Citation Nr: 1319063 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-50 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to July 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri, that denied the benefit sought on appeal. The June 2009 rating decision also continued the existing evaluations of the Veteran's disabilities. However, he specifically limited his appeal to his employability. Hence, the assigned ratings of the Veteran's disabilities are not before the Board and will not be addressed, except by reference, in the decision below. The Board notes the RO has taken cognizance of the Veteran's claim of entitlement to service connection for prostate cancer residuals, status post-operative. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has reviewed the contents of the Virtual file, and the documents therein were reviewed and considered by the RO, as noted in the March 2013 Supplemental Statement of the Case. Hence, they may be considered without the necessity to seek a waiver from the Veteran or remand for RO consideration. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. Service connection is currently in effect for posttraumatic stress disorder (PTSD), post-operative residuals of inguinal hernia, bilateral hearing loss, and tinnitus. The Veteran's total combined rating is 70 percent. 2. The preponderance of the evidence of record shows the Veteran is not unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The requirements for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) Duty to Notify As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1) ; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, prior to issuance of the rating decision on appeal, the Veteran was sent a letter in January 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing a claim. The January 2009 letter also provided notice as to how VA assigns an appropriate disability rating or effective date, to include the rating criteria for the Veteran's disabilities. See generally Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, 580 F.3d 1270 (Fed. Cir. 2009). Accordingly, the Board finds VA complied with the VCAA notice requirements. Duty to Assist VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All reasonably identified and available VA medical records were obtained. The RO inquired of the Social Security Administration for any records related to the Veteran, and that agency provided a negative reply in March 2009. Neither the Veteran nor his representative asserts that there are additional records to be obtained. As part of the RO's assistance to the Veteran, an examination was conducted in May 2009. The Board notes that, as part of his disagreement with the denial of his claim, the Veteran requested another examination. The Board notes further, however, that he did not assert that either of his disabilities had increased in severity; and, the VA treatment records in the claims file do not reflect findings that indicate an increase in severity. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Hence, the Board finds the threshold for another examination was not triggered. In light of the above, the Board finds all necessary development has been accomplished and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, 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. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. The Board has reviewed all the evidence in the Veteran's Virtual and paper claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable Law and Regulations A TDIU may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent, when it is found that the service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Unemployability associated with advancing age or intercurrent non-service-connected disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19. Factors to be considered are the Veteran's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability shall be ratable at 60 percent or more; 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. The sole fact that a veteran is unemployed for non-service-connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can, in fact, find employment. See 38 C.F.R. §§ 4.1, 4.15. When evaluating a claim for a TDIU, 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). As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In discussing the unemployability criteria, the Court Of Appeals For Veterans Claims (Court) has indicated that, in essence, the unemployability question, that is, the Veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of a claimant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). Marginal employment shall not be considered substantially gainful employment, and generally shall be 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, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342 (2000). The VA General Counsel has concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also determined that "Unemployability" is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). In determining whether a veteran is entitled to individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. at 361. Thus, in deciding the claim, the Board may not favorably consider the effects of the Veteran's nonservice-connected disabilities with respect to their degree of interference with the Veteran's employability. Indeed, the Court stated that in order for a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor that takes his case outside of the norm. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). Analysis The Veteran is currently service connected for the following disabilities: PTSD, rated at 70 percent disabling; post-operative inguinal hernia, and bilateral hearing loss, both rated noncompensable; and, tinnitus, rated at 10 percent disabling. Hence, the Veteran's total combined rating is 70 percent. See 38 C.F.R. § 4.25, Table I. The Veteran meets the minimum total rating for multiple disabilities under the schedular criteria. 38 C.F.R. § 4.16. In his January 2008 informal claim, VA Form 21-4138, the Veteran asserted he was no longer able to work because he was unable to deal with the stress of working with or dealing with other people. He also reported that he then currently earned about $1,166.00 per month working as a truck driver for approximately five hours a week. He asserted further that his employer allowed him to take several weeks off at a time, and he was scheduled to drive only when he felt up to making a run. He had to take off a couple of days, or a week, after a run due to the stress of dealing with other motorists and people. His subsequent written submissions assert essentially that he is entitled to a TDIU solely because he is rated at 70 percent. As set forth in the earlier discussion of the legal requirements, it is not a particular rating-even a high rating, that decides the issue, but the level of occupational impairment. The Veteran's formal claim, VA Form 21-8940, reflects he last worked in December 2008. It also reflects the Veteran is a high school graduate, and he completed two years of college. The May 2009 digestive examination report reflects the examiner conducted a review of the claims file as part of the examination. The Veteran underwent surgery for left inguinal hernia repair in 1967, and the Veteran reported it as stable since. He denied having received any current treatment. Physical examination revealed no hernia or other significant findings. The examiner noted the Veteran reported he was unemployed due to low back pain. The examiner noted further that the Veteran's hernia residuals did not impact his activities of daily living. The May PTSD examination report reflects the examiner conducted a review of the claims file as part of the examination. The Veteran reported current problems with sadness, poor concentration, intrusive thoughts, excessive anger and irritation, sleep disturbance, nightmares, worries, and an inability to relax. He reported further that treatment and group therapy had been of some help with his symptoms, as they helped him to learn to cope. The Veteran reported chronic back pain, which weather aggravated. He reported he was sad about 30 percent of the time, and he tried to distract himself by seeing a friend or going on drives. The Veteran noted he had difficulty falling asleep and, once asleep, he slept from two to six hours. He frequently had intrusive thoughts via recalling the smell of dead bodies, and walking on wet ground reminded him of the sound of walking in Vietnam. The Veteran reported he was irritable, and he angered easily; people did not like what he says because he has a "drill sergeant" voice. He explained that he was careful not to alienate people, and he had problems concentrating all the time. The Veteran reported he was on his second marriage, which has lasted 36 years. He reported irritability between he and his wife due to his wife's physical problems but no serious problems. The Veteran had quit his job about two months prior to the examination because of problems with his back and legs. He reported his current medication as Sertraline, Gabapentin, and Salsalate. Although he had been in group therapy in the past, he was not currently in therapy at the time of the examination. The examiner noted the examiner at the Veteran's last Compensation and Pension examination in January 2003 assigned Axis V, Global Assessment of Functioning (GAF) as 45. In addition to his wife, the Veteran reported his two adult sons lived with him. He reported he occupied himself with yard work and watching television. He meets with friends every morning for coffee, and he goes driving with others. The only thing that inhibits his driving is occasional leg numbness. The Veteran presented for the examination alone. Mental status examination revealed the Veteran as dressed casually, and he demonstrated appropriate grooming and hygiene. His speech was clear with a good ability to express himself. Affect was nervous, and his overall mood seemed anxious. Orientation was appropriate, and thinking was logical but circumstantial and off track. Thought content was notable for preoccupation with events that occurred in Vietnam and with death issues. Relationships with others seemed good, with a high frequency of contact and a preference for contact rather than being alone. Self-esteem was intact. Concentration was poor, with the Veteran easily off track and rambling. The Veteran's reasoning skills demonstrated the capacity for abstract thinking, with an estimated intellectual functioning in the average range. Judgment was sometimes diminished by anger. The Veteran was aware of his problems, and he obtained medication for them. He was open and cooperative with the examiner and maintained good eye contact. The examiner noted the intensity of the Veteran's symptoms was moderate with impaired social relationships, judgment, and mood. The examiner noted further that the Veteran appeared to have occasional decrease in his work efficiency and social adjustment due to depressed mood, anxiety, chronic sleep impairment, and impaired judgment. The examiner assigned GAF 53 due to anger outbursts. As noted earlier, the Veteran does not dispute the level of his current ratings. The Board nonetheless notes that, a 70 percent rating for PTSD applies when a veteran's occupational and social impairment reflects deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. Although the Veteran is currently rated at 70 percent disabling, the examiner noted the Veteran's symptoms resulted in only occasional decrease in work efficiency. A March 2009 letter from the Veteran's former employer notes only that the Veteran would not be employed further because his availability was not consistent, and he was unable to perform the required duties. No specific reason was stated. Further, while the Veteran claimed entitlement to individual unemployability due to the stress of dealing with people, he twice candidly reported to VA examiners that he stopped working due to back pain and leg problems, both of which are unrelated to his service-connected disabilities. The Veteran's VA outpatient records reflect that he started group therapy and individual counseling in January 2010. The therapy entries note the consistent absence of suicide or homicide ideation, and that the Veteran maintained contact and interaction with friends. The main stressors in the Veteran's life were related to his sons residing in his home. The Veteran and his wife had conflicting views on the situation. In any event, a June 2010 entry notes the Veteran was irritated over having been turned down for a Small Business Administration loan. He reported he wanted to use the loan proceeds to get back into trucking with his son, if he could get his son licensed. Entries dated in December 2011 note the Veteran was working again and enjoying it. His truck was totaled in a motor vehicle accident in September 2012, but there is no indication the Veteran was injured. The Veteran was again working as a trucker is clear evidence that his service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. In light of the above, the Board is constrained to find the preponderance of the evidence shows the Veteran is not unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. 38 C.F.R. § 4.16. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to a TDIU is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs