Citation Nr: 1304338 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-17 895 ) 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 Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from July 1966 to February 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified in September 2012 before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record. FINDINGS OF FACT The Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim for a TDIU, letters dated in January 2006 and May 2006 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination in conjunction with his claim in May 2012, the report of which has been associated with the claims file. The examiner provided a well-reasoned rationale for the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the criteria for a TDIU. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history, employment history, and his symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. II. Entitlement to a TDIU A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. 38 C.F.R. § 4.16. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (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 non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In this case, the Veteran contends that he is unemployable as a result of his service-connected disabilities. For the reasons described below, the Board concludes that a TDIU is not warranted. First, the Board notes that the Veteran meets the schedular requirement for a TDIU because he has at least one disability rated as 40 percent disabling and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connected for the following disabilities: posttraumatic stress disorder (PTSD), rated as 70 percent disabling, and tinnitus, rated as 10 percent disabling. The Veteran's combined evaluation for compensation is 70 percent. The Board also notes that the Veteran is currently unemployed. The Veteran was previously been employed as a pharmacist. He testified at the September 2012 hearing that he last worked in 2004 and that he was fired from several jobs. His representative said that the Veteran cannot work as a pharmacist because he is incapable of the requisite level of concentration. There is not any evidence of record that the Veteran's tinnitus interferes with employment, and the Veteran and his representative have not so argued. At a February 2004 audiological examination the Veteran was diagnosed with mild intermittent tinnitus in both ears. It occurred two times a week. At March 2005 VA mental health treatment the Veteran said that he continued having PTSD symptoms and that medication decreased the severity. He reported working "as needed" as a pharmacist but that this was not very often. Thought content was clear and goal directed and there was no suicidal or homicidal ideation, plan or intent. Cognition, judgment and insight were grossly intact. Mood was depressed and there was psychomotor agitation. VA treatment notes from December 2005 through July 2006 indicate that the Veteran had severe PTSD with continued symptoms causing severe impairment in all areas of life including occupational, social, emotional and cognitive. The Veteran had an examination arranged through VA QTC Services in February 2006. He reported difficulty sleeping, for which he sometimes drank alcohol. The Veteran said that he could not work and that he had no energy. He said that he could not function in a work environment because of symptoms, stress and drug therapy. The Veteran reported getting along poorly with supervisors and coworkers in his work as a pharmacist. The temporary jobs he held required driving a lot, which led to his quitting, although he also said that he gave the work up because he could not deal with it from a mental standpoint. On examination the Veteran was alert and oriented to time, place, person and purpose. Appearance, hygiene, and behavior were appropriate. The Veteran was restless and was easily agitated, and mood was depressed. The depression was near-continuous and affected his ability to function independently. There was also unprovoked irritability. Communication and concentration were normal. The Veteran did not have any difficulty understanding complex commands. There was a history of panic attacks, he had suspiciousness but no delusions, and there was a history of obsessional rituals that did not interfere with daily activity. The Veteran had a history of visual hallucinations and occasionally saw helicopters. The examiner noted that the Veteran had behavioral, cognitive, social and affective symptoms attributed to PTSD. Mood was labile, he was socially withdrawn, he had a difficult time with memory and concentration, and he was easily agitated. The examiner noted that the PTSD caused impairment in occupational functioning but did not provide an opinion regarding whether the Veteran was employable. October 2006 VA treatment notes state that the Veteran had been unable to work for over a year due to the severity of the PTSD symptoms. Subsequent treatment notes continued to note severe impairment from PTSD symptoms in all areas of life, including occupational, social, emotional and cognitive. At June 2007 treatment, it was noted that the Veteran continued to experience nightmares, flashbacks, intrusive thoughts about the trauma, insomnia, and reactivity. A treating physician assistant and nurse practitioner wrote in treatment notes from June 2008 to October 2010 that in her opinion the Veteran was totally and permanently disabled due to the severity of the PTSD symptoms. The Veteran had a VA examination in May 2012 at which he reported having been employed as a pharmacist until 2004. He said that he enjoyed work but that he was no longer able to do it for physical reasons. The examiner noted that while April 2012 treatment notes said that the Veteran had hyperarousal that limited his interaction with people, the Veteran interacted affably with people at the examination. On mental status examination, thought processes were logical and goal directed and there was no evidence of hallucinations or delusions. Mood was euthymic and affect was mood congruent. Current homicidal and suicidal ideation, plan and intent were denied. The Veteran was oriented to person, place, date and situation. Judgment and insight appeared good. The examiner did not feel that there was any reason from a psychiatric standpoint that would preclude employment. The Veteran was volunteering on a weekly basis and said that he was enjoying it. The examiner felt that some level of employment would be beneficial from a psychiatric standpoint because it would provide needed structure and support. It was noted that the Veteran maintained stable social interpersonal relationships. The Veteran testified at the September 2012 hearing that the medications he takes make him groggy and that therefore his wife drives him places. In the past he had been suicidal and homicidal, and he had nightmares related to Vietnam. The Veteran's wife testified that he has a short temper and displays little patience. Significant probative value cannot be given to the opinion of the treating provider who wrote in treatment notes from June 2008 to October 2010 that the Veteran was totally and permanently disabled due to the severity of the PTSD symptoms because no rationale was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning" and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."); see also See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The other competent opinion of record regarding whether the Veteran is unemployable is from the May 2012 VA examiner, who felt there was not any reason from a psychiatric standpoint that would preclude employment. The opinion can be given probative value because the examiner was informed of the pertinent facts, fully articulated the opinion, and supported it with a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 303-04; see also Stefl, 21 Vet. App. at 124. There is no other medical evidence regarding the effect that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. There are additional statements from the treatment records and from the February 2006 examiner that the PTSD symptoms would affect the Veteran's ability to perform occupational tasks. These records do not, however, contain additional opinions that PTSD would preclude his securing or following a substantially gainful occupation. The Veteran has provided statements regarding his service-connected disabilities and the effect they have on his employability, including the statements from the September 2012 hearing that he can no longer work as a pharmacist because of PTSD symptoms and a statement on his June 2008 VA Form 9 that he was terminated from his job due to PTSD. He also said at the May 2012 examination that he could no longer work for physical reasons. The Veteran is competent to state what effects he believes his disabilities have on his employment. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran's statements that he does not believe he is able to work as a pharmacist are credible. However, it is noted that he has not been entirely consistent about whether he is unable to do so due to his PTSD symptoms or because of non-service connected physical disabilities. Even giving the benefit of doubt to the Veteran that he has consistently maintained being unable to work as a pharmacist due to PTSD, his statements are outweighed by that of the VA examiner, who felt that there was not any reason from a psychiatric standpoint that would preclude employment. As described above, the VA examiner specifically noted that the Veteran's thought processes were logical and goal directed and there was no evidence of hallucinations or delusions. The Veteran was oriented to person, place, date and situation, judgment and insight appeared good, and he was able to interact with others in an appropriate manner. The Board also notes that in order for a TDIU to be granted, the service-connected disabilities must render the Veteran unable to secure or follow any substantial gainful occupation consistent with his history, education and training, regardless of whether he can perform his former work as a pharmacist. See 38 C.F.R. § 4.16. In summary, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board concludes that the criteria for a TDIU have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. ORDER A total disability rating based on individual unemployability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs