Citation Nr: 1310341 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-28 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU) prior to March 8, 2010. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1968 to April 1970, including service in the Republic of Vietnam. His military decorations include the Combat Infantryman Badge and the Bronze Star Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for an increased evaluation above 30 percent for post-traumatic stress disorder (PTSD). During the pendency of this appeal, an April 2010 rating decision granted the Veteran service connection and a 100 percent schedular evaluation for prostate cancer, effective March 8, 2010. (The 100 percent schedular evaluation for prostate cancer has been subsequently confirmed and continued in an August 2011 rating decision. Additionally, the Veteran is currently is receipt of special monthly compensation for loss of use of creative organ and for having a 100 percent-rated disability with additional service-connected disabilities independently ratable at 60 percent or more from March 8, 2010. See 38 U.S.C.A. § 1114(k), (s) (West 2002); 38 C.F.R. § 3.350(a), (i) (2012).) In a June 2011 Board decision, the Veteran was granted an increased rating to 50 percent for PTSD. The increased rating claim for PTSD is therefore no longer in appellate status. The Board's allowance was thereafter implemented by the RO in a July 2011 rating decision, which assigned an effective date of November 24, 2008, based on the date of receipt of the Veteran's application to reopen his PTSD claim for a rating increase. See 38 C.F.R. § 3.400(o)(2). In its June 2011 appellate decision, the Board also determined that pursuant to the United States Court of Appeals for Veterans Claims' decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), because the Veteran asserted in his claim for an increased rating for PTSD that his psychiatric symptoms rendered him unable to work, a TDIU claim was implicitly raised by the record during the pendency of the increased rating claim and is now part and parcel to the increased rating claim. Thusly, the TDIU claim was remanded to the RO for appropriate development and consideration by the agency of original jurisdiction. In a May 2012 rating decision/supplemental statement of the case, the RO denied the TDIU claim on the merits. The claim was returned to the Board in August 2012, and the Veteran now continues his appeal. FINDINGS OF FACT 1. The Veteran was awarded service connection and a 100 percent schedular evaluation for prostate cancer, effective March 8, 2010. 2. The Veteran's current claim for a TDIU was received by VA on November 24, 2008. 3. From November 24, 2008 to March 8, 2010, the Veteran was service-connected for PTSD (rated 50 percent disabling), Type II diabetes mellitus (rated 20 percent disabling), tinnitus (rated 10 percent disabling), and bilateral hearing loss (rated noncompensably disabling), which produced a combined disability rating of 60 percent. 4. The Veteran's service-connected PTSD, tinnitus, and bilateral hearing loss are deemed to be one disability resulting from a common etiology (i.e., combat service), rated as 60 percent disabling from November 24, 2008. 5. From November 24, 2007 to March 8, 2010, the Veteran was not precluded from securing and following a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU from November 24, 2007 to March 8, 2010, to include on an extraschedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.400(o)(2), 4.16(a), (b), 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This appeal stems from the Veteran's TDIU claim, which was received by VA on November 24, 2008, as part and parcel to his claim for a rating increase for PTSD, per the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), which was rendered during the pendency of this appeal. The Veteran was provided with timely notice of the VCAA as it pertained to his TDIU claim in March 2012 and further informed him of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As this notice was furnished prior to the May 2012 rating decision that adjudicated the TDIU claim in the first instance, no timing of notice error exists. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. The Board also concludes VA's duty to assist has been satisfied. The Board has reviewed the Veteran's claims file and observes that prior to the March 2009 rating decision on appeal, the most recent adjudication of the rating assigned for PTSD was an unappealed rating decision dated in late February 2004. Notice of this decision was sent to the Veteran in late February 2004. Thereafter, no evidence that was new and material to his increased rating claim for PTSD was submitted to VA within one year immediately following notification of the February 2004 rating decision. Therefore, there is no pending claim for a rating increase for PTSD (and thusly a TDIU) prior to November 24, 2008. [See Bond v. Shinseki, 659 F.3d 1362 (2011): The Federal Circuit held in Bond that 38 C.F.R. § 3.156(b) requires VA to decide whether additional evidence received after a rating decision but before the expiration of the appeal period constitutes new and material evidence. If the regional office fails to make this determination, the claim remains pending.] Therefore, the pertinent period at issue is from November 24, 2007 (i.e., one year prior to the date of receipt of the increased rating/TDIU claim, per 38 C.F.R. § 3.400(o)(2)) to March 7, 2010 (i.e., one day prior to the effective date of the 100 percent schedular rating assigned for an award of service connection for prostate cancer). Private, Social Security Administration (SSA), and VA medical records and examination reports pertaining to the Veteran's multiple service and non-service-connected disabilities for the period from 2003 - 2012 have been obtained and associated with his claims folder, or are otherwise viewable on the Virtual VA electronic database. These include a VA psychiatric examination report dated in February 2009, in which the Veteran's employment history is discussed. The February 2009 VA examiner's report is predicated upon a clinical examination of the Veteran and is presented in the context of his relevant clinical history, and the Board thus finds it adequate for purposes of adjudicating the present claim on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the aggregate of the clinical evidence is sufficient to present a picture of the impact of the Veteran's service-connected disabilities upon his occupational capacity. The evidence of record is therefore sufficient to allow the Board to determine the occupational impact of the Veteran's service-connected disabilities on his industrial capacity in the context of his age, and vocational and educational history. In any case, the Veteran and his representative have been provided ample opportunity to add to the record prior to the return of this case to the Board and they have not identified any relevant outstanding evidence whose inclusion in the record is deemed necessary to fairly adjudicate the current TDIU claim. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As previously stated, the Veteran's service-connected prostate cancer is rated at 100 percent from March 8, 2010, under 38 C.F.R. § 4.115b, Diagnostic Code 7528 of the rating schedule. Total disability based upon individual unemployability contemplates a schedular rating less than total. 38 C.F.R. 4.16(a) (2012). Since the Veteran in this case is entitled to a 100 percent schedular rating for his service-connected prostate cancer effective from March 8, 2010, he is not eligible for a TDIU evaluation from that date. See Vettese v. Brown, 7 Vet App. 31 (1994) ("claim for TDIU presupposes that the rating for the condition is less than 100 percent"); Holland v. Brown, 6 Vet App. 443 (1994). In essence, assignment of a TDIU rating for the period after March 8, 2010 is moot as the Veteran has a total schedular rating based on his service-connected disabilities. Therefore, the Board characterizes the present issue as entitlement to a TDIU prior to March 8, 2010. VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA 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." 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 TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); 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 (2012). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012) 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 (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 disability. 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 rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. As previously stated, the Board itself cannot assign an extraschedular rating in the first instance. However, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular 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). 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). From November 24, 2008, but prior to March 8, 2010, the Veteran was service-connected only for PTSD (rated 50 percent disabling), Type II diabetes mellitus (rated 20 percent disabling), tinnitus (rated 10 percent disabling), and bilateral hearing loss (rated noncompensably disabling), which produced a combined disability rating of only 60 percent according to Table 1 of 38 C.F.R. § 4.25 (2012). However, 38 C.F.R. § 4.16(a) provides that disabilities resulting from common etiology may be deemed all as one single disability for purposes of establishing a single disability rated as 60 percent disabling. In the present case, the Veteran's PTSD, tinnitus, and bilateral hearing loss can be directly attributed to his combat service in Vietnam, where he was exposed to psychiatric stressors from the carnage of war and acoustic trauma from exploding ordnance and small arms fire consistent with participation in armed combat. The PTSD, which is rated 50 percent disabling, combined with the 10 percent rating for tinnitus, produces the requisite 60 percent rating under 38 C.F.R. § 4.25. Therefore, the Veteran has met the minimum rating requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a). As relevant to the period between November 24, 2007 to March 7, 2010, the clinical evidence of record proximate to this period includes a September 2007 VA examination report showing that the Veteran was employed in a part-time position with the United States Forestry Service and that he denied losing any time in the last 12-month period due to a service-connected disability. Thereafter, an October 2008 VA PTSD psychiatric consultation report shows that the Veteran was born in 1944, making him 64 years old at the time. He reported completing 12th grade (i.e., he earned a high school diploma) and related an employment history that included a 36-year career working at a paper mill factory beginning after high school (with a two-year break to serve on active duty) before retiring. Afterwards, he worked part-time for the U.S. Forestry Service until funding for his employment was exhausted, thereby closing out his position. A February 2009 VA psychiatric examination report shows that the Veteran explained that he ended his employment at the paper mill factory in 2002 after working there for 36 years because he had personal difficulties with his superiors and also that his PTSD symptoms hampered his work capacity, although he admitted that he did not lose any time from work at the paper mill due to his service-connected disabilities. Without the daily routine of work, he reportedly became mentally restless at home. In order to keep his mind occupied instead of dwelling on intrusive and stressful memories of his Vietnam combat service, he took part-time employment with the U.S. Forestry Service and was paid the minimum wage. He reported that he enjoyed working for the U.S. Forestry Service as he was usually allowed to work outside in solitude. After four years in its employ, he left the U.S. Forestry Service to take employment in a higher paying position at his friend's business, in which he organized and delivered automobile parts. He mostly worked by himself, which he preferred due to his socially avoidant tendencies associated with his PTSD. In 2008, he returned to his old job at the U.S. Forestry Service, but was laid off in October 2008 because of funding cutbacks. He again found himself too mentally restless to stay at home without work, so he returned to work at his old job at his friend's business, organizing and delivering automobile parts. He reported that the work was beneficial in that it kept him from mentally dwelling on Vietnam, but his PTSD did produce some impairment in his ability to effectively function in a social and employment setting in that he still experienced difficulties controlling his temper at work, which occasionally contributed to verbal arguments with customers and co-workers. The February 2009 VA examiner deemed the Veteran to have moderate occupational impairment due to PTSD. Similar findings were presented in a Vet Center counselor/social worker's report dated August 2009. A May 2009 VA treatment note reflects that the Veteran was employed as a truck driver. The contemporaneous records do not otherwise indicate that the Veteran was incapable of gainful employment or occupationally incapacitated by his service-connected disabilities prior to March 8, 2010. The Board has considered the clinical evidence discussed above. Overall, it shows that a measure of occupational impairment associated with the Veteran's multiple service-connected PTSD, Type II diabetes mellitus, bilateral hearing loss, and tinnitus (with PTSD being the primary producer of such impairment), exists for the period from November 24, 2007 to March 7, 2010. However, the Veteran has nevertheless demonstrated an admirable willingness and capacity to work during this period, deliberately seeking those types of jobs whose duties would accommodate his PTSD-induced desire for solitude and minimal supervision. The objective record demonstrates that he has, in fact, held steady employment in at least a part-time capacity up to March 8, 2010, switching between jobs primarily because of external factors unrelated to his service-connected disabilities, such as a desire to receive higher remunerative pay or because funding for one position ran out and he was laid off as a result. In view of the foregoing discussion, the Board finds that the preponderance of the evidence of record does not show that the Veteran is unable to obtain and maintain a substantially gainful occupation because of the severity of his service-connected PTSD; Type II diabetes mellitus; tinnitus; and hearing loss for the period from November 24, 2007 to March 8, 2010. Therefore, his claim for a TDIU under the regulatory provisions of 38 C.F.R. § 4.16(a) must be denied. Furthermore, in view of this preceding discussion, the Board also finds that there is no basis to refer his TDIU claim to the Director of the Compensation & Pension Service for consideration of an extraschedular grant of a TDIU under § 4.16(b) for the period from November 24, 2007 to March 8, 2010. Because the evidence in this case is not approximately balanced with respect to the merits of his TDIU claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to a TDIU, to include on an extraschedular basis, for the period from November 24, 2007 to March 8, 2010, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs