteran related that she is unable to deal with the fast pace environment of a job and the stress of dealing with her three children. The Veteran maintained that her life is a struggle as a result of her psychiatric disorder. A VA psychiatric examination was conducted in July 2010, at which time the Veteran reported current symptoms of sadness, anhedonia, sluggishness, fatigue and insomnia; she described the severity of those symptoms as severe, and she noted that they were constant and ongoing. The Veteran also reported that the symptoms affect her total daily functioning, which result in her not being able to hold a job, although she stated that she is okay financially. The Veteran noted that she had difficulty leaving the house and stays in bed most of the day; she is cut off from her friends and family. She did not have a history of violent behavior, and she did not indicate a history of suicide attempts. On mental status examination, orientation was within normal limits. Appearance and hygiene were appropriate. Behavior was appropriate. She maintained good eye contact during the examination. Affect and mood showed depressed mood; she appeared very depressed and was tearful throughout the examination. Communication was within normal limits. Speech was within normal limits. Concentration was within normal limits. No panic attacks were noted. No hallucinations or delusions were reported or noted during the examination. No obsessive or compulsive behavior was noted. Thought processes were appropriate. No suicidal or homicidal ideations were noted. Judgment was not impaired. Memory was within normal limits. The diagnosis was major depressive disorder; the examiner assigned a global assessment of functioning (GAF) score of 50. The examiner stated that the Veteran was suffering from severe depressive symptomatology; in her current state, she is unable to function effectively in an occupational setting. The examiner stated that the Veteran was capable of managing benefit payments in her own best interest. He stated, however, that she had difficulty establishing and maintaining effective work/school and social relationships because she is not motivated to spend time with others. At her personal hearing in March 2012, the Veteran noted that she was currently unemployed. The Veteran reported that she was working as a cashier in a liquor store for 3 weeks; however, she had to quit that job because it became overwhelming for her. The Veteran maintained that she is unable to work due to her depressive disorder; she stated that getting the job is not the problem, it's being able to deal with the stresses of the job. The Veteran testified that she has also had experience as a security guard; she worked in that capacity for 7 to 8 months prior to the cashier job. The Veteran also reported that she had one year of college; she stated that she tried to go to school to become a pharmacy technician, but she dropped out of that program. The Veteran indicated that she is now a stay-at-home mom. She was currently receiving treatment at the VA for symptoms of her psychiatric disorder. Submitted at the hearing was an application for TDIU benefits (VA Form 21-8940), which reflected that the Veteran had completed high school and one year of college, but no other education or training. The application noted that the Veteran had had occupational experience as a cashier and security guard; she reported that she became too disabled to work in January 2008. Also submitted at the hearing were VA progress notes dated from June 2005 through March 2012. These records show that the Veteran received ongoing clinical attention and treatment for symptoms of her psychiatric disorder, major depressive disorder. These records show that the Veteran suffered from depressed mood, anxiety, nervousness, irritability, feelings of hopelessness and helplessness, diminished ability to concentrate, and decreased interest in pleasurable activities. Received in June 2012 were records from the Social Security Administration (SSA). Among those records was an SSA decision, dated in September 2010, which denied the Veteran's claim for disability benefits. Also included in the records was the report of a private mental status evaluation, conducted in August 2010, which reflects a diagnosis of bipolar disorder, depressed, severe, and anxiety disorder; the examiner assigned a GAF score of 50. She reported stable functioning at her current level over the past year. The examiner noted that the Veteran was competent to manage her benefits, and she understood the purpose of the procedures. Also received as part of the Social Security disability claim were VA progress notes dated from March 2008 through April 2010, which show that the Veteran received ongoing clinical attention and treatment for symptoms of her psychiatric disorder, major depressive disorder. In November 2009, the Veteran was seen for medication management and counseling; at that time, the Veteran reported that she was doing well, and her mood was good most of the time. She was excited as she will be joining a course to help her become a director of a child facility. She reported that her energy was improving and sleep and appetite were stable. She was no longer experiencing sad thoughts, and no suicidal ideations. The assessment was major depressive disorder, doing well. Documentation on file reflects that in November 2009, it was determined that the Veteran was eligible for VA Chapter 31 vocational rehabilitation services, as she was found to have a serious employment handicap due to disabilities which significantly impacted her vocational opportunities. A narrative counseling report noted that the Vocational Rehabilitation counselor determined that the effects of the Veteran's service-connected disorder substantially contribute to impairment to employability by impeding her ability to prepare for, obtain or retain suitable employment. The Veteran was noted to have not overcome her impairments to employability that results in substantial part from her service-connected disability. The Veteran was found to have an employment handicap. It was noted that, during the meeting, the Veteran explained that she does what it takes to obtain a job; however, she does not follow through with keeping the job. The Veteran stated that her preference is to quit the job before being terminated from a job. She further reported that she was never in danger of losing a job; she just chose to quit before it ever happened. It was further noted that the Veteran had a pharmacy trainee license that would expire in February 2010; she did not complete the training requirements because it was not something that she really wanted to do. While it was determined that the Veteran had a serious employment handicap, the counselor stated that the feasibility of rather or not she would seem to benefit from employment services through education/training in order to become suitably employed could not be determined at this time. In January 2010, the Veteran was notified that her vocational rehabilitation program had been interrupted and anticipated to be discontinued, because she did not attend scheduled follow up appointments to proceed with her plan as required. The Veteran was afforded a VA examination in August 2012. The Veteran reported that, since her last evaluation, she has continued to take care of her children. She also reported that she went to school for a period of time. The Veteran indicated that she was divorced in 2007. The Veteran related that she enjoyed spending time with her children; she noted that she has a good relationship with her sister who is currently living with her. The Veteran reported that she worked for approximately 3 weeks at a grocery store in April 2011; she subsequently studied cosmetology from October 2011 to February 2012. She is now looking for work in a variety of industries, including security or clerical field. The Veteran described her current mood as "fair." She has reported feeling down lately related to recent stressors, but overall it appeared that her mood has been stable. The Veteran did not report a decline in interest in activities. It was noted that she is somewhat socially isolated, preferring to spend time mainly with family and her children. On mental status examination, it was observed that the Veteran was appropriately groomed and casually dressed. She appeared her stated age. Gait was unremarkable, and ambulation was independent. Manner was cooperative. Eye contact was appropriate. Speech was unremarkable. Thought processes were logical and goal directed, and there was no evidence of hallucinations or delusions during the interview. Mood was dysphoric, but affect was appropriate variable. She denied any homicidal and suicidal ideations, plan, or intent. The Veteran was oriented to person, place, date and situation. Immediate retention was good. Judgment and insight appeared good. The diagnosis was major depressive disorder; the examiner assigned a GAF score of 62. The examiner stated that the Veteran was given a GAF score of 62 based on mild symptoms that cause limited functional impairment. The Veteran generally functions satisfactorily with regard to routine behavior and self care; family role functioning is not impaired. With regard to occupational functioning, the Veteran was not currently employed; however, the Veteran is employable from a psychiatric standpoint. It is anticipated that employment would be beneficial as it would provide needed structure. III. Legal analysis. 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 where the veteran has a single service-connected disability that is rated as 60 percent disabling or more; or when there are two or more disabilities, at least one disability is rated at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is 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, under 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 38 C.F.R. § 4.16(a). In this case, the Veteran meets the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU. She is service-connected for a single disability, major depressive disorder, rated as 70 percent disabling. As a result, the schedular requirements for the assignment of a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In order to establish entitlement to TDIU benefits, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). The issue is whether the Veteran's service-connected disability precludes her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high 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 can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations provide that in exceptional cases where the schedular evaluations are found to be inadequate, an extra- schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). The Veteran maintains that her service-connected major depressive disorder renders her totally unemployable, and during the course of this appeal she has met the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). The Board acknowledges the Veteran's assertions and her significant degree of functional impairment due to her service-connected psychiatric disability. However, the Board notes that the evidence in this type of claim must show that she is unable to pursue a substantially gainful occupation due solely to her service-connected disability. The mere fact that a veteran is unemployed or has difficulty obtaining a job in the available employment marketplace is not enough. As the U.S. Court of Appeals for Veterans Claims has emphasized, a high disability rating in itself is recognition that the impairment makes it difficult to obtain or retain employment, but the ultimate question is whether the Veteran is individually capable of performing the physical and mental acts required by employment (without consideration of his advanced age or of the effects of non-service-connected disabilities), rather than whether she is having difficulty finding employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In her claim for TDIU (on VA Form 21-8940), dated in March 2012, the Veteran indicated that she had completed one year of college, with no other education or training. She reported that working as a security guard for several months from 2000 to 2008, and she briefly worked as a cashier for one month from March 2011 to April 2011. The record indicates that the Veteran was found eligible for Vocational Rehabilitation in November 2009; however, in January 2010, a Rehabilitation Counselor informed the Veteran that her program had been interrupted due to her failure to attend the scheduled follow up appointments. A review of the evidentiary record in this case shows that the Veteran's last full time employment was her brief employment as a cashier from March to April 2011. She has reported on several occasions that she is unable to work due to this service-connected major depressive disorder. In support of her claim was an opinion from a VA examiner in July 2010, who indicated that the Veteran's current psychiatric impairment caused occupational and social impairment with deficiencies in most areas such as work, school family relations, judgment, thinking and mood. The examiner further noted that the Veteran would have difficulty establishing and maintaining effective work or should relationships because she was not motivated to spend time with others. While social and industrial impairment was evident, it was not termed total. The Veteran attended school and worked from March 2011 to April 2011. During the August 2012 VA examination, the Veteran reported that she studied cosmetology from October 2011 to February 2012. Moreover, following the August 2012 VA examination, the examiner stated that the Veteran was employable from a psychiatric standpoint; he noted that employment would be beneficial as it would provide needed structure. Likewise, the assigned GAF scores have reflected that she would have some occupational impairment due to her service-connected major depressive disorder, but significantly less than total. Clearly, the service-connected major depressive disorder is productive of a great degree of disability, as indicated by the current 70 percent rating. Nonetheless, the weight of the evidence reflects that her service-connected major depressive disorder does not, by itself, preclude her from securing or following substantially gainful employment. As noted above, in November 2009, the Veteran was found to have a serious employment handicap and was found to be eligible for vocational rehabilitation training. The counselor specifically noted that the Veteran's service-connected psychiatric disorder had an identifiable, measurable, or observable causative effect on her vocational impairment. The records reflect that her vocational rehabilitation program was later discontinued because the Veteran did not attend the scheduled follow up appointments. The program was not terminated because further training would be fruitless due to her service-connected disability. While the Board does not minimize the nature and extent of the Veteran's overall psychiatric disability, the evidence of record does not support her claim that her service-connected major depressive disorder is sufficient to produce unemployability. The record clearly indicates that the Veteran's service-connected psychiatric disorder has resulted in some interference with employment, and that she is not well suited for some jobs, particularly those involving a high level of stress. However, to the extent the Veteran is limited by her service-connected psychiatric disability, such limitation is contemplated in, and is being adequately compensated by, the 70 percent disability rating currently assigned. Accordingly, a TDIU is not warranted. 38 C.F.R. § 4.16(b). ORDER Entitlement to a TDIU due to service-connected disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs