Citation Nr: 1316201 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 06-25 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU), prior to June 1, 2009. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1961 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This issue was previously before the Board in April 2010 and March 2012 and remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the issue of entitlement to service connection for a psychiatric disorder, inclusive of posttraumatic stress disorder (PTSD), was also remanded in the March 2012 remand. In a February 2013 rating decision, the VA Appeals Management Center (AMC) granted entitlement to service connection for PTSD, to include depression, with an evaluation of 50 percent effective July 11, 2007. The AMC also granted entitlement to a TDIU effective June 23, 2009. As the issue of entitlement to service connection for a psychiatric disorder was granted in full, it is no longer before the Board. In February 2013, the appellant submitted a March 2013 private examination report from the Oklahoma Sports and Orthopedics Institute. In the report, the physician found that the appellant had radiculopathy of the left and right extremities "which is certainly related to his degenerative disc disease." The physician opined that it is as likely as not that the pain in his hips and the radiculopathy and numbness in his legs is from the in-service back injury. The issue of entitlement to service connection for radiculopathy of the lower extremities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to July 11, 2007, the appellant's service-connected disabilities did not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. 2. From July 11, 2007, the appellant's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSIONS OF LAW 1. Prior to July 11, 2007, the criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. 2. From July 11, 2007, the criteria for entitlement to a TDIU are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. 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 appellant 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 appellant). 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 claimant. 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, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim for entitlement to a TDIU, prior to June 23, 2009. Appropriate notice was provided in July 2005 and March 2008, including notice of how VA determines the effective date. The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in August 2005, May 2006, March 2008, June 2012, and February 2013. The examinations are adequate because they are based on thorough examinations, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As the appellant has been granted entitlement to a TDIU from June 23, 2009, another VA examination would not be pertinent to the relevant period on appeal. The VA examination reports are thorough and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). III. Legal Criteria In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a total rating for an award of a TDIU when, due to service-connected disabilities, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(2012). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b)(2012). The grant of TDIU is generally an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Court and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). III. Analysis The appellant filed the claim for TDIU on May 31, 2005. At the time of his claim, the appellant was service-connected for: chronic headaches, associated with scar on occipital scalp, rated as 50 percent disabling; degenerative joint disease, thoracolumbar spine, rated as 20 percent disabling; a right thumb disability, rated as 20 percent disabling; degenerative joint disease of the right shoulder, rated as 10 percent disabling; a scar of the occiptal scalp; rated as noncompensable, and a right shoulder abrasion, rated as 10 percent from May 31, 2005, and as noncompensable from March 1, 2009. The appellant is service-connected for PTSD, to include depression, effective July 11, 2007, with a rating of 50 percent. The appellant had a combined ratings of 70 percent from January 6, 2005, of 90 percent from July 11, 2007, and of 80 percent from March 1, 2009. As noted above, the appellant was granted TDIU from June 23, 2009. As the appellant's chronic headaches were rated as more than 40 percent disabling and the appellant had a combined rating of 70 percent from January 6, 2005, the appellant met the schedular criteria for a TDIU from January 6, 2005. In his May 2005 claim, the appellant stated that he last worked as a dispatcher at a Pipefitter's Union. He indicated that he had completed high school. In a July 2005 request for employment information, the appellant indicated that he stopped working because he retired and was receiving retirement benefits. A copy of the form, receiving in July 2005 indicates the appellant was retired and could not go back to work in the field. An August 2005 VA examination report reflects that the appellant had suffered from a laceration to the skull. He also had current symptoms of headaches and dizziness. "The VA examiner noted that there was no functional impairment resulting from the above condition. The condition did not result in any time lost from work." A December 2005 private examination report, Dr. J.W.E. noted that the appellant was a high school graduate. His occupation and work history included that of being a pipe welder. He had also worked as a business agent for the Plumbers and Pipefitters Union. The appellant's right shoulder, right thumb, low back and headaches were evaluated at a VA examination in May 2006. The appellant reported that his usual occupation was in construction, but for the last 6 years he had worked in an office and stated that there was no problems with his shoulder while he worked in the office. However, his contract was ending and this would require him to go back to the field where he worked construction as a welder. Because of this he knew that he would not be able to work with his right shoulder, so he quit that job. The appellant had 40 acres that he farmed and he had to bale hay, feed calves, and do a lot of lifting and pulling which caused increased pain in the shoulder. The appellant walked unaided, but he reported that he used a cane at times when he had a flare up. He stated that his activities of daily living were not interfered with unless he had a flare up, he was very limited in his ability to bend, stoop, or stand for longer periods of time so he was limited in his showering, grooming, toileting and dressing during flare-ups. He reported that with his usual occupation, as a construction worker, his back pain caused him to have increased problems. He stated that this was the other reason he quit his job. Recreationally, he enjoyed fishing and hunting, and stated that he could not walk for the distances that he would like because of the low-back pain. He stated that he could sit in 1 spot for too long. He stated that even when watching a movie on TV he must get up and walk around frequently. He also reported that he had to stop at least every hour when driving. On examination, the appellant had a normal gait and posture. His scalp scar was stable and the texture was normal. It was not disfiguring. The appellant had degenerative joint disease of the lumbar spine with limitation of motion due to pain during flare-ups. He also had degenerative joint disease of the right thumb, with no flare-ups and no change in function with repetition. He had degenerative joint disease of the right shoulder with flare-ups causing additional limitation of motion due to pain. He also had headaches and the scar that were not functionally limiting. A September 2006 VA treatment record reflects that the appellant had a negative screen for depression and PTSD. An April 2007 VA treatment record reflects that the appellant denied having headaches, changes in vision, or diplopia. In a June 2007 statement, F.W. and T.W. stated that they had worked with the appellant for thirty plus years. He frequently talked about the injuries (right thumb, right shoulder, head and back) he incurred while on active duty with the U.S. Army. They stated that they had seen the symptoms from these injuries worsen over the years until he was no longer able to work in the field as a pipe-welder/pipe-fitter. They stated that the appellant had been depressed and withdrawn from his inability to work and make a living at his trade. F.W. and T.W. are competent to report symptoms capable of lay observation and the Board finds them credible in this regard, as their statements are consistent with the evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A March 2008 VA examination report reflects that the appellant had retired from his profession as a welder and pipe fitter. He reported that for the last six years before he retired, he worked as a business manager for the union. The VA examiner noted that he did not have complications or functional limitations in his usual occupation secondary to the sequela of the right shoulder abrasions. The appellant filed a claim for PTSD in July 2007. A May 2008 VA treatment record reflects that the appellant's presentation and reported history suggested diagnoses of PTSD and major depression. The appellant reported that he was hypervigilant, and had nightmares, night terrors and flashbacks. He said that he felt depressed most of the time, and had particular difficulty motivating himself. A May 2008 VA treatment record reflects that the appellant appeared moderately depressed and anxious, but was stable with PTSD symptoms in the moderate range. His PTSD appeared to significantly limit his ability to interact socially. A July 2008 VA treatment record reflects that the appellant had a GAF score of 55. The appellant did not report noticing any change or improvement of his symptoms of depression, sleep or his nightmares. He reported that his girlfriend had also not noticed an improvement. Another July 2008 VA treatment record noted that the appellant appeared anxious and depressed, but stable, with moderate PTSD symptoms. An October 2008 VA treatment record reflects that he had a GAF score of 55 and reported that he felt that he was doing much better. He had noticed improvement in his depressed mood and PTSD symptoms. In a December 2008 letter, P.B.T., LCSW, stated that in his assessment, the appellant suffered from PTSD and major depressive disorder. P.B.T. stated that he believed that these disorder had significantly impaired the appellant's ability to function vocationally, to perform appropriately in most social settings, or to sustain primary relationships. In a June 1, 2009, letter, which was received by VA on June 23, 2009, P.B.T. stated that the appellant had been his client for a year. His symptoms appeared to have severely limited his ability to function socially. As a result, he isolated himself from others in an effort to minimize his social anxiety. P.B.T. stated that the symptoms appeared to have become progressively worse over the years, and, in his opinion, prevented the appellant from gainful employment. A June 2012 VA psychological examination report reflects that the appellant's PTSD and depression likely impacted the appellant's ability to work. However, the VA examiner opined that the PTSD was likely the primary diagnosis and accounted for most of his symptoms. Although he was retired, the appellant reported that he would have liked to continue to work past 2004, but retired early due to difficulty coping with emotional issues. The VA examiner found the appellant's PTSD caused difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and an inability to establish and maintain effective relationships. In a June 2012 VA examination of the appellant's degenerative joint disease of the right shoulder, lumbar spine and right thumb, the VA examiner noted that the appellant was retired since 2004. He worked heavy construction as a pipe fitter, but for the last four years of his occupation he took a desk job as a dispatcher and was an officer in the union. He stated that his job as a dispatcher was not physically demanding and he had no physical functional limitations. He stated his job as a pipe fitter was limited by his back, shoulder and hand condition because of pain and limitations with bending, lifting, reaching, pulling and gripping. The VA examiner noted the appellant would have limitations in lifting, pushing, carrying more than twenty-five pounds and using hand tools due to his service-connected spine, right shoulder and thumb disabilities. The appellant was afforded a VA psychological examination in February 2013. At the examination, the appellant reported that he worked in a variety of places until getting a job as a union dispatcher from 1998 to 2004. He stated that he could have stayed in the job, but felt it was too stressful and took an early retirement in 2004 due to feeling very stressed at work. The VA examiner found that the appellant's PTSD caused difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and an inability to establish and maintain effective relationships. Additional February 2013 VA examination reports indicated the appellant's service-connected disabilities had an impact on his ability to work. The February 2013 VA examiner stated that the appellant's degenerative joint disease of the thoracolumbar spine would limit the appellant in heavy or unassisted lifting of more than 25 pounds, repetitive rotation of the back, carrying, pushing, or pulling heavy objects, vibrational stresses, overhead work, and prolonged sitting. He would be limited in walking or standing to no more than 1 hour without the opportunity to rest. The VA examiner noted that the appellant was also restricted to limited use of the right hand, his dominant hand, due to his service-connected right thumb disability. The appellant's right shoulder disability limited the appellant in those occupational activities that would require reaching and arm use above shoulder level. His sedentary employment would require use of modifications such as use of headrests to answer telephones and forearm rests for use of computer keyboards. The appellant reported that he had headaches about 15 times a month that lasted around an hour. He stated that the headaches had progressively gotten worse over the years. The VA examiner found that the appellant would be unable to work or perform job responsibilities during a prostrating headache episode. Heavy physical activity may also be limited. Special accommodations to provide a dark, quiet room where he could rest until the attack passed could be helpful. The VA examiner found the appellant's scars did not impact his ability to work. In an April 2012 letter, the appellant's live-in partner, S.L. stated that she had known the appellant for twenty-five years and had been his live in partner for the past eight years. She stated that the appellant retired early in 2004 because of health problems that incurred while on active duty. He was unable to continue working because of the high stress environment. He had been unable to sustain healthy relationships. He was estranged from his children and unable to see his grandchildren. S.L. stated that she was a retired nurse. S.L. is competent to report the appellant's symptoms and the Board finds her statement credible. In the February 2013 rating decision, the Appeals Management Center (AMC) granted entitlement to TDIU effective June 23, 2009, based on the June 1, 2009 letter from P.B.T., which indicated that the appellant had symptoms consistent with the February 2012 VA examination report. As noted above, the appellant has met the schedular criteria for a TDIU since the date of his claim in May 2005. The appellant is service-connected for PTSD effective July 11, 2007. In the December 2008 letter, P.B.T. stated that the appellant's PTSD and major depressive disorder had significantly impaired the appellant's ability to function vocationally, to perform appropriately in most social setting, or to sustain primary relationships. In the June 2009 letter, P.B.T. stated that the appellant's PTSD and major depressive disorder symptoms prevented the appellant from gainful employment. The evidence of record reflects that the appellant's PTSD and major depressive disorder symptoms remained consistent during the period on appeal. The appellant's VA treatment records consistently reflected that he had a GAF score of 55 and moderate symptoms of PTSD. Based on the December 2008 and June 2009 letters, as well as the other evidence of record, the Board finds that the appellant is entitled to a TDIU from July 11, 2007, the effective date of service connection for PTSD with depression. However the Board finds that the appellant is not entitled to a TDIU prior to July 11, 2007. Prior to the date, the appellant was service-connected for chronic headaches, rated as 50 percent disabling, degenerative joint disease of the thoracolumbar spine, rated as 20 percent disabling, a right thumb disability, rated as 10 percent disabling, degenerative joint disease of the right shoulder rated as 10 percent disabling, a scar on the occipital scalp, rated as noncompensable, and a right shoulder abrasion, rated as 10 percent at that time. The appellant had combined rating of 70 percent from January 6, 2005. The Board finds that the evidence of record does not reflect that the appellant's service-connected disabilities prior to July 11, 2007. Although there is evidence of record indicating that the appellant's service-connected disabilities other than PTSD had an impact on his ability to work, his final job was a sedentary position as a business manager. The June 2012 and February 2012 VA examination reports indicate the appellant could work in a sedentary position, with limitations, based on his non-psychological service-connected disabilities. The appellant's highest rated disability prior to July 11, 2007, was his service-connected headaches. However, the August 2005 VA examination report indicates the appellant had no functional impairment resulting from the laceration to the skull and headaches. The condition did not result in any time lost from work. The April 2007 VA treatment record indicates the appellant denied having headaches. At the May 2006 VA examination, the appellant reported that for the last 6 years he had worked in an office and had no problems with his shoulder while he worked in the office. He stated that his contract was ending and he would be required to work as a welder, which he could not do with his right shoulder. Although the appellant indicated that he would not have been able to work as a welder due to his right shoulder disability, he specifically stated that it did not affect his work in an office. Thus, the May 2006 VA examination indicates the appellant's right shoulder did not affect sedentary employment. The appellant also reported that he farmed 40 acres, which included baling hay and feeding calves. The appellant stated that his back disability had an effect on his work as a construction worker. The May 2006 VA examination report specifically noted the appellant had headaches and a scar that were not functionally limiting. The May 2008 VA examination report noted that the appellant did not have complications or functional limitations in his usual occupation secondary to the sequela of the right shoulder abrasions. Although the appellant stated that he retired because he was going to be forced to work as a welder again, he also stated that he was able to work in the office job. At the May 2006 VA examination, he reported he had no problems with his shoulder when he worked in the office. The appellant is competent to report symptoms capable of lay observation, and the Board finds the appellant's statements in regard to his symptoms to be credible. However, the appellant's statements weigh against a finding of unemployability in this case. Although the appellant indicated that he retired because he was going to be forced to work as a welder again, he also stated that he was able to work in the office job. As the appellant was able to work in the office, the evidence prior to July 11, 2007, does not support a finding that his service-connected disabilities alone were of sufficient severity to produce unemployability. When he filed the claim in May 2005, the appellant stated that he stopped working because he retired and that he could not go back to work in the field. In contrast, at the June 2012 VA examination, the appellant reported that he retired early due to difficulty coping with emotional issues. At the February 2013 VA examination, the appellant reported that he could have stayed at the job but he felt it was too stressful and took an early retirement in 2004 due to feeling very stressed at work. Thus, the appellant gave differing statements regarding the reason for his retirement. Consequently, the Board finds the appellant's statements regarding the reason for his retirement to be less than credible. Even if the appellant could not have stayed at his position in 2004 because he would have been forced to work in the field, it does not mean that he was unemployable. The evidence supports a finding that that he was able to work in a sedentary position. As discussed above, the Board finds the statements from F.W., T.W., and S.L. to be competent and credible. The Board finds that the statement from F.W. and T.W. is consistent with a finding that the appellant was unable to work as a pipe-welder/pipe-fitter, not that he was unemployable due to his service-connected disabilities. The Board has also considered S.L.'s statement that the appellant was unable to work due to the high stress environment. As the appellant was not service-connected for PTSD prior to July 11, 2007, the Board finds that the statement does not support a finding that the appellant is entitled to a TDIU prior to July 11, 2007. Based on the above, the Board finds that the preponderance of the evidence supports a finding that the appellant is entitled to a TDIU from July 11, 2007. The Board finds that the evidence is against a finding that the appellant was unemployable due solely to service-connected disabilities, prior to July 11, 2007. Instead, the evidence of record establishes that the appellant was capable of sedentary employment and experienced some pain due to nonservice-connected conditions. The appellant was not service-connected for PTSD prior to July 11, 2007. Nonservice-connected disabilities may not be considered in the determination of whether the appellant warrants TDIU. 38 C.F.R. §§ 3.341, 4.19 (2012); VanHoose v. Brown, 4 Vet. App. 361, 363 (1993). Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim for entitlement to a TDIU, prior to July 11, 2007. ORDER Entitlement to a TDIU prior to July 11, 2007, is denied. Entitlement to a TDIU from July 11, 2007, is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs