Citation Nr: 1309515 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 08-24 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from December 1982 to December 1986. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which reopened, and then granted, the Veteran's claim for service connection for anxiety disorder, not otherwise specified (NOS). The RO assigned an initial 30 percent rating for this disability retroactively effective from August 21, 2006, the date of receipt of this claim. And, in response, the Veteran appealed for a higher initial rating for this disability and for an earlier effective date for the grant of service connection for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran timely appeals an initial rating, VA adjudicators must consider whether to "stage" the rating to compensate her for times since the effective date of her award when her disability may have been more severe than at others). See also Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (When the claim arose in the context of the Veteran trying to establish his/her entitlement to service connection for the claimed disability, and this since has been granted, the Veteran has to separately appeal "downstream" issues such as the compensation level assigned for the disability and effective date.) As support for these claims, she testified at a videoconference hearing in June 2010 before the undersigned Veterans Law Judge of the Board. And in the course of her hearing testimony, she and her representative additionally alleged that she was unemployable because of the anxiety disorder, NOS. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). In Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) determined the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his posttraumatic stress disorder (PTSD). Citing Rice v. Shinseki, 22 Vet .App. 447 (2009), the Court reasoned that a request for a TDIU is not a separate claim for benefits, rather an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim. But as the Court explained in Rice, if the Board determines the TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. Remands to the RO generally are via the Appeals Management Center (AMC). VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). Therefore, in an August 2010 decision, the Board went ahead and adjudicated, albeit denied, the claim for an effective date earlier than August 21, 2006, for the grant of service connection for the anxiety disorder, NOS, but remanded the remaining claims for a higher initial rating for this disability and a TDIU for further development and consideration. Upon receiving the file back from the AMC, the Board issued a decision in October 2012 increasing the initial rating for the anxiety disorder, NOS, from 30 to 70 percent. The derivative TDIU claim required still further development, however, so the Board again remanded this claim to the RO via the AMC. The additional development of this remaining TDIU claim since has been completed. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). FINDINGS OF FACT 1. In the Board's prior October 2012 decision increasing the initial rating for the Veteran's anxiety disorder, NOS, from 30 to 70 percent, the Board concluded she was not entitled to an even higher 100 percent rating because she did not have total occupational and social impairment on account of this service-connected disability. 2. She did not appeal that October 2012 Board decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC), including especially to the extent it had denied an even higher 100 percent rating for her anxiety disorder, NOS. Rather than immediately deciding her derivative TDIU claim, the Board instead remanded this other claim partly to reassess the severity of her anxiety disorder, NOS, and especially for additional medical comment concerning whether it renders her unemployable. 3. Her anxiety disorder, NOS, which is her only service-connected disability, does not preclude her from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison to warrant assigning a total rating because of this disability. CONCLUSION OF LAW The criteria are not met for a TDIU. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his/her representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his/her representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). When the claim arose in the context of the Veteran trying to establish his/her entitlement to service connection for the claimed disability, then the VCAA notice must apprise him/her of all five elements of the claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). But if service connection is granted and, in response, the Veteran appeals a "downstream" issue such as the compensation level assigned for the disability or effective date, then VA does not have to provide additional VCAA notice concerning these downstream elements of the claim because the initial intended purpose of the notice has been served inasmuch as the claim as it arose in its initial context has been granted, so substantiated. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. Moreover, according to the U. S. Court of Appeals for the Federal Circuit, in a case as here involving a claim for an increased rating, so including a derivative claim for a TDIU, the notice described in 38 U.S.C.A. § 5103(a) need not be Veteran specific or advise the Veteran that, to substantiate his claim, he/she must submit medical or lay evidence showing the effect any worsening in his disability has on his/her employment and daily life. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Rather, VA need only provide generic notice advising him/her of the evidentiary and legal criteria for establishing his/her entitlement to greater compensation. Id. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in an SOC or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his/her claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this particular case at hand, the RO/AMC provided the Veteran VCAA notice concerning her claim by way of letters dated in September 2006, May 2008, September 2010 and December 2012. The content of these letters reflects compliance with the pertinent statutory and regulatory provisions and case law, noted above. In the letters, the RO/AMC acknowledged her claim, notified her of the evidence needed to substantiate it, identified the type of evidence that would best do so, apprised her of her and VA's respective responsibilities in obtaining this supporting evidence, notified her of VA's duty to assist her with her claim, and indicated it was developing her claim pursuant to this duty. Indeed, as the Board instructed in its October 2012 remand of this claim, the RO/AMC specifically informed her that she should provide to VA information on her job searches since graduating from college, including letters from prospective employers, counselors, or anyone else having knowledge regarding her capacity to work (or lack thereof). The RO/AMC also provided her information on a "downstream" effective date. As well, the RO/AMC identified the evidence it had received in support of her claim and the evidence it was responsible for obtaining. The RO/AMC indicated it would make reasonable efforts to assist her in obtaining all outstanding evidence, provided she identified the sources of it. The RO/AMC also noted that, ultimately, it was her responsibility to ensure VA's receipt of all pertinent evidence. Also in its October 2012 remand of this claim, the Board provided her further notice by explaining to her that she meets the schedular criteria for a TDIU, since in that decision the Board had increased the rating for her anxiety disorder, NOS, from 30 to 70 percent, but that the claims file did not include evidence establishing that she was incapable of obtaining or retaining substantially gainful employment because of this service-connected disability, which is her only service-connected disability so the only disability considered in making this important determination. The Board indicated this evidence was needed to support her claim for a TDIU. The Board's October 2012 remand of this claim also was to obtain a medical opinion on this determinative issue of employability since, as the Court had pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). The medical opinion resultantly provided in December 2012 is responsive to this determinative issue of employability, so in compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board commits error as a matter of law in failing to ensure this compliance.) Lastly, one of the VCAA notice letters was not sent in the preferred sequence, having been provided after, rather than before, initial adjudication of this claim. But the RO/AMC rectified ("cured") this timing defect in the provision of the notices by since readjudicating in an SSOC. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The SSOC is mistakenly dated in January "2011", but apparently was issued instead in January 2013 since it references the VCAA notice provided on remand in December 2012 as well as the December 2012 medical opinion also obtained on remand regarding whether the Veteran is unemployable on account of her service-connected anxiety disorder, NOS. B. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012). To this end, the RO/AMC obtained all evidence the Veteran identified as being potentially pertinent to her claim, including her service and post-service treatment records. Her recent treatment records are not physically in the claims file, but rather are available for review in the Virtual VA paperless claims processing system (electronic file). Now more than ever, the use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. The RO/AMC also, as mentioned, afforded the Veteran VA examinations and obtained an addendum medical opinion concerning her claim. She also had a videoconference hearing before the Board, during which she had an opportunity to discuss the severity of her service-connected psychiatric disability and its effect on her employability. Indeed, it was partly on the basis of her hearing testimony that the Board determined she had filed this derivative TDIU claim. Given all that has occurred, then, it is difficult to discern what additional guidance VA could have provided her as to what further evidence she should submit to substantiate her claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially, as here, another remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both her physical and electronic files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss in exhaustive detail each and every piece of evidence the Veteran has submitted or which VA has obtained on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to her). II. Analysis In a letter dated in February 2012, the Veteran indicated that she did not ask for a 100 percent rating due to total unemployability, rather, wanted an increase in the 30 percent rating assigned for her psychiatric disability - which the Board since has granted in its October 2012 decision increasing the rating for her anxiety disorder, NOS, from 30 to 70 percent, albeit denying an even higher 100 percent rating. According to letters dated in May 2008, October 2010 and August 2011 and her June 2010 hearing testimony, however, she is nonetheless claiming derivative entitlement to a TDIU. More specifically, she claims that her service-connected psychiatric disability is in fact totally disabling, rendering her unemployable. She asserts that she would like to feel normal and capable of working a full-time job, but her depression and anxiety are worsening and she feels hopeless and has suicidal ideation. She contends that she is motivated to work, but that her psychiatric disability interferes with her ability to find and retain a job or pursue a better paying job. Allegedly it manifests as daily panic attacks and depression, cognitive impairment, nervousness around people, anxiety as soon as she leaves her house, impaired memory and concentration, anger outbursts and continual tiredness. She explains that she previously worked for Walmart (left there in December 2004) and then worked in the laundry room at VA's Mountain Home facility in 2005. She finished college at East Tennessee State University in December 2009 and has not unable to obtain other employment since. Allegedly, she has not had any job interviews, even, as she is in the process of getting her driver's license reinstated and has no computer, which interferes with her ability to look and interview for jobs. The Veteran's representative points out the Veteran's reported history of feeling humiliated because of being fired from a job that she had had for only a week, acknowledges a VA examiner's finding that the Veteran could work in a slow-paced environment commensurate with her training, talents and abilities such as Good Will Industries and other retail thrift outlets, or on a part-time basis, but argues that this type of employment is just marginal and therefore should not be considered substantially gainful employment. A total disability evaluation may be assigned where the schedular evaluation is less than total (i.e., less than 100 percent) when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability or 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 ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or single accident, or affecting a single bodily system, will be considered as one disability for the above purposes of determining whether the Veteran has sufficient rating. 38 C.F.R. § 4.16(a) (2012). The Veteran satisfies these percentage requirements of § 4.16(a) since she has one service-connected disability - anxiety disorder, NOS - which, as a result of the Board's October 2012 decision, is now rated as 70-percent disabling rather than as just 30-percent disabling. Resolution of this appeal therefore turns instead on whether she is unable to secure or follow a substantially gainful occupation because of this service-connected disability. While the regulations do not define "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." See also Faust v. West, 13 Vet. App. 342 (2000) (defining "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 the veteran's earned annual income....) In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States 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. Id. Marginal employment is not considered substantially gainful employment and is 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. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. 38 C.F.R. § 4.18. A 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/her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment, however, is not enough. A high rating in itself constitutes 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 he/she can find employment. Id. That said, requiring a Veteran to prove that he/she is 100-percent or totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of a veteran's overall employability. A requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). On the whole, the evidence in this case establishes the Veteran does not meet the criteria for a TDIU. Her occupational background and educational attainment are satisfactory for employment purposes. According to information she provided on her October 2010 TDIU application (VA Form 21-8940), she graduated from high school, had last worked at Walmart in December 2004 (elsewhere in the file she also reported working in telemarketing in Oregon as a cashier and in restaurants as a data entry operator, and at a VA facility in 2005), and in September 2005, began pursuing a bachelor's degree at East Tennessee State University. She has since reported obtaining this degree in 2009. Medical records reflect that, during the course of this appeal, she sought frequent treatment, including medication, for her mental illness. Initially she also sought treatment for substance abuse. During the course of her evaluation and treatment, those in charge of her care discussed the effect of her symptoms of both the substance abuse and mental illness on her occupational functioning. They described the extent to which her psychiatric disability, alone, was affecting her employability. During this time she was in school and pursuing her bachelor's degree, but not working. In August and October 2006, the Chief of VA's mental health clinic and an unidentified provider from the same facility (possibly the Chief) submitted statements in support of this claim. According to these statements, prior to April 2005 the Veteran was in a substance abuse treatment program, but after April 2005 she became sober and received treatment, including from the Chief, for chronic depression. These providers, who might be one in the same, indicated that this illness interfered with the Veteran's daily functioning and rendered her totally disabled and unable to hold gainful employment. They provided no rationale for this opinion, however, including how a purported totally disabled, unemployable individual like the Veteran was able to pursue a college degree at a university. Discussion of the underlying medical rationale for an opinion, not instead mere review of the claims file, is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two"); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). During a VA mental disorders examination in September 2007, a VA examiner found that the Veteran's psychiatric findings interfered with employment. This examiner also found that the Veteran's increased anxiety interfered with her ability to continue in gainful employment. But as already explained, according to Van Hoose mere interference with employment or continued employment is to expected whenever there is a rating in effect for a service-connected disability, especially when, as here, the Veteran has a rating of 70 percent that is in the higher end of the rating spectrum. See 38 C.F.R. § 4.1. Also, this examiner, like the one previous, provided no discussion of the underlying rationale for this opinion, including why she believed that an individual like the Veteran, who was pursuing a college degree at a university, could not continue employment were she not attending school. The Board must assess the credibility and weight to be attached to a medical opinion. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may favor one over another provided each opinion includes adequate statements of reasons or bases. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Given that the 2006 and 2007 opinions include no reasons, bases or rationale, let alone adequate, the Board finds them not probative. VA outpatient treatment records dated since 2007 include multiple references to a worsening psychiatric disability, but no particular discussion regarding whether the Veteran is unemployable secondary to her psychiatric symptoms. They also include some references to improved psychiatric symptoms secondary to changes in medication and/or the dosages of the medications. From 2005 to 2008, the Veteran reported that her psychiatric symptoms were interfering with her performance at school and causing her to do poorly and fail; however, given that she graduated and eventually obtained her degree in 2009, they did not completely hinder her goal of graduating from college. During this time period, medical professionals occasionally attributed some of her reported symptoms, including memory impairment, to her prior substance abuse or possibly to perimenopause. Disability resulting from alcohol or drug abuse, since it is willful misconduct, generally cannot be service connected. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m) , 3.303(c)(3) and (d). VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). There is just a very limited exception to this general rule. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. The Federal Circuit Court further held, however, that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Beginning in August 2008, the Veteran discussed her career with a guidance counselor and developed direction. She was leaning toward a job in criminal justice and, in the meantime, was interested in obtaining a part-time job. As of 2010, she remained unemployed. During a VA mental disorders examination in November 2010 the examiner noted that, since 2007, the Veteran had met with a psychiatrist for medication management on 20 occasions and had participated in 24 individual counseling sessions. She also noted that the Veteran had not tried to look for work since shortly after receiving her degree in December 2009 (sent out resumes immediately after graduation, but then stopped) due to a lack of a driver's license and car and her desire for the right kind of job and working environment. The examiner conducted testing, which revealed cognitive impairment and possibly dementia. She initially noted severe anxiety, but with questionable validity given that the Veteran scored some items idiosyncratically, and subsequently noted that the Veteran likely had moderate-to-severe anxiety. The examiner also noted that the testing revealed severe impairment in executive functioning, which was not consistent with the Veteran's reports of being able to manage bills and finances and complete a four-year college degree. The examiner noted that these inconsistent findings had strong implications with regard to the matter of employability and, as such, neuropsychological testing should be conducted to resolve the issue. The examiner explained that, if such testing revealed normal functioning, then the Veteran is capable of securing and maintaining employment in a setting that would allow her flexibility in scheduling and a solitary work environment. If such testing revealed diminished, but not impaired, functioning then the Veteran is capable of securing and maintaining part-time employment in a more sheltered work environment (one suited to her limitations). If such testing revealed true impairment in executive functioning and/or memory (which is not necessarily a symptom of her psychiatric disability) then the Veteran is totally occupationally impaired. During a December 2011 VA examination, another examiner found that it is not possible to differentiate the Veteran's reported symptoms that are attributable to her psychiatric disability from those that are due to other disabilities. She thus considered all of the Veteran's reported symptoms in deciding whether the Veteran is unemployable. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). She first discussed the report of the December 2010 VA examination and indicated that, although the Veteran had questionable results then, she performed excellently during this additional examination, thereby resolving the prior questions. The examiner found that, despite the Veteran's difficulties, she could work part time. There is some question as to whether part-time work, as referenced by the VA examiner, constitutes more than marginal employment. Being unclear, the Board remanded this claim in October 2012 for another medical opinion on this matter. In remanding the claim, the Board discussed the reasons and bases for discounting the other opinions that had been provided to date on this determinative issue of employability. The Board explained that, after obtaining the initial opinions on employability (2006 and 2007), evidence was associated with the claims file that showed the Veteran was leading a productive life (attending college) and seeking employment and that employment was still seemingly possible. The Board also explained that, then recently, the Veteran had submitted correspondence indicating that she had looked for work, though remained unemployed. The Board discussed the importance of submitting evidence corroborating this assertion and showing that she had actually sought and been denied employment. In December 2012, while this claim was on remand, the Veteran underwent a comprehensive VA mental disorders examination for the purpose of obtaining an adequate medical opinion on this issue of employability. During this additional examination she reported that she had enrolled in the same college again, was pursuing a degree in Women's Studies as her prior degree is not marketable, had worked for one week at a call center, but was fired because she could not keep pace, was humiliated by that experience, and now believes the only job at which she would succeed is "something low key." The examiner reviewed and discussed all recent treatment records in Virtual VA and observed these records reveal that, from August 2011 until recently, the Veteran had stopped attending medication management visits and psychotherapy sessions. She then had reestablished contact and, in March 2012, reported working at a store. There is no doubt she is severely impaired as a result of her service-connected anxiety disorder, NOS. But in assigning the higher 70 percent rating for this disability, the Board recognized that her impairment makes it difficult for her to obtain and keep employment. See again Van Hoose and 38 C.F.R. § 4.1. The December 2012 VA examiner noted the Veteran continues to have symptoms, including a depressed mood, anxiety, chronic sleep impairment, mild memory loss, motivation and mood disturbances, and difficulty adapting to stressful circumstances, which together interfere with her occupational functioning. But this examiner did not find true impairment in executive functioning as defined by the November 2010 VA examiner. During the December 2012 VA examination, the Veteran reported being able to manage her financial affairs and, as previously indicated, she was attending college, apparently for the second time, having completed the requirements for a prior degree, albeit one that she does not now feel makes her marketable in today's job environment. But according to the holding in Van Hoose, merely because she is having difficulty in obtaining other employment, including since obtaining her other degree, which in turn apparently prompted her to obtain yet another type of degree, is not tantamount to concluding she is unemployable, only instead admittedly having difficulty obtaining employment suitable to her needs. According to the November 2010 examiner, this diminished, but not totally impaired, functioning suggests the Veteran is capable of obtaining and maintaining employment, albeit with certain accepted restrictions in terms of what is and is not feasible Indeed the December 2012 VA examiner so concluded by noting in her report that the Veteran does not meet the criteria for a TDIU. She based this opinion on the following rationale: (1) The Veteran reports a strong need to get out of her home and engage in meaningful activity; (2) She will do this despite the frustrations inherent in having to access public transportation; (3) In a recent handwritten statement to the Veterans Benefits Administration (VBA), she indicated that she was not asking for a 100-percent rating or total unemployability, but rather, wanted an increase in the 30 percent rating assigned her psychiatric disability (which, as mentioned, she already has received in the Board's prior October 2012 decision); (4) During the examination, she demonstrated the motivation to engage in meaningful activity and the physical ability to do this despite her fatigue; (5) Although the Veteran reports concentration and memory difficulties attributable to her psychiatric disability, there is no indication that anything other than emotional factors are contributing to these problems; (6) The Veteran reported she is impaired most in fast-paced work environment, but there are many slow-paced work environments that exist commensurate with the Veteran's training, talents and abilities (Good Will Industries and other similar retail thrift outlets were mentioned as examples); (7) Other work environments can be made into a slower-paced work environment by offering part time employment; (8) The Veteran would benefit from the services of a Vocational Rehabilitation Specialist, which are available through VA and the state, for assistance with job searching and placement; (9) The Veteran has never attempted this type of treatment modality and, as such, one does not know what her progress would be if she attempted to obtain such help; and (10) The Veteran has an advanced degree although it is not marketable (no jobs specifically for a graduate or generalist in a liberal arts study program). While this claim was on remand and since, the Veteran has not submitted evidence corroborating her assertion that she has attempted to obtain employment and been denied because of her service-connected anxiety disorder, NOS. And, because of her lack of response, it is unclear whether she still works at the store she mentioned during the March 2012 outpatient visits. During the December 2012 VA examination, she reported being fired from a job at a call center, not a store. The duty to assist her with her claim is not a one-way street. If she wishes help in developing her claim and showing that she has attempted unsuccessfully to obtain and retain employment, she cannot passively wait for it. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To the extent she has made such an effort, she and the employers she contacted and/or who fired her are the only entities with information reflecting her attempts. Because she never submitted such information to VA, the Board must rely solely on the evidence now available in the claims file. According to that evidence, as of 2012, she was again attending college, working at a store and, according to the sole medical professional who provided a well-reasoned, substantiated opinion in this case, capable of employment, albeit in a certain type of environment. This examiner, however, did not suggest even this environment needed would equate to just marginal employment versus employment, instead, which is still nonetheless substantially gainful. The Veteran's representative contends that the type of employment that the medical professional referenced is marginal, rather than substantially gainful. The Board agrees that in some cases, work in a retail thrift outlet or on a part-time basis would not result in wages exceeding what is considered to be above poverty level. But the VA examiner noted certain employment options as examples and did not intend her list to represent the only options available to the Veteran. More importantly she indicated that, because the Veteran had not attempted to obtain vocational rehabilitation, including through VA or the state, it is unclear what employment options are available to the Veteran. The Veteran has not submitted a medical opinion refuting that of the VA examiner. The Veteran's assertions, which, incidentally, are inconsistent, thus represent the only evidence of record establishing that her service-connected disability, alone, renders her unable to secure or follow substantially gainful employment. These assertions may not be considered competent, however, as the record does not reflect that she possesses a recognized degree of medical knowledge to provide a medical opinion on this determinative issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For these reasons and bases, the Board concludes that a preponderance of the evidence is against this claim for a TDIU. In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine, but as there is not an approximate balance of positive and negative evidence of record, this doctrine is not for application. 38 C.F.R. § 4.3. ORDER This claim for a TDIU is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs