Citation Nr: 1307463 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-15 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total rating based upon individual unemployability based upon service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to August 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied a claim for TDIU. The Board remanded the instant claim in August 2010 and April 2011 for further development. FINDINGS OF FACT 1. The Veteran is service-connected for the following: anxiety disorder, NOS (rated as 30 percent disabling), bilateral hearing loss (rated as 30 percent disabling), and bilateral tinnitus (rated as 10 percent disabling); these ratings result in a 60 percent combined evaluation. 2. The Veteran has an eighth grade education and no other training. 3. The Veteran's combined disability rating does not meet the schedular criteria for a TDIU. 4. The Veteran's service-connected disabilities are not of such severity as to preclude him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by way of letters sent to the Veteran in November 2005 and June 2011. The letters fully addressed all notice elements. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With these letters, the RO effectively satisfied the notice requirements with respect to the issue of TDIU on appeal. Under these circumstances, the Board finds that adequate notice was provided to the Veteran. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. The notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records, private treatment records, Social Security disability records, and VA treatment records with the claims file. No outstanding evidence has been identified. The Board is satisfied that there has been substantial compliance with the requirements of the prior remands in this case. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded VA examinations in September 2010, August 2011, and addendum to the August 2011 examination received in October 2011. The Board finds the VA examination reports were thorough and adequate upon which to base a decision with regard to the Veteran's TDIU claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disabilities under the applicable rating criteria. Further, the Veteran was provided an opportunity to set forth his contentions at a Board hearing. He declined the hearing. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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, 16 Vet. App. 183 (2002). TDIU A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26 (2012). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran is service-connected for anxiety disorder NOS (rated as 30 percent disabling), bilateral hearing loss, (rated as 30 percent disabling) and tinnitus (rated as 10 percent disabling). The combined rating is 60 percent. These disabilities do not all stem from a common etiology nor do they all involve a single body system. Therefore, the criteria for a total disability rating on a schedular basis under the provisions of 38 C.F.R. § 4.16(a) are not met. Consequently, the Board must consider is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extraschedular evaluation. 38 C.F.R. § 4.16(b). The Board emphasizes that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. The Board itself cannot assign an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although Bagwell and Floyd only dealt with ratings under § 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under § 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension Service, in addition to Court precedents requiring consideration of § 4.16(b) when the issue is raised in an increased-rating case. See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). That is, since the Board itself cannot assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. In fact, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C & P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the Board."). Where, as in this case, a Veteran fails to meet the applicable percentage standards, an extraschedular rating is for consideration where the Veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. While the regulations do not provide a definition of "substantially gainful employment," VA's Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable 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 a veteran actually works and without regard to a veteran's earned annual income. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In the Veteran's December 2005 Application for Increased Compensation Based On Unemployability (VA Form 21-8940), the Veteran's educational history indicated that he completed the 8th grade and had no other education or training. He worked at a textile mill as a laborer and power plant maintenance helper from 1982 until 1997 when the mill shut down and was no longer in business. The Veteran also had experience operating heavy equipment, including experience operating a bulldozer operator and a front-end loader. He applied for Social Security disability benefits and was found disabled, effective October 1997. He was found disabled due to hearing loss, severe degenerative disc disease, and diabetes. The Veteran underwent a VA psychiatric examination in September 2010. It was noted during this examination that the Veteran had been happily married for 48 years and had one grown daughter with whom he had a good relationship. He attended church with good established relationships. He mowed the church cemetery for gratis. He grew a sizable garden. It was noted that he was not employed, was retired because his employer went out of business at the location where he worked. It was determined that he did not have total occupational and social impairment due to his service-connected anxiety disorder, NOS. The examiner assigned a Global Assessment of Functioning (GAF) score of 65. The examiner stated that the Veteran's service-connected anxiety disorder resulted in transient and mild decreases in work efficiency and inability to perform occupational tasks only during periods of significant stress. The examiner indicated that due to anxiety attacks that developed since his retirement, it was not expected that the Veteran would be employable in the future. The Veteran underwent a VA psychiatric examination in August 2011. It was noted that the Veteran had been formally diagnosed with a psychiatric disability but that the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. It was noted that the Veteran had no significant changes in his family or social life since his most recent examination. He remained married to his spouse of 49 years, had a good relationship with an adult daughter that he talked to or visited every day. He was highly involved in his church community, and he took on various leadership roles and served as a deacon. He reported that he enjoyed his church activities and attended all events sponsored by his congregation. The examiner opined that the Veteran's psychosocial functioning was intact, as evidenced by his positive familial and social relationships. The examiner assigned a GAF score of 68. The examiner stated that in spite of his anxiety disorder, the Veteran maintained successful employment and positive work performance prior to retirement. As such, the examiner opined that the Veteran would "in no way" be classified as unemployable based on his service-connected mental disorder. In August 2011, the Veteran underwent a VA audiological examination. During the examination, the Veteran indicated that his tinnitus had worsened and "drives him crazy" and kept him awake at night. The examiner stated that the Veteran's hearing loss had significant effects on his occupation and the impact was difficulty hearing. In an October 2011 addendum to his August 2011 VA hearing examination, the examiner was asked how the Veteran's hearing loss and tinnitus disabilities would affect physical and sedentary employment. The examiner stated that the Veteran's hearing loss and tinnitus should not be a barrier to a wide range of employment settings. The examiner stated that many individuals with the Veteran's degree of hearing loss, or worse, function well in many occupational settings. This was not to say that his hearing loss and tinnitus would not cause some problems, depending on the vocation. It was noted that he may have trouble working in noisy environments, in environments which required him to use face-to-face communications equipment (such as speakers, intercoms, etc), or in jobs which required a great deal of high pitched sounds (such as monitoring medical equipment or other "beeps and pings"). The examiner stated that his opinion was made in regard to the Veteran's service-connected hearing loss and tinnitus and did not address the difficulties posed by any of his other disabilities. Social Security Administration (SSA) disability determination records were obtained and associated with the claims folder. It was determined that the Veteran was disabled for SSA purposes since 1997. The disability was a result of his severe bilateral hearing loss (service-connected) and degenerative disc diseases and diabetes (non service-connected). Analysis The Board finds it significant that the Veteran stopped working in 1997, when the manufacturing plant at which he was working closed. Thus, the cessation of the Veteran's employment was due to a fact unrelated to the severity of the Veteran's service-connected disabilities. The evidence establishes that the Veteran's service-connected disabilities have not precluded him from forming effective social relationships, as shown by his attendance at church activities and his service as a church deacon. The evidence establishes that the Veteran's service-connected disabilities have not precluded him from performing activities of daily living, or other work-like activities, including grow8ing a garden and mowing the church cemetery. Although the September 2010 VA psychiatric examination indicated that, because of the Veteran's anxiety attacks since his retirement, it was not expected that he would be employable in the future, the examiner assigned a GAF score of 65. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders 32 (4th ed.) (DSM-IV). A GAF score from 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning. Thus, the GAF score of 65 assigned at the 2010 VA examination is defined as appropriate where there are mild symptoms. The examiner's report was not clear as to whether the Veteran's anxiety attacks affected him presently, or whether these attacks were thought to be a hindrance to the Veteran in the future. That statement is not favorable to the Veteran's claim for TDIU, since the report made it clear that the Veteran's anxiety symptoms did not impair his general functioning to more than a mild, or, at most, a moderate degree. The examiner who conducted 2011 VA examination assigned a GAF score of 68, again consistent with mild, or, at most moderate impairment. While important in assessing the level of impairment caused by psychiatric illness, the GAF score is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001). The assigned GAF scores in this case, varying from 65 to 68, are entirely consistent with the other evidence of record regarding the Veteran's capabilities, and, as such, are significant evidence that the Veteran remains able to establish effective relationships and that his service-connected anxiety does not preclude him from engaging in industrial activities appropriate to his general health. The reports of both the Veteran's September 2010 and August 2011 VA psychiatric examinations indicated no more than a moderate degree of disability related to his service-connected anxiety disorder. He remained in a long-term marriage nearing 50 years. He had a stable, intimate relationship with an adult daughter that he talked to and/or visited on a daily basis. He also had an established relationship with his church community. He was noted to be in a leadership position in his church, serving as a deacon. He reported that he had many friends at church and he participated in all of the church activities. Further, his August 2011 VA audiology examination and October 2011 addendum indicated that the Veteran's hearing loss and tinnitus did not adversely prevent him from a wide variety of employment settings. The examiner indicated the few areas where his bilateral hearing loss and tinnitus may affect employment, but the examiner specifically indicated, in pertinent part, that many individuals, with the Veteran's level of hearing loss, or worse, function well in many occupational settings. Although the Veteran was found to be unemployable for SSA purposes, the primary diagnosis listed in the disability determination documents is a back disorder for which service connection is not in effect. Thus, the impairment of the Veteran's ability to work that is due to a back disorder cannot be considered in the determination of entitlement to TDIU. Consideration as been given to his educational background and his work history. Indeed, although the Veteran has service-connected disabilities which limit him from working in certain positions where auditory acuity may be necessary for safety or communication, the medical opinion that the Veteran retains the ability to perform substantially gainful employment in a variety of settings is persuasive evidence against the Veteran's claim. The examiner stated he is able to work in many occupational settings with his level of hearing loss. He is also able to garden, as he works a large garden of his own, and he is able to do yard work, including mowing the cemetery at his church. His other disabilities such as diabetes may limit his occupational pursuits, however, service connection has not been awarded for that disorder and it cannot be considered as to his employability for VA purposes. The Board has considered the Veteran's statements in support of his claim. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not competent, however, to identify a specific level of disability of his anxiety disorder, NOS, hearing loss, and tinnitus, and whether these service-connected disabilities preclude substantially gainful employment as defined for VA purposes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's service connected disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which a determination of entitlement to a TDIU is made. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether his service-connected disabilities alone were of sufficient severity to produce unemployability. Based on the foregoing, the Board finds that the Veteran is not prevented from securing or following substantially gainful employment due to his service-connected anxiety disorder, NOS, bilateral hearing loss, and tinnitus. The evidence establishes that the service-connected anxiety disorder, NOS, bilateral hearing loss, and tinnitus do not result in an impairment of the Veteran's ability to engage in industrial tasks beyond the level reflected by the assigned ratings or more significantly than other Veterans who have similar disability ratings. In this case, the Board directed the agency of original jurisdiction (AOJ) to consider whether there were unusual or exceptional circumstances to warrant referral for extraschedular consideration of a total disability rating in this case. The AOJ determined that there was simply no evidence of unusual or exceptional circumstances to warrant referral for extraschedular consideration of TDIU in this case. The Veteran was so notified in the April 2012 supplemental statement of the case (SSOC). The Veteran argued, in an October 2012 statement, that the SSOC was "incomplete and lacked meaning." The SSOC states that consideration was given to extraschedular entitlement to TDIU, but that there was no evidence that the Veteran's case presented an "unusual" disability, rendered impractical the application of regular standards, or that the Veteran required frequent hospitalizations for the service-connected disabilities or presented symptoms that could not be accurately evaluated under the rating schedule. The Board sympathizes with the Veteran's assertion that the standards are difficult to understand or that the VA correspondence intended to discuss those standards are difficult to understand. However, the AOJ's discussion reflects that it applied the correct standard under the law and considered the evidence in the Veteran's case. The Board agrees with the AOJ's conclusion that referral for further consideration of an award of TDIU on an extraschedular basis is not required. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the Veteran's TDIU claim. There is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Entitlement to TDIU is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs