Citation Nr: 1315057 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 06-22 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 5, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied entitlement to a TDIU. A hearing was held in July 2010 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing is in the claims file. In September 2010, the Board remanded the issue for further development. A January 2012 rating decision by the RO granted a 100 percent rating for posttraumatic stress disorder (PTSD) effective from October 5, 2010, rendering discussion of entitlement to a TDIU after that date moot. The matter was again remanded by the Board in October 2012, and now returns for further appellate consideration. The Veteran's Virtual VA file has also been reviewed as part of his appeal. The issues of entitlement to service connection for hypertension, and whether new and material evidence has been received to reopen a previously denied claim for service connection for a back condition, have been raised by the record, specifically in the April 2013 brief submitted by the Veteran's representative, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). They are referred to the AOJ for appropriate action. Because the grant of service connection for any of the above pending claims would be after October 5, 2010, they bear no relevance to the issue on appeal. See 38 C.F.R. § 3.400 (2012). FINDINGS OF FACT 1. Service connection has been in effect during the period on appeal for PTSD (70 percent); urinary incontinence (20 percent since September 24, 2009); muscle damage of abdominal wall (10 percent); hemorrhoids (0 percent); abdominal scars (0 percent); erectile dysfunction (0 percent); and prostate cancer (100 percent from January 23, 2008, and 0 percent from December 1, 2008). His combined rating has been 70 percent prior to January 23, 2008; 100 percent from January 23, 2008 to November 30, 2008; 70 percent from December 1, 2008 to September 23, 2009; and 80 percent from September 24, 2009. 2. Prior to February 24, 2009, the preponderance of the evidence shows that that the Veteran was not unable to secure or maintain substantially gainful employment solely by reason of his service-connected disabilities. 3. From February 24, 2009, the Veteran's service-connected disabilities, in particular his PTSD, prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to February 24, 2009, the criteria for a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). 2. From February 24, 2009, the criteria for a TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). The notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claim, a letter dated in July 2004 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran was not provided with the TDIU criteria or the types of evidence that was needed to substantiate such a claim. However, through written statements and hearing testimony, the Veteran offered evidence as to how his service-connected disabilities rendered him unable to secure or maintain employment. Therefore, with respect to any specific notice requirements associated with the Veteran's TDIU claim, the Board finds that he had actual knowledge of how to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of the claim in this Board decision. Rather, remanding this case to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran's service treatment records, VA treatment records, private treatment records, VA authorized examination reports, Social Security Administration (SSA) records, lay statements and hearing transcript have been associated with the claims file. Included among those records are medical opinions which address the impact of the Veteran's service-connected and nonservice-connected disabilities on his ability to find and maintain employment. As noted above, the Veteran testified before the undersigned at a July 2010 hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ elicited testimony to substantiate the Veteran's claim and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. The hearings focused on the elements necessary to substantiate the claims and the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. Consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claims based on the current record. VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. TDIU A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. A Veteran's level of education, special training, and previous work experience may be considered in arriving at a conclusion, but not the Veteran's age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). The critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. However, disabilities resulting from common etiology will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). As noted, service connection has been in effect during the period on appeal for PTSD (70 percent); urinary incontinence (20 percent since September 24, 2009); muscle damage of abdominal wall (10 percent); hemorrhoids (0 percent); abdominal scars (0 percent); erectile dysfunction (0 percent); and prostate cancer (100 percent from January 23, 2008, and 0 percent from December 1, 2008). His combined rating has been 70 percent prior to January 23, 2008; 100 percent from January 23, 2008 to November 30, 2008; 70 percent from December 1, 2008 to September 23, 2009; and 80 percent from September 24, 2009. Therefore, the schedular criteria for a TDIU have been met throughout the appeal period, but are not applicable from January 23, 2008 through November 30, 2008. See 38 C.F.R. § 4.16(a). Remaining for resolution is the question of whether there is probative evidence of his unemployability because of service-connected disabilities. See Hodges v. Brown, 5 Vet. App. 375 (1993) and Blackburn v. Brown, 4 Vet. App. 395 (1993) (indicating VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU). As the Court explained in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough. Id. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The resolution of this appeal ultimately turns on whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. While the regulations do not provide a definition of "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." 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 the 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 also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the U.S. Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), which stated that 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. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore at 358. Marginal employment generally shall be 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. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In this case, the Veteran's PTSD is service connected, and the evidence includes Global Assessment of Functioning (GAF) scores. Within the DSM-IV, GAF scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Id. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. Although they precede the period on appeal, the Veteran's 2001 SSA records show that he reported being unable to work due to back pain. His statements were found credible, and he was granted SSA disability benefits for a back disorder and osteoarthrosis. Private treatment records from August 2001 show the Veteran's PTSD resulted in moderate difficulties in occupational adjustment that impaired his ability to tolerate work pressure. A March 2005 VA examination for PTSD indicated that the Veteran was unable to control his anger and irritability to the point that it was impacting his day to day functioning on the job. His GAF score was 51 to 55. A December 2006 letter from the Veteran's treating physician stated that the Veteran had low back and leg pain due to arthritis of the lumbar spine. Although he was undergoing treatment, this was a chronic condition and he was unable to work. Additional VA records from November 2008 and December 2008 reflect GAF scores of 66. A February 2009 letter from the Veteran's treating clinical social worker referenced the Veteran's PTSD and chronic pain due to degenerative disc disease. He stated that the Veteran should be considered totally disabled and unemployable due to the severity of his medical and psychiatric conditions. His GAF score was 40. Records from June 2009 show GAF scores of 45 and 49. An August 2009 VA examination for PTSD noted that the Veteran's symptoms significantly impacted his social and occupational functioning, resulting in a clear impairment of his ability to work and have meaningful relationships. His GAF score was 45. A November 2009 letter from the Veteran's treating clinical social worker stated that the Veteran had significant impairment in daily functioning and was considered unemployable by his treatment team in the PTSD clinic. His GAF score was 40. Additional VA records indicate the Veteran's GAF score from November 2009 through August 2010 was 49. At his July 2010 hearing, the Veteran testified that he officially retired from work in 2001 or 2002 due to degenerative disc disease in his back. He was in chronic pain, and he could not bend or lift. He had not sought further employment since that time due to pain. He also testified that he was a high school graduate. His last job was as a maintenance technician with the U.S. Postal Service. Prior to that, he worked as a tariff clerk with the Port Authority. In September 2010, his GAF score was 40, and his treating social worker indicated that he was "totally disabled" due to PTSD. A TDIU is not warranted prior to February 24, 2009, as the evidence does not demonstrate that the Veteran was unable to secure or maintain gainful employment solely as a result of service-connected disabilities. Specifically, the Veteran's 2001 SSA records and the December 2006 letter from his physician clearly indicate that the Veteran's nonservice-connected low back condition rendered him unable to work. This is also supported by the Veteran's July 2010 hearing testimony. Records from August 2001 only show moderate impairment from PTSD. While the March 2005 VA examination stated that the Veteran's PTSD symptoms "impacted" day-to-day functioning on the job, such impact would be contemplated by the 70 percent rating assigned for PTSD at the time. The VA examination does specifically state that the Veteran was totally unable to work as a result of PTSD. Moreover, his GAF scores during this period ranged from 51 to 66, which reflect serious but not total impairment due to PTSD. However, the February 24, 2009 letter from the Veteran's treating social worker stated that the Veteran should be considered totally disabled and unemployable due to the severity of his medical and psychiatric conditions. While this letter clearly references the Veteran's nonservice-connected low back condition, it also assigned a GAF score of 40, which reflects a level of PTSD impairment generally consistent with an inability to do work. Subsequent GAF scores were no higher than 49, with additional scores of 40 in November 2009 and September 2010. Records from those dates specifically stated that the Veteran was unemployable due to PTSD. Therefore, a TDIU is appropriate only from February 24, 2009, as the evidence generated from this date reflects that the Veteran's service-connected disabilities rendered him unable to secure or maintain gainful employment. (CONTINUED ON NEXT PAGE) ORDER Prior to February 24, 2009, TDIU is denied. Effective February 24, 2009, TDIU is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs