Citation Nr: 1316378 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-47 874 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1952 to May 1975. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2009 rating decision, in which the RO in Huntington, West Virginia granted service connection and assigned an initial, 50 percent rating for posttraumatic stress disorder (PTSD), effective August 20, 2009. The Veteran disagreed with the assigned disability rating and, during the course of his appeal, submitted evidence of unemployment. The RO denied entitlement to a TDIU in a December 2010 statement of the case (SOC). The Veteran timely perfected an appeal of both issues. Jurisdiction of the claims file has transferred to the RO in Winston-Salem, North Carolina. The Board notes that the claims file reflects that the Veteran was previously represented by The North Carolina Division of Veterans Affairs (NCDVA) (as reflected in an April 2001 Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In December 2011, the NCDVA revoked its power of attorney; although that letter reflects that the Veteran was notified, he has not obtained another representative, to date. As such, the Board recognizes the Veteran as now proceeding pro se in this appeal. In February 2012, the Vice Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2011). Later in February 2012, the Board denied the claim for a higher disability rating for the Veteran's PTSD, and remanded the claim for a TDIU to the RO, via the Appeals Management Center (AMC) in Washington, DC. After completing the requested development, the AMC denied the claim (as reflected in a February 2013 supplemental SOC (SSOC)) and returned the matter remaining on appeal to the Board. In the February 2012 remand, the Board the Veteran's claim for TDIU as based on impairment from PTSD, alone. However, evidence associated with the claims file since the last remand reflects his contention that impairment from other service-connected disabilities also affects his employability. See March 2013 letter from the Veteran's spouse. Accordingly, the Board has recharacterized the remaining claim for a TDIU-for which an appeal has been separately perfected-more broadly, to include based upon consideration of all service-connected disabilities (as reflected on the title page). FINDINGS OF FACT 1. The Veteran has been awarded service connection for PTSD (rated as 50 percent disabling); prostate cancer, status post brachytherapy with residuals (rated 40 percent disabling); diabetes mellitus (rated 20 percent disabling); and erectile dysfunction (rated as non-compensable). The Veteran is also in receipt of special monthly compensation for loss of a creative organ. As of August 20, 2009, the effective date of the grant of service connection for PTSD, his combined rating is 80 percent. 2. Also as of August 20, 2009, the Veteran's service-connected disabilities meet the percentage requirements for the award of a schedular TDIU, and the collective evidence on the question of whether the nature and severity of the Veteran's service-connected disabilities prevent him from obtaining and retaining substantially gainful employment is, at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU are met from August 20, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Given the favorable disposition of the claim remaining on appeal, the Board finds that all notification and development actions needed to fairly adjudicate this matter have been accomplished. II. Analysis Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). The Veteran has been awarded service connection for PTSD (rated as 50 percent disabling); prostate cancer, status post brachytherapy with residuals (rated 40 percent disabling); diabetes mellitus (rated 20 percent disabling); and erectile dysfunction (rated as non-compensable). The Veteran is also in receipt of special monthly compensation for loss of a creative organ. As of August 20, 2009, the effective date of the grant of service connection for PTSD, his combined rating is 80 percent. As indicated, the Veteran meets the minimum percentage requirements under 38 C.F.R. § 4.16(a). The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable. The central 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant 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. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. By way of background, the Board noted that, after filing his claim for PTSD in August 2009, the Veteran filed a November 2009 claim of entitlement to a TDIU. The VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) that he submitted in November 2009 indicates that he left his full-time employment as a librarian at a university in January 1995. The form reflects that the Veteran contended that he had left that job as the result of disability, specifically PTSD, and expected to receive disability retirement payments. He also indicated that he had not applied for any other jobs since that time. The Veteran noted that he had a bachelor's degree in business administration as well as training in library science. A July 2004 statement from a private physician reflects that the Veteran was diagnosed with diabetes mellitus. The statement indicates that management of his diabetes requires the use of either insulin or an oral hypoglycemic agent as well as restricted diet. In a September 2007 statement, the Veteran reported that, due to residuals of his prostate cancer treatment, he has to regularly interrupt his daily activities in order to use the bathroom, but still soils at least three to four absorbent pads each day. He also reported having to wake at least three times each night in order to use the bathroom. His wife wrote to VA at the same time and noted that the Veteran goes to the bathroom "so often," but does not always make it in time. The Veteran's prostate cancer residuals were evaluated in September 2007. The examiner noted that the Veteran experienced urinary frequency four to six times a day and three to four times a night, but was also incontinent such that he needed three to four absorbent pads each day. A September 2009 private psychiatric evaluation reflects that the Veteran was diagnosed with PTSD and treated by prescription for anxiety and sleep problems. The physician noted that the Veteran could not tolerate interactions with people he did not know, had a "significant" sleep problem, and has attention and concentration problems due to his anxiety, which was identified as a PTSD symptom. In October 2009, the Veteran was afforded a VA mental disorders examination for evaluation of his PTSD. In the report of that examination, the examiner noted mild impairment of the Veteran's immediate memory as well as concentration problems. The examiner also noted that the Veteran experienced high anxiety when driving and was unable to feel comfortable when outside his home. The Veteran informed the examiner that he left his employment as a librarian because he was unable to deal with interacting with library customers. The examiner opined that the Veteran's PTSD was likely exacerbated by his diabetes and prostate cancer residuals. An October 2009 private treatment note refers to the Veteran as "still homebound" and "groggy" in the morning. In January 2010, the private physician described him as disheveled and anxious and noted that he was "staying away" from people. The Veteran was afforded another VA mental disorders examination in March 2012. The examiner assessed the Veteran as having "occupational and social impairment with reduced reliability and productivity." The examination report reflects that the Veteran reported that he stopped working because he was so "on edge" and irritable that he could not deal with people and could not concentrate or manage multiple tasks. The examiner opined that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. During the course of the examination, the Veteran's "energy level appeared to fluctuate" such that he had "difficulty focusing on the questions" due to fatigue. The examiner noted the Veteran's report that he could drive if needed, but it caused him anxiety and he occasionally got lost because he could not remember locations. On examination, his immediate memory was mildly to moderately impaired. The examiner stated that the Veteran's symptoms-particularly, his mood, energy level, and memory- had worsened since the 2009 examination. In evaluating the effect of the Veteran's PTSD on employability, the examiner opined that PTSD symptoms, alone, would result in moderate to severe impairment. Specifically, the examiner noted that the Veteran would have difficulty forming and maintaining, or be unable to form and maintain, relationships with supervisors and other employees and that his attention and concentration problems could prevent him from completing tasks. However, the examiner opined that the Veteran "may" be able to work in an environment where he works alone or with limited social contact and completes discrete tasks, one at a time, if able to work where he could take frequent breaks or leave if his symptoms worsen or he becomes fatigued. The examiner did not discuss the effects of the Veteran's other service-connected disabilities, reasoning that it is beyond the scope of practice for a clinical psychologist." In a March 2013 letter to VA, the Veteran's wife wrote that, in addition to his PTSD symptoms, the severity of his prostate cancer residuals affected his employability. She noted that, despite the use of absorbent materials, occasionally, the Veteran soiled his clothing such that he needed to shower and change. Here, the pertinent medical evidence of records tends to supports the Veteran's lay assertions that his service-connected disabilities, acting together, preclude substantially gainful employment. Significantly, the September 2007 VA genitor-urinary examiner indicated that the Veteran experienced both urinary urgency and incontinence multiple times a day. Although the 2012 VA mental disorders examiner opined that the Veteran "may" be able to work in a very specific type of environment, he did not expressly indicate that the Veteran should be able to work, or even opine that he would, more likely than not, be able to work. Further, that examiner, and the 2009 examiner, observed that the Veteran did not do well outside of his home, experienced anxiety symptoms that would significantly interfere with, or preclude, social interaction as well as memory impairment and concentration problems that would either significantly interfere with, or preclude, task completion. The Board also notes that neither the 2009 nor 2012 examiner discussed the extent of impairment from the Veteran's physical disabilities. Further, the evidence of record plainly indicates that the effects of his prostate cancer residuals, alone-including urinary urgency and incontinence-would likely limit his ability to work outside the home. Thus, although the record includes the recent opinion suggesting that the Veteran's service-connected psychiatric disability, may not preclude all forms of substantially gainful employment, as clearly reflected in that report, the examiner's opinion is, written in speculative terms, and did not include an assessment of the collective impact of all of the Veteran's service-connected disabilities on his employability. As indicated, the examiner opined that the Veteran would maybe (italics added for emphasis) be able to work at a job that allowed him very limited or no social interaction, required completion of only discrete tasks, and would allow him to either take unscheduled breaks or to stop working completely if he felt fatigued or his symptoms worsened. Not only do these comments provide a less than definitive indication the Veteran would be able to work in such a position, but the 2012 examiner's conclusion that the Veteran could work outside his home if able to leave whenever his symptoms worsen, appears to be at odds with the observation of both examiners that his symptoms worsen when he is not at home. Here, the Board determines that a finding of unemployability appears to be supported by a review of the cumulative medical evidence of record pertaining to the severity of the Veteran's service-connected disabilities. Specifically, the evidence indicates that his service-connected disabilities: require proximity to, and frequent use of, a bathroom; render him incapable of working outside the home without increase in his symptoms that would necessitate returning to home; and affect his abilities to interact with others, to get himself to a destination without getting lost, and to complete tasks. Accordingly, the Board determines that the collective weight of the medical evidence, as well as the lay evidence of record, suggests that the Veteran is rendered unemployable due to his service-connected disabilities. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the evidence noted above, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for a TDIU are met. As regards the effective date of the award, the Board observes that the Veteran presented evidence of unemployment in connection with his appeal for a higher initial rating for PTSD. Although he did not file a formal claim for a TDIU until November 2009, and all of his service-connected have been considered, the Board points out that his assertions as to unemployment (at least, in part, due to PTSD) during the pendency of his appeal for a higher initial rating for PTSD raise a claim for TDIU as a component of the claim for a higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As such, the Board has considered his entitlement to a TDIU from the date of the filing of his claim for service connection for PTSD, August 20, 2009. ORDER A TDIU is granted from August 20, 2009, subject to the legal authority governing the payment of VA compensation ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs