Citation Nr: 1315950 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 08-17 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 6, 2011. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. To briefly explain the procedural history of the Veteran's claim, in December 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to provide the Veteran with appropriate notice under 38 C.F.R. § 3.159 for the claim of TDIU, and to adjudicate the claim. A full discussion regarding the RO's compliance with the December 2010 Board Remand is included in the Duties to Notify and Assist section below. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In a March 2011 rating decision, the RO awarded service connection for prostate cancer and assigned a 100 percent disability rating, effective January 6, 2011. For the period for which the Veteran was in receipt of a 100 percent schedular disability rating for prostate cancer, from January 6, 2011 to January 1, 2013, the claim for a TDIU is rendered moot during this appeal period due to the 100 percent schedular evaluation for prostate cancer because there remain no questions of law or fact to be decided regarding TDIU for this period. See 38 C.F.R. § 4.16(a) (2012) (providing that a TDIU may be assigned "where the schedular rating is less than total"). In a July 2012 rating decision, the Veteran's service-connected PTSD was increased to 70 percent disabling, effective May 24, 2011, and the RO proposed to reduce the service-connected prostate cancer to 40 percent disabling. The RO reduced the service-connected prostate cancer to 40 percent disabling in an October 2012 rating decision, effective January 1, 2013 and also awarded a TDIU, effective January 1, 2013. For clarity, the issue on appeal encompasses only the appeal period when the Veteran was not awarded a 100 percent schedular evaluation or a TDIU, which is prior to January 6, 2011. After January 6, 2011, the Veteran either had a 100 percent schedular evaluation or a TDIU. In October 2010, the Veteran testified at a Board Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. Prior to January 6, 2011, the Veteran was service connected for posttraumatic stress disorder (PTSD) (rated at 50 percent disabling), tinnitus (rated at 10 percent disabling), and bilateral hearing loss (rated as noncompensable). 2. Prior to January 6, 2011, the percentage ratings for the Veteran's service-connected disabilities do not meet the minimum combined schedular criteria for the grant of a TDIU as service connection was not in effect for one disability rated at least 60 percent disabling, or at least one disability rated at 40 percent with sufficient additional service-connected disabilities such that the combined disability rating was at least 70 percent. 3. Prior to January 6, 2011, the Veteran was not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of his service-connected disabilities, and a referral to the Director of Compensation and Pension for consideration of a TDIU under 38 C.F.R. § 4.16(b) is not warranted. CONCLUSION OF LAW For the period prior to January 6, 2011, the criteria for a TDIU have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Some discussion of the October 2010 Board hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. In this case, entitlement to a TDIU was identified as an issue at the Board hearing. Information was elicited from the Veteran by the undersigned concerning his work history as well as the impact of his service-connected disabilities, particularly PTSD, on his ability to work. Sources of evidence relevant in this regard were discussed during this process. As noted, the matter was then remanded to further develop the appeal. As such, these actions fulfilled the duties under 38 C.F.R. § 3.103(c)(2). In December 2010, pursuant to the December 2010 Board Remand, the RO provided the Veteran pre-adjudication notice regarding the claim for TDIU, which was adjudicated in a July 2012 supplemental statement of the case. This notification complied with the VCAA notice requirements of identifying the evidence necessary to substantiate a claim for TDIU, and the relative duties of VA and the claimant to obtain evidence. See Hurd v. West, 13 Vet. App. 449 (2000) (Court recognized that a TDIU claim was a form of increased rating claim by applying increased rating effective date regulatory provisions to a TDIU claim); see also Stegall, 11 Vet. App. at 268. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issue adjudicated herein. Specifically, the information and evidence that has been associated with the claims file includes service treatment records (STRs), identified VA and private treatment records, and the Veteran's statements, to include his testimony during the October 2010 Board hearing. The Veteran has not indicated he is in receipt of disability benefits from the Social Security Administration (SSA). The RO arranged for VA examinations in December 2006 and June 2009 to assess the severity of the service-connected disabilities. These examinations, taken together, are found to be adequate for rating purposes of the issue decided in this decision. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity and effects of the Veteran's service-connected disabilities and also on the effect of his disabilities on the ability to work. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran has not alleged that the examinations are inadequate to decide the current TDIU claim, so they are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. TDIU Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. 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. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. 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 a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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 may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2012). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. TDIU Analysis In this case, the Veteran contends that he is unemployable due to his service-connected disabilities prior to January 6, 2011. Specifically, he has stated that his service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation during this appeal period. He has not asserted that his service-connected hearing loss, which is noncompensable, or service-connected tinnitus rendered him unemployable. The record reflects that the Veteran is currently unemployed; however, it is unclear as to the exact date the Veteran stopped working as he was self-employed and has asserted multiple dates of when he could no longer be employed. Regardless, the evidence demonstrates that the Veteran had only marginal employment at least since December 2006 (See Veteran's report during the December 2006 VA psychiatric examination that he only worked part-time.). In this case, service connection has been established for PTSD, rated at 50 percent disabling; tinnitus, rated at 10 percent disabling; and bilateral hearing loss, rated as noncompensable. The Veteran has a combined disability evaluation of 60 percent prior to January 6, 2011. Thus, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are not met because the Veteran does not have one service-connected disability with an evaluation of at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent; however, a TDIU evaluation can still be awarded on an extraschedular basis if it is established by the evidence of record that service-connected disabilities have rendered the Veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of Compensation and Pension for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). After a review of all the evidence, the Board concludes that the weight of the evidence demonstrates that a TDIU is not warranted for the period on appeal, in that the weight of the evidence is against a finding that the Veteran is unable to secure (obtain) or follow (maintain) substantially gainful employment due to his service-connected disabilities. The evidence weighing against the claim for a TDIU is a December 2006 VA psychiatric examination, which resulted in the opinion that the Veteran was employable from a psychiatric standpoint and explained that the Veteran would do best in settings in which he has little contact with the public and very loose supervision, secondary to his high baseline anxiety (for which he is not service connected) and difficulties with temper due to PTSD. At that examination, the Veteran reported that he was self-employed as a carpenter since 1985, that he currently worked part-time, and he recently suffered a knee injury and had a surgery pending; however, he did not indicate whether the reason he as working part time was because of the pending knee surgery or because of the inability to work due to a service-connected disability. His thought processes and communication were slightly impaired by his subjective report and complained of difficulty with focusing, which worsened in the afternoon. The examiner assigned the Veteran a Global Assessment of Functioning (GAF) score of 58. In this regard, within the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "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). Important to this case, 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). 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). 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). DSM-IV at 46-47. During the December 2006 VA examination, the Veteran's psychiatric impairment, indicated by a GAF score of 58, reflected more moderate symptoms with moderate difficulty in occupational functioning. Indeed, the Veteran underwent numerous VA psychiatric evaluations in July 2006, January 2008, July 2008, February 2009, March 2009, and August 2009. At those times, the GAF scores were 55, 60, 58, 55, 55, and 55, respectively. Over this three-year span, the Veteran consistently demonstrated not more than moderate severity of his psychiatric conditions, which resulted in no more than moderate difficulty in occupational functioning, and not result in total occupational impairment. In June 2009, the Veteran underwent another VA psychiatric examination, at which he reported that he was currently employed as a carpenter, that work was slow, and that he had more difficulty with irritability with customers and co-workers, difficulty with forgetfulness, distractibility, and feelings of preoccupation. He reported that he only worked 12-15 days in a month; however, the Veteran did not indicate whether this was due to a lack of work (as he mentioned that work was slow) or because of his PTSD. As to employability, the VA examiner noted that the Veteran had difficulty sustaining work activity; however, the VA examiner also ultimately concluded that the Veteran had reduced reliability and productivity due to PTSD signs and symptoms and did not indicate that he had total occupational impairment. The examiner assigned a GAF score of 53, reflecting no more than moderate difficulty in occupational functioning due to moderate symptomatology. The evidence in favor of the Veteran's claim for TDIU includes the Veteran's multiple statements asserting his belief that he is unemployable due to his service-connected disabilities, specifically PTSD. The Veteran contends that he often walked off the job because of his irritability towards customers and co-workers. He also asserted that while he had never been fired, he reported that he has frequently not been re-hired. The Veteran also indicated that he was afraid of being hurt on the job (as a carpenter) due to the difficulty with forgetfulness, distractibility, and feelings of preoccupation. In this regard, however, the Veteran may have demonstrated difficulty in obtaining and maintaining employment in one particular field (carpentry), but not to all reasonably available sources of employment under the circumstances. See Ferraro, 1 Vet. App. at 331-332. Indeed, the record reflects that the Veteran is a high school graduate, which would not necessarily limit him to carpentry employment. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A private, treating psychologist, Dr. S.B., submitted a letter in October 2010. At that time, she noted that the Veteran's PTSD manifested in difficulty focusing intellectually and could not work safely in construction or with machinery or in crowds. Significantly, however, Dr. S.B. also indicated that the Veteran had severe, major depression with functional impairment and severe anxiety with functional impairment (both of which are not service connected). His service-connected PTSD was scored at a moderate to high level. DR. S.B. concluded that the Veteran was severely and pervasively disabled; however, she also noted that the Veteran has a strong work ethic and aspects of his psychiatric condition may ultimately respond to appropriate treatment. Here, while Dr. S.B. assigned a GAF score of 40, reflecting major impairment including the inability to work, it is also clear from the report that the Veteran's non-service-connected major depression and anxiety were designated as severe, whereas the service-connected PTSD was more moderate to high. As such, the Board cannot find that the PTSD, alone, and without consideration of the affect of non-service-connected disabilities, is of sufficient severity to produce unemployability. See Hatlestad, 5 Vet. App. at 529. The weight of lay and medical evidence shows that the Veteran's service-connected disabilities, particularly PTSD, have not rendered him unable to obtain (secure) or maintain (follow) substantially gainful employment. Notably, no clinician has stated that the Veteran is unemployable due to his service-connected disabilities, to include PTSD, prior to January 6, 2011. The Board has weighed and considered the Veteran's statements that his service-connected disabilities, specifically the service-connected PTSD, have rendered him unable to work prior to January 6, 2011. These statements, while competent, are not credible, and are outweighed by the more specific findings and assessments by various examiners as they reflected on the question of unemployability. For these reasons, although the Veteran was not employed during the appeal period prior to January 6, 2011, the Board finds that the weight of the credible evidence demonstrates that the criteria for a TDIU, including consideration under the provisions of 38 C.F.R. § 4.16(b), have not been met or more nearly approximated. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER A TDIU is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs