Citation Nr: 1302804 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-37 310A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing is of record and has been reviewed. FINDINGS OF FACT 1. The Veteran is service-connected for posttraumatic stress disorder (PSTD) (70 percent); bilateral tinnitus (10 percent), and bilateral hearing loss (noncompensable), for a combined disability rating of 70 percent since September 30, 2008. 2. The most probative medical and other evidence of record indicates his PTSD precludes him from obtaining and maintaining employment that would be considered substantially gainful versus just marginal in comparison. CONCLUSION OF LAW The criteria for a TDIU are approximated. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). (CONTINUED ON THE NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 error in either timing or content and, moreover, that the error is unduly prejudicial, meaning outcome determinative of his claim). The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Merits of the Claim 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 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 is currently service-connected for PSTD (70 percent); bilateral tinnitus (10 percent), and bilateral hearing loss (noncompensable), for a combined rating of 70 percent since September 30, 2008. Therefore, as of such date, the schedular criteria for a TDIU have been met. See 38 C.F.R. § 4.16(a). 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). 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. 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. The 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). 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). In September 2008, the Veteran underwent a VA compensation examination to reassess his PTSD. He reported having retired from his work in cable installation. After interviewing and examining the Veteran, the VA psychologist felt that the Veteran had considerable deficiencies in most areas. Specifically, the examiner cited to considerable occupational impairment, impaired thinking, and impaired mood, as well as a limited education, family problems, and judgement. The examiner stated that it is clear that the Veteran's work history had been spotty and difficult, noting that while the Veteran was able to work as an independent contractor doing cable and TV, many jobs were lost due to his anger and irritability. The examiner stated that the Veteran is not totally unable to work, but to work in a competitive environment would be most difficult. On his TDIU application received in November 2008, the Veteran indicated that he last worked full-time and became too disabled to work in 2003. He also reported completing two years of college. He stated that he was unable to work due to his depression, anxiety, insomnia, irritability, anger, impatience, and avoidance. He also indicated that he was able to work as long as he did because of the solitary nature of his trade. He reported that in order to avoid confrontations, he would just leave the work site. According to April 2009 correspondence, the Veteran's licensed clinical social worker indicated that the Veteran is unable to work due to his severe PTSD. He requested that the RO reconsider the Veteran's claim and grant a TDIU. In January 2011, the Veteran underwent a VA general medical examination to determine the impact, if any, that his service-connected disabilities have on his employability. The general examination was normal, but the mental health examiner felt that the Veteran would not be a good candidate for securing a job or for holding a job for the long-term. That examiner clarified that the Veteran's symptoms of depression and panic disorder without agoraphobia are directly connected to his PTSD. A February 2012 VA examiner stated that the Veteran's PTSD diagnosis alone is not affecting his ability to be employed. During the October 2012 personal hearing, the Veteran explained that he had written three books and published two of them. The first book was a manual for cable TV technicians and marketing, which was actually written 35 years ago, and the second book was a detective novel. He felt that the money he made from those books was nominal, i.e. under $1500 over three years. He believed that the odd jobs and books he published have not amounted to gainful employment. The Veteran testified that his book writing is more of a hobby than an occupation. As there is competent medical evidence both 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). The evidence of record reflects that the Veteran has been a self-employed contractor since his discharge from active service. He states that he became too disabled to work in 2003 on account of his service-connected disabilities. Initially, it is noted that the evidence does not show that the Veteran's service-connected bilateral hearing loss and tinnitus affect his employability. The competent medical opinions of record however address the impact that his PTSD has on his employability. Having reviewed the complete record, the medical and lay evidence demonstrates that the Veteran's PTSD precludes him from engaging in substantially gainful employment versus just marginal employment. The September 2008 VA examiner stated that the Veteran is not totally unable to work, which at first glance, appears to be evidence against the claim. However, in the same examination report, the examiner acknowledged that being employed would be "most difficult" for the Veteran given his PTSD symptoms and cited to his "considerable" occupational impairment. This opinion therefore is in relative equipoise. And while the February 2012 VA examiner determined that the Veteran is not precluded from obtaining a job from a mental health standpoint, she did not provide any supporting rationale. In particular, the Veteran's limited educational background (no more than 2 years of college) and inconsistent occupational history were not addressed and/or reconciled. Those factors must be considered by the Board. Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991) (finding Board statement inadequate where it "merely allude[d] to educational and occupational history" and "attempt[ed] in no way to relate these factors" to the issue of unemployability); cf. 38 C.F.R. § 4.16(b) (2012) ("The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue [of unemployability]." Additionally, the negative February 2012 VA opinion was partly based on the Veteran's report of having written three books, which understandably might lead the examiner to conclude that the Veteran is employable despite his PTSD. Nonetheless, during his October 2012 personal hearing, the Veteran explained that he has always considered his book writing a hobby, as opposed to an actual vocation. Notably, he reported receiving less than $1500 over a three-year period from book sales. In other words, the Veteran's testimony suggests that his book writing results in just marginal versus substantially gainful employment, if his book writing is even considered a form of employment. Concerning his contract work in cable, his work history has been spotty. The medical evidence reflects that his psychiatric symptoms have caused him to walk away from job sites to avoid confrontation with others. As mentioned, examples of marginal employment versus what could be considered substantially gainful employment may include a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration. 38 C.F.R. § 4.16(a). Therefore, any contract work that he may have performed during the appeal period does not appear to have resulted in any form of substantially gainful employment. The remaining medical opinions of record clearly support the Veteran's claim. In this regard, his licensed clinical social worker, in April 2009, affirmatively stated that the Veteran is unable to work due to his "severe" PSTD. A review of the claims file shows that this social worker conducted the Veteran's initial workup through the VA PTSD clinic team back in 2004. See VA treatment notes dated in September 2005, and the September 2008 VA examination report. The duration and depth of the social worker's treatment relationship with the Veteran is a factor to be considered where medical opinions are in conflict. See generally, White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Therefore, the April 2009 opinion provided by the Veteran's treating social worker is highly probative. Likewise, the January 2011 VA opinion that the Veteran would not be a good candidate for securing or holding a long-term job carries significant probative weight. The examiner reviewed the claims file and conducted a full examination and interview of the Veteran. The opinion was fully articulated and contains sound reasoning. The examiner cited to the Veteran's problems with irritability, anger, and relationships, in addition to his severe functional impairment. That examiner also felt that the Veteran's prognosis for improvement was poor. Consequently, the April 2009 and January 2011 medical opinions supportive of the claim carry significant weight, and certainly more than those unfavorable to the claim. Overall, the weight of the medical and lay evidence reflects that the Veteran has been unable to obtain or maintain any substantially gainful employment consistent with his education and occupational experience by reason of service-connected PTSD. Thus, with resolution of all reasonable doubt in his favor, he is entitled to a TDIU. ORDER The claim for a TDIU is granted, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs