Citation Nr: 1301784	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  08-06 600A	)	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:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran had active service from November 2001 to April 2005. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for a left knee disability and assigned a 10 percent disability rating effective May 1, 2005. The RO also granted service connection for lumbosacral spine disability and assigned a 10 percent rating effective September 10, 2005. 

In April 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is included in the claims folder. 

In November 2010 and February 2012, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. 

In the interim, the Veteran perfected an appeal for an increased rating for PTSD that was granted by the Appeals Management Center (AMC) in July 2012, awarding a 100 percent rating for PTSD effective May 1, 2005. That is a full grant of the increased PTSD rating sought on appeal, and that issue is no longer before the Board.

In a September 2012 decision, the Board denied an initial rating in excess of 10 percent for a femoral condyle osteochondral defect of the left knee, and an initial rating in excess of 10 percent for lumbosacral degenerative disc disease prior to July 15, 2008 and from January 8, 2011. The Board then awarded a 20 percent disability evaluation for lumbosacral degenerative disc disease from July 15, 2008 to January 7, 2011. The Board also remanded the TDIU claim so that the RO/AMC could readjudicate the claim with due considerations to the provisions outlined in Bradley v. Peake, 22 Vet. App. 280 (2008). See 75 Fed. Reg. 11230 (March 10, 2010) ("The logic of Bradley suggests that if a Veteran has a schedular total rating for a particular disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under 114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100-percent disability rating.") Entitlement to a TDIU is the sole issue remaining on appeal before the Board. 

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). 


FINDINGS OF FACT

1. The Veteran is service-connected and in receipt of 100 percent evaluation for PTSD; a 10 percent evaluation for left knee medial femoral condyle otseochondral defect; and a 10 percent evaluation for degenerative disc disease lumbosacral spine effective from September 10, 2005, a 20 percent evaluation from July 15, 2008, and a 10 percent evaluation from January 8, 2011; his combined service connected disability evaluation is 100 percent. 

2. The Veteran has a high school education with additional college level work, and occupational experience as a Veterans counselor and as a movie theater worker. 

3. The overall competent evidence does not show that the Veteran's service-connected left knee medial femoral condyle otseochondral defect and degenerative disc disease of the lumbosacral spine to secure or follow substantially gainful employment. 


CONCLUSION OF LAW

The criteria for the assignment of a TDIU rating have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 

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 a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). 

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

Herein, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2007 that fully addressed the notice elements. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. That same letter notified him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. The Veteran has not demonstrated any error in VCAA notice; therefore the presumption of prejudicial error as to such notice does not arise in this case. Sanders v. Nicholson, supra. The Board concludes that all required notice has been given to the Veteran.

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service and post-service treatment records for the Veteran. During pendency of the claim, the Veteran reported receipt of disability benefits from the Social Security Administration (SSA), and then that SSA award letter and records used in the award determination were procured subsequent to Board remand in February 2012. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992) (concluding VA has a duty to obtain SSA records when it has actual notice that the veteran was receiving SSA benefits); In addition, the Veteran underwent several VA medical examinations between July 2007 to January 2011 to assess the severity of his service-connected disabilities, and to provide opinions as to his employability. The Board notes that most of these VA examinations included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. 

Those examination reports are therefore adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. 

Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Furthermore, as discussed above, the Board finds that there has been substantial compliance with its several remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. 

II. TDIU

Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow 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 age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). 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 law provides that a total disability rating 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2012).

For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. 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. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

At this point regarding the TDIU claim here Regarding the derivative TDIU claim, on June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99 addressing questions of whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot).


But in view of the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which took a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC ), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99.

VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A § 1114 . See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent disability rating).

SMC is payable at the housebound (HB) rate where the Veteran has a single 
service-connected disability rated as 100-percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s) ; 38 C.F.R. § 3.350(i) .

Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010)..


III. Background

The Veteran contends that he is unable to work due to his service-connected disabilities and, therefore, he should be entitled to a TDIU.

The Veteran's service-connected disabilities include a 100 percent evaluation for PTSD; a 10 percent evaluation for medial femoral condyle otseochondral defect; and a 10 percent evaluation for degenerative disc disease lumbosacral spine effective from September 10, 2005, a 20 percent evaluation from July 15, 2008, and a 10 percent evaluation from January 8, 2011. His combined service connected disability evaluation is 100 percent. 

VA psychiatric records from May 2007 reveal the Veteran's complaints of problems with his mood, irritability with people, and flashbacks of combat experiences. The diagnosis was PTSD, and his global assessment of functioning (GAF) score was 55. 

In June 2007, the Veteran submitted his claim for TDIU (VA Form 21-8940). He reported a high-school education and one year of college, and indicated that he had been enrolled at another college since August 2006. He reported employment at a Veterans Center from August 2005 to February 2006, and at a (movie) theater from March to June 2006. He also reported attempts at jobs in janitorial, college campus safety, and security fields from September 2006 through May 2007. 

At a July 2007 VA mental health evaluation the Veteran reported that he had been back from Iraq for two years, and since then he had worked at a Vet Center. He reported problems with his mood, impatience with people, and difficulty concentrating. He stated that he had quit school due to problems concentrating and his inability to be around people. He was easily irritated and had anxiety. He stayed in his apartment by himself. The Veteran described his sleep as sporadic. He reported daily flashbacks, hypervigilence, and being startled easily. Reportedly he was unable to hold friends. Medication had been prescribed for his mood and problems sleeping. The diagnoses were: PTSD and generalized anxiety disorder. The GAF score was 40. 

At an October 2007 VA PTSD examination, PTSD was diagnosed. The Veteran's GAF score was 55. It was stated that there had been no major change in frequency, severity, or duration of the Veteran's symptoms since his last examination. The examiner opined that with a reasonable degree of medical and psychiatric certainty that the Veteran was able to obtain and hold gainful employment, and there was no indication otherwise, although the Veteran was currently not working. He was fully employable at a job compatible with his education. 

At an October 2007 VA medical examination of the joints the Veteran complained of left knee and low back symptoms, including pain. Range of motions studies showed some limitation of the left and the low back without neurological deficits. The examiner opined that the Veteran was still employable given his orthopedic issues. 

At a January 2008 VA psychiatric evaluation the Veteran's mood was described as good and he was mildly anxious. There was stress with school. His GAF score was 45. In April 2008 PTSD was the diagnosis and his GAF score was 45. 

In July 2008 a psychiatric examination for purposes of SSA benefits was conducted. The Veteran reported problems with his sleep, mood swings, and difficulty being in groups. His mood was described as angry. The GAF was 45. The diagnoses were: PTSD and mood disorder, bipolar type. A contemporaneous physical examination for SSA benefits purposes revealed the Veteran's complaints of back and knee pain. The diagnoses were: Arthralgia, lumbar, possible arthritis; and possible knees arthritis.

In July 2008 the SSA denied the Veteran benefits determining that his conditions, PTSD, back and knee pain disorders did not keep him from working. 

VA psychiatric entries from July through October 2008 reported improvement of the Veteran's mood with medication, but later he was not compliant with medication. He attended classes, but reportedly he remained socially isolative, only socializing with a few Iraqi (war) buddies by phone. PTSD symptoms and poor concentration in school were reported. In August 2008 the Veteran reported problems interacting with people and resultant termination of two jobs. His GAF was 45.

At an October 2009 VA PTSD examination the Veteran's GAF score was 54. It was stated that the Veteran was unemployed, and that he did not plan to return to work. He had PTSD symptoms. The mental status examination showed that the Veteran presented neat and clean. He was depressed. The examiner stated that the Veteran's PTSD was moderate to severe at times evidenced by the impact on his social functioning and employment functioning. There were no significant increases or changes in his symptoms since his last evaluation. It was reported that even with medication and outpatient therapy his symptoms persisted, even if to stay the same.

In February 2010, SSA records show that in February 2009 the Veteran was awarded benefits dating February 2006 with a primary diagnosis of anxiety related disorders and a secondary diagnosis of disorders of the back discogenic, degenerative. It was noted that the decision reopened and revised a determination made in July 2008. It was mentioned that a prior determination was based on partial information, and that several treating sources had indicated that the Veteran had a severe psychiatric condition imposing considerable functional limitations. 

In December 2010, a VA compensation examination for PTSD and individual unemployability was performed. It was reported that the Veteran lived alone in an apartment. He had never married, and he did not have kids. He had not been in a relationship since service. The Veteran reported that he did not socialize with many people, but he had one friend from high school that lived a block away. He called his mother and father, and got along with them but their relationship had changed since his return from Iraq. He did not like to parented by them. The Veteran reported that he was taking classes at a college, and that he did not work well with groups, and he argued if others disagreed with him. 

The mental status examination revealed that the Veteran presented neatly groomed. His affect was normal and his mood was described as good. His thought processes were goal directed, and his thought content was within normal limits. There was evidence of obsessive compulsive behaviors. He had a mild sense of entitlement and narcissism. The Veteran reported nightmares, hypervigilence. Regarding employment, the Veteran reported working at a Vet Center from August 2005 to February 2006. He stated that he had quit working because he did not like being in a small space, he obsessed and ruminated when angry, and he had conflicts with workers. The Veteran reported that his jobs ended if he had to deal with people. He had had not had full time employment since he worked at the Vet Center. The Veteran had been attending school fulltime, and he continued to go because he did not want to lose his GI bill. He stated that he did not have a specific plan for work or school in the future. GAF scores were 52 and 54. The diagnoses were: Chronic PTSD; obsessive compulsive personality traits, rule out OBCD (obsessive compulsive disorder). 

The examiner reported that the Veteran's PTSD symptoms caused moderate impairment in his social and work functioning. The Veteran had not maintained consistent employment since he worked at the Vet Center due to combined factors including enrollment in school, his PTSD symptoms, and his obsessive compulsive personality traits. His symptoms had not changed in terms of severity, frequency, or degree of impairment. Regarding individual unemployability it was reported that the Veteran's PTSD symptoms did not preclude him from employment, and that he would do best in an environment with minimal distractions where he could work independently. His personality traits caused moderate to severe impairment in his work functioning. The examiner stated that this was the most significant impairment in his work functioning but was not related to his PTSD. It was related to his personality traits. 

In a January 2011 VA medical examination of the joints, the Veteran reported stiffness in his left knee with occasional pain, and pain in the small of his back with occasional radiation of pain into his right buttock. The examination of the lumbar spine was normal. The left knee revealed mild patella discomfort with compression, and some limitation of motion of flexion with pain. The diagnoses were: Left knee chondromalacia; X-rays show a bone density over soft tissue medical to distal femur; normal lumbar X-ray. The examiner commented that the Veteran's symptoms appeared stable, and he did not feel that his orthopedic issues would be a reason for long term unemployability, and he could perform desk work. 

In a December 2010 statement from a social worker at a Vet Center, it was reported that the Veteran had been a patient at the facility since April 2005 when he moved to another state where he had moved to live with a friend but he had returned. It was reported that the Veteran had a chronic decision process and that his thought processes were grossly impaired. It was reported that the Veteran had had problems with relationships in the past. 

In an April 2011 statement, a VA physician reported that the Veterans claims folder had not been available at the previous January 2011 VA examination of the joints. It was stated that a review of the claims folder revealed no change in the diagnosis and an addendum was not necessary. 

III. Analysis

The Veteran has a 100 percent disability evaluation and he meets the threshold schedular criteria for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(a). That is, without having to resort to the special extra-schedular provisions of 38 C.F.R. § 4.16(b). 

However, while he meets the threshold criteria for consideration of TDIU, the Board finds that the most probative medical and other evidence of record does not establish the Veteran's impairment by virtue of his service-connected disabilities is sufficient to render it impossible for him to follow a substantially gainful occupation. See 38 C.F.R. § 3.340(a)(1). 

For the Veteran to be entitled to a TDIU, the most probative medical and other evidence must establish that his service-connected disabilities alone, render him incapable of obtaining and maintaining substantially gainful employment that is consistent with his level of education, prior training, and work experience, etc. The record shows that the Veteran has a high school education and he has additional college level work. Subsequent to his military service in Iraq, he has been employed as a Veteran's counselor as well as a theater worker. 

Preliminarily, with respect to the Veteran's service connected left knee and lumbar spine disorders, the record shows his back and knee pain complaints. There are clinical findings that reveal some limitation of motion of the left knee and back. However, the medical evidence does not show that the Veteran's back and knee disorders preclude his employability. In fact, VA findings in the record specifically suggest that he indeed is employable given his back and knee disorders. 

The record also shows that the Veteran's has ongoing but apparently stable PTSD symptoms certainly interfering with his social adaptability, but also impacting his functioning for employability purposes. The Board notes that the Veteran's PTSD has been clinically described as moderate at most. Also, since mid-2007, GAF scores have ranged from 40 to 55, most recently 52 and 54. There have been some lower scores as indicated, but overall, the GAF scores the Veteran has received in the course of his evaluation and treatment by VA are not necessarily suggestive or indicative of unemployability. According to the DSM-IV, GAF scores in the range of 51 to 60 suggest he has relatively 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). This is somewhat inconsistent with a finding of unemployability, although the GAF score, alone, is not dispositive of this determination but, instead, just one of several factors deserving of consideration. 

At this point is must also be mentioned that from 2007 to 2011, VA examiners have consistently indicated that the Veteran is able to obtain and hold gainful employment, considering his PTSD. Most recently it was opined by a VA examiner that the Veteran's PTSD symptoms did not preclude him from employment, and that his most significant work functioning impairment was due to personality traits described as moderate to severe, that were not related to his PTSD. It was suggested that he could work in an environment with minimal distractions, independently. Hence, all of the VA examiners asked to comment on this determinative issue, even those that most recently examined the Veteran, have agreed that he is able to obtain and maintain substantially gainful. These examiners, however, have not described a level of accommodation that would warrant concluding the employment would only be marginal and of the type contemplated by 38 C.F.R. § 4.18. The Veteran has not offered any evidence tending to refute these VA examiner's unfavorable opinions, which, again, all come to the same conclusion that he is still employable.

The SSA's determination regarding the Veteran's level of disability is relevant to his VA claim, including especially for a TDIU. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997); and Lind v. Principi, 3 Vet. App. 493, 494 (1992). But, ultimately, VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). And this especially is true here, given that the Veteran was awarded SSA disability benefits in part due to psychiatric disablement referenced as moderate to severe, that apparently would include his nonservice-connected personality traits as recently reported by VA. Again, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.

The Veteran is unemployed and attends college, and he has reported that he has attempted to obtain employment in the past. It is worth mentioning that the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Id. In fact, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Further, it was reported that the Veteran stated that he attended school fulltime because he did not want to lose the GI bill. Again, as indicated by VA examiners, there is no indication that the Veteran is precluded or restricted from all forms of employment that may be considered substantially gainful. 

The Board acknowledges the lay statements and testimony by the Veteran that he believes he is unable to work due to his PTSD, knee, and back disabilities. However, he is not competent to specify the degree of severity of his service-connected disabilities as this would constitute a medical conclusion based upon a medical and/or psychiatric analysis of his PTSD, back, and knee symptomatology which he is not competent to make. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (a lay person is not competent to render an opinion regarding the diagnosis or etiology of a disease or injury; however, a lay witness can provide and "eye-witness" account of the visible symptoms). In addition, the determination of whether the Veteran's service connected disabilities render him unable to obtain or retain substantially gainful employment is a legal determination to be made by the adjudicator of the claim. 

Therefore, the Board cannot grant this TDIU claim because the preponderance of the evidence is unfavorable, meaning the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. There simply is insufficient evidence favorable to the claim to conclude the Veteran is incapable of obtaining and maintaining substantially gainful employment if only his service-connected disabilities are considered. See Fluharty v. Derwinski, 2 Vet. App. 409, 412- 13 (1992); Beaty v. Brown, 6 Vet. App. 532, 537 (1994).


the Board notes that claims for higher evaluations include a claim for a TDIU when the appellant claims he is unable to work due to a service connected disability. Rice v. Shinseki, 22 Vet. App. 447   (2009) (per curiam). As noted above, in December 2008, the Veteran filed such a claim.

When the Veteran's schedular rating is less than total (for a single disability or combination of disabilities), a total rating may nonetheless be assigned provided that 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. In addition, the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a) . 

In this case, the Veteran already has a 100 percent schedular evaluation for the following disorders: chronic lymphocytic leukemia, evaluated as 100 percent disabling; PTSD with major depressive disorder, evaluated as 50 percent disabling; the residuals of an injury to the fingers of the right hand, evaluated as noncompensable; and surgical scars on the right forearm, evaluated as noncompensable. 

In June 1999, VA's General Counsel  held that receipt of a 100 percent scheduler rating for a service-connected disability rendered moot any pending claim for a TDIU. Vet. Aff. Op. Gen. Couns. Prec. 6-99 (Consideration of Claim of Total Disability Based on Individual Unemployability Where Schedular Total-Disability Rating in Effect (June 7, 1999)). However, the United States Court of Appeals for Veteran's Claims (Court) has since held that a claim for a TDIU may proceed where the TDIU is potentially available for had been granted for a disability other than the disability for which a 100 percent rating is in effect. Bradley v. Peake, 22 Vet. App. 280   (2008). In so holding, the Court recognized that an award of a TDIU, separate from the 100 percent schedular evaluation, could form the basis for an award of additional compensation, that is special monthly compensation. 38 U.S.C.A. § 1114(s)  (West 2002 and Supp. 2011); 38 C.F.R. § 3.350(i)  (2011). In light of the Court's holding in Bradley, the VA General Counsel  Opinion 6-99 was withdrawn. 

The foregoing discussion notwithstanding, the Bradley case is distinguishable from the instant case. In Bradley, the Court found that a TDIU was warranted in addition to a scheduler 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. In this case, while the Veteran does have a 100 percent schedular rating for chronic lymphocytic leukemia, his other service-connected disabilities, PTSD, the residuals of an injury to the fingers of the right hand, and surgical scars on the right forearm, alone or in aggregate do not meet the rating criteria for the assignment of a TDIU. 38 C.F.R. § 4.16(a) . Moreover, the preponderance of the evidence is against a finding that those disabilities, alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. As such, the claim for a TDIU is moot and requires no further action.

Finally, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected PTSD with major depressive disorder. 

Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60   (1993). An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)  (2009), Fanning v. Brown, 4 Vet. App. 225, 229   (1993).

There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115   (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.

In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned rating. See Brannon v. West, 12 Vet. App. 32   (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). Moreover, the Veteran and his representative have not identified, and the Board has not found, any factors which may be considered to be exceptional or unusual with respect to the service-connected PTSD with major depressive disorder. In this regard, the record does not show that the Veteran has required frequent hospitalizations for those disorders. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. In short, the evidence does not support the proposition that the Veteran's PTSD with depressive symptoms presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1) .







ORDER

A TDIU is denied.


____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs