Citation Nr: 1311908 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 07-14 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor INTRODUCTION The Veteran served on active duty from January 1972 to January 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the St. Petersburg, Florida, VA Regional Office (RO). In January 2011, the Board remanded the matter for additional development. FINDING OF FACT PTSD does not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for an award of a total disability rating based on individual unemployability are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A November 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a July 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination were obtained in February 2011. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in June 2012; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examiner reviewed the claims file, and the rationale provided for the opinion is based on objective findings, reliable principles, and sound reasoning. The opinion is supported by VA treatment records. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Higher Evaluation Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2012). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. Id. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the Veteran to prevail on his TDIU claim, it is necessary that the record reflect some factor which takes his case outside the norm of other such Veterans. 38 C.F.R. §§ 4.1, 4.15 (2012). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a disability evaluation is itself recognition of industrial impairment. See 38 C.F.R. § 4.1 (2012). The Veteran's PTSD with depression and polysubstance abuse in remission is assigned a 70 percent evaluation, from March 3, 2005. The Veteran meets the threshold requirement for a TDIU based solely on PTSD. 38 C.F.R. § 4.16(a). A non-compensable disability evaluation was assigned for a service-connected residual burn scar of the left hand. A November 2007 rating decision reflects service connection was granted for heterotopic myositis ossificans of the left hip, status post total left hip arthroplasty, effective March 2007, and a noncompensable disability evaluation was assigned. The Veteran's October 2005 claim for a TDIU reflects that he became unemployed as a forklift operator on December 6, 2003. A June 2008 VA Vocational Rehabilitation record notes that, although he had vocational rehabilitation training in technology/networking systems, he had recently accepted a civil service job due to an inability to become employed in his original vocational goal. The June 2012 VA examination report indicates that he is employed in that same civil service job with duties noted to include labor without difficulties. There is no entitlement under the law to a TDIU during periods of gainful employment. See Faust v. West, 13 Vet. App. 342, 356 (2000). The Veteran is competent to report his symptoms. Competence and credibility, however, are to be distinguished. Although the Veteran asserted in the April 2007 VA Form 9 that he chose a lay off from his job as a forklift operator in 2003 because his supervisor stated that she was afraid of him, a September 2002 VA letter associated with his VA Vocational Rehabilitation folder notes osteoarthritis in the hips and left knee and that the duties associated with operating a forklift, to include frequent mounting and dismounting, would accelerate the degenerative process of the disease. Training in a non-physical occupation was recommended. A December 2005 VA treatment record noted limited activity due to chronic left hip pain; that he quit his job as a forklift operator; and was attending school in furtherance of getting a "sit-down type job." The November 2007 VA joints examination report notes his report of inability to perform his duties as a forklift operator since left hip arthroplasty in 2005. With respect to the March 2005 private opinion to the effect that the Veteran is unemployable due to PTSD, the Board finds the opinion to be of little, if any, probative value. The Board recognizes that the private examiner's opinion cannot be rejected solely because it is based upon a history supplied by the claimant. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Moreover, the Court has held that a claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a strict requirement for private medical opinions, and that a private medical opinion may not be discounted solely because the opining clinician did not describe review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The critical question is whether the medical opinion is credible in light of all the evidence. In fact, the Board may reject a medical opinion that is based on facts provided by the appellant which have been found to be inaccurate or because other facts present in the record contradict the facts provided by the appellant which formed the basis for the opinion. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). An adequate rationale for the opinion was not provided and no objective findings were reported. A medical opinion without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). The May 2006 VA PTSD examination report reflects the Veteran was laid off as a fork lift operator in 2003 due to a lack of business, not PTSD. It was noted that he was working in night school studying computer networking. Although a November 2004 VA record notes difficulty with finding a job, he was encouraged to look for work in a computer-related field. Although not bound by a Social Security Administration (SSA) determination, the Board has given consideration to the SSA records/determinations. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). The June 2005 SSA determination reflects that he did not meet the disability criteria due to a primary diagnosis of osteoarthrosis and/or anxiety related disorders. The June 2012 VA examiner specifically determined that the Veteran is not unemployable due to a mental disorder and that PTSD would not preclude light duty or sedentary employment. In addition to being employed, it was noted that he had completed a Bachelor's degree in 2011. The GAF score of 60 assigned was noted to correspond with the Veteran's moderate PTSD symptoms. The preponderance of the evidence is against a finding that service-connected disabilities preclude substantially gainful employment during the relevant period; there is no doubt to be resolved; and a TDIU is not warranted. ORDER A TDIU is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs