Citation Nr: 1318082 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 11-32 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from November 1951 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Milwaukee, Wisconsin. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that the evidence contains VA outpatient treatment records dated through February 2013. While the Veteran's paper claims file only contains VA outpatient treatment records dated through September 2011, the Virtual VA records were considered by the RO and the Veteran was provided with a Supplemental Statement of the Case in February 2013. The Board has reviewed the treatment records contained in both the Virtual VA and paper claims files. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection has been established for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; bilateral hearing loss, rated as 30 percent disabling; and tinnitus, rated as 10 percent disabling. The combined disability rating is 70 percent. 2. The Veteran's service-connected disabilities are not shown to be of such severity as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.1-4.14, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Generally, the notice requirements of the VCAA apply to all five elements of a claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned when service connection is awarded. Id. at 486. By letter dated in April 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above-mentioned notice letter and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of his service-connected disabilities, and the effect that the worsening has on his employment and daily life. The Veteran was informed of the criteria required for the establishment of a TDIU. The VCAA also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. Efforts to obtain records from the Social Security Administration were unsuccessful as the Social Security Administration informed the RO that the medical records used in awarding the Veteran disability benefits were no longer available. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has also been examined. In sum, the Board finds that the duty-to-assist and duty-to-notify provisions of the VCAA have been fulfilled and no further action is necessary under the VCAA. TDIU Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2012). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a); 4.19 (2012). Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2012). 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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States 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 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, citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), noted the following standard: 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 Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. To receive a TDIU, the Veteran's service-connected disabilities alone must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, the Veteran filed his claim for a TDIU in March 2010. He has been assigned a 50 percent disability rating for PTSD, a 30 percent disability rating for bilateral hearing loss, and a 10 percent disability rating for tinnitus, for a combined disability rating of 70 percent. As the Veteran has at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined disability rating to 70 percent, he meets the percentage criteria set forth in 38 C.F.R. § 4.16(a). The remaining question before the Board, therefore, is whether the Veteran is unemployable by reason of his service-connected disabilities alone, taking into consideration his educational and occupational background, such that a TDIU rating may be assigned. A VA PTSD examination report dated in January 2009 shows that the Veteran reported that he retired in approximately 1999. He had worked in construction and as a truck driver. He added that as a result of being a Teamsters Union member, he received a pension related to his truck driving activities. Following examination, the diagnosis was mild chronic PTSD. A Global Assessment of Functioning (GAF) score of 62 was assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.125 (2012). A GAF of 61 to 70 is defined as 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, has some meaningful interpersonal relationships. A VA audiological examination report, dated in January 2009, shows that the Veteran reported that he could hear people talking, but not understand what they were saying, particularly with background noise. Following examination, the diagnoses were asymmetric sensorineural hearing loss, right worse than left, and subjective tinnitus. The examiner opined that the diagnoses had no significant effects on occupation or usual daily activities. VA outpatient treatment records dated from March 2009 to February 2012 show that the Veteran reported intermittently for hearing aid evaluations and for ear wax removal. He was shown to seem pleased with the fit and sound quality of the hearing aids. A VA audiological examination report, dated in June 2010, shows that the Veteran reported that if there is background noise, he could not hear at all. Following examination, the diagnoses were moderately severe to profound sensorineural hearing loss of the right ear, moderate to profound sensorineural hearing loss of the left ear, and subjective tinnitus. The examiner opined that the diagnoses had no significant effects on occupation or usual daily activities. A VA PTSD examination report, dated in July 2010, shows that the Veteran reported that he retired from being a truck driver in 1992 as he had been eligible by age or duration of work. Following examination, the diagnosis was mild chronic PTSD, with associated continuous alcohol abuse. A GAF score of 62 was assigned, which was indicative of some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. The examiner added that alcohol abuse did not interfere with vocational or social functioning, and that there was no total occupational and social impairment due to PTSD signs and symptoms. The examiner also indicated that the impact of the Veteran's symptoms on his social and vocational functioning appeared to be minimal. There was some degree of loss of quality of life due to painful memories and emotions that would come back very readily. The examiner concluded that the Veteran was not unemployable due to his service-connected PTSD. While he was said to have consistent and persistent symptoms of PTSD, he barely met the minimum criteria for a diagnosis of PTSD, and was not unemployable due to his PTSD. The examiner explained that he was able to function for many years on the job; and that he always stayed busy to avoid thinking about his in-service stressor, but job functioning was adequate. He was said to function at the same level as during his previous evaluation. In his August 2010 notice of disagreement, the Veteran indicated that he had attended a VA vocational rehabilitation program in Eau Claire, Wisconsin, in March 2010, but that the counselor told him there was no reason to come back for retraining for gainful employment. The Veteran requested that his vocational rehabilitation records be obtained. In his November 2011 appeal (VA Form 9), the Veteran added that he elected to not partake in the VA vocational rehabilitation program because he felt it would be a waste of time and resources to have VA retrain him. He added that he felt it hard to believe that the vocational training program could find an employer that would be willing to hire a person of his age at wages that would be considered gainful. A deferred rating decision dated in September 2011 shows that the RO obtained and reviewed the Veteran's vocational rehabilitation folder. The November 2011 Statement of the Case shows that a review of the Veteran's vocational rehabilitation folder confirmed his statements that he declined to participate in testing, that he did not feel that he could return to work, and that he decided not to pursue vocational rehabilitation services. While the Veteran's VA vocational rehabilitation folder is not currently associated with the claims file, the Board is satisfied that the Veteran's statements have been corroborated by the RO, and that further development in an effort to obtain the folder would not further aid in substantiating the claim. After a review of the record, the Board finds that the competent medical evidence of record does not demonstrate that functional limitations imposed by the Veteran's service-connected PTSD, hearing loss, and tinnitus preclude his performance of substantially gainful employment. The evidence of record shows that the Veteran was capable of engaging in substantially gainful employment for many years before his retirement. Moreover, each of the aforestated VA examination reports help establish that the Veteran's service-connected disabilities have not resulted in significant occupational impairment. His bilateral hearing loss and tinnitus were said to have no significant effects on occupation; and his PTSD was said to have a minimal impact on social and vocational functioning. The Board finds the assessments of the VA medical professionals to be probative as they were definitive, based upon a complete review of the Veteran's entire claims file, and supported by rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to contradict the opinions against the claim or otherwise diminish their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). While the Board understands the Veteran's concern about securing gainful employment at his age, as indicated above, consideration may not be given to age or impairment from disabilities that are not service connected. See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2012). Moreover, there is no indication by competent authority that the Veteran is unable to maintain substantially gainful employment due to the severity of his service-connected disabilities alone. The Board acknowledges that the Veteran has difficulty with his service-connected PTSD, hearing loss, and tinnitus, but such difficulties are accounted for in the current 70 percent combined disability rating. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While his service-connected disabilities may cause some economic inadaptability, this also is taken into account in the assigned disability ratings. In this case, there is no showing of total individual unemployability based solely on the service-connected disabilities. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are disabling. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for a TDIU, VA must consider the factors as enumerated in the regulation discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Based upon the foregoing, the Board concludes that the preponderance of the evidence is against the claim. The evidence does not demonstrate that the Veteran's service-connected disabilities alone, when considered in association with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation. Although he has not been employed for many years, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability. ORDER Entitlement to a TDIU is denied. ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs