Citation Nr: 1319182 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-13 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Allan T. Fenley, Attorney ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from May 1966 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board remanded the claim in January 2010 and September 2011, in part, to afford the Veteran a new examination concerning his TDIU claim. Subsequently-administered VA examinations were afforded the Veteran, and upon review of the examination reports, as discussed below, the requested development has been properly and adequately completed. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran is service-connected for posttraumatic stress disorder, rated as 70 percent disabling; and right ear hearing loss, rated as noncompensably (zero percent) disabling. 2. The credible lay and medical evidence does not show that the Veteran's service-connected disabilities have prevented him from securing and obtaining substantially gainful employment for any time during the appeal period. CONCLUSION OF LAW The criteria for the assignment of a TDIU due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. § 3.159 (2012). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received notification in May 2007, prior to the unfavorable agency decision which was issued in July 2007. The RO's May 2007 notice letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the TDIU claim and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. The May 2007 letter also provided notice regarding the assignment of disability ratings and effective dates as required by Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally the letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file, as are all post-service treatment records identified by the Veteran. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded several medical examinations. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The May 2010 VA PTSD examination, and the January 2012 VA PTSD and audio examinations are adequate for the purposes of determining entitlement to TDIU, as they involved a review of the Veteran's pertinent history and a physical examination of the Veteran and provide opinions with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the United States Court of Appeals for Veterans Claims held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (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, 529 (1993). The law provides that a total disability rating 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr; Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer). As reflected in Fed. R. Evid. 701, lay witness testimony is permissible in the form of opinions or inferences when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed. R. Evid. 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. The Board observes that the Veteran is eligible to receive TDIU benefits as he is service connected for PTSD (rated 70 percent disabling) and right ear hearing loss (noncompensably rated). The disabilities result in a combined disability rating of 70 percent. 38 C.F.R. § 4.25 (2012). Considering his PTSD is 70 percent, the Veteran is eligible to receive TDIU benefits. See 38 C.F.R. § 4.16 (2012). As the Veteran meets the percentage threshold requirements, the remaining inquiry is whether he is unable to secure or follow a substantially gainful occupation as a result of such service-connected disabilities. On his April 2007 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran indicated that he became too disabled to work in 1992. Elsewhere on the application, however, he claimed to have last worked 50 hours a week in the summer of 1993. The Veteran reported completing four years of high school. The Veteran, in the course of a November 2003 VA PTSD examination, reported that he applied for unemployability "because of his mother's death in January of 2003." To this, the RO denied a TDIU claim in February 2004, but the Veteran did not perfect an appeal to this decision. In addition to his employment history set out as part of his VA Form 21-8940, discussed above, the Veteran also essentially asserts - though no specific argument has been proffered by the Veteran or his attorney -- that his service-connected disabilities render him unable to secure gainful employment. The Veteran was afforded a VA PTSD examination in June 2007. The Veteran was noted to be currently working on his cattle ranch, where he "actively" worked every day. Later in the examination report, however, the Veteran informed the examiner that there was not much to do around the ranch and that he just did a few chores. He added he planned to retire in five years. The examiner provided diagnoses of PTSD and depressive disorder, and a Global Assessment of Functioning (GAF) scale score of 50. The Veteran underwent two VA examinations in May 2010, one for his service-connected PTSD and another for his service-connected hearing loss. The PTSD examiner determined that it was less likely as not that the Veteran was unable to obtain and maintain substantially gainful employment solely as a result of his service-connected posttraumatic stress disorder. The examiner who performed the audiological VA examination indicated that the Veteran's speech reception thresholds were not consistent with puretone averages and stated that a medical opinion could not be provided regarding the implications of hearing loss on employment without reliable tests results. She recommended that the Veteran be scheduled for an additional examination. A June 2011 VA outpatient treatment record shows that PTSD with associated depression was diagnosed. A GAF score of 45 was provided. The reporting physician commented that the Veteran's mood was better and his symptoms had improved. The report of a January 2012 VA audio examination shows that bilateral hearing loss was diagnosed. The audiologist commented that the effects of the Veteran's hearing loss was "[s]ignificant," in that he would not hear warning signals from vehicles and equipment in plants. The examiner added, however, that hearing loss does not necessarily preclude an individual from maintaining employment. She added that some positions may be more difficult for the Veteran due to his hearing loss, such as a position where he was required to communicate when a large amount of background noise was present, as well in a position in which a large amount of telephone communication was required. The examiner added that some employment opportunities may be appropriate for the Veteran with the use of appropriately-fitted hearing amplification to assist him in communicating successfully in order to complete limited job requirements. She concluded by finding that the Veteran would be able to work if he could find the proper working environment where he was not in danger of missing warning signals and personal communication was not imperative. The Veteran was also afforded a VA PTSD examination in January 2012. PTSD was diagnosed. A GAF score of 45 was reported. The examiner found that it was less likely as not that the Veteran was unable to obtain or maintain substantially gainful employment solely as a result of the Veteran's service-connected PTSD and right ear hearing loss. The examiner added that although there were significant functional impairments in his nonexertional activities due to the Veteran's PTSD, they did not preclude him from obtaining or maintaining substantially gainful employment. It was added that the Veteran was expected to perform adequately in a work setting which is loosely supervised, and which required little or no social interaction. A March 2012 VA hearing aid evaluation report shows that the Veteran was pleased with the performance and quality of his hearing aids, and commented that he was surprised at the quantity of the auditory information he was receiving. The record also includes an April 2012 medical opinion, where a VA mental health examiner and an audio examiner, in conjunction, provided an opinion. It was determined that it was less likely than not that the Veteran was unable to obtain or maintain substantially gainful employment solely as a result of the combination of his service-connected PTSD and right ear hearing loss. As noted above, the Veteran's service-connected disabilities meet the schedular criteria for a TDIU rating (i.e. that a veteran must have one service-connected disability rated at 60 percent or higher or two or more service-connected disabilities, with one disability rated at 40 percent or higher, with a combined rating of 70 percent or higher) under the provisions of 38 C.F.R. § 4.16(a). Despite the Veteran's eligibility for TDIU benefits, the Board concludes that the preponderance of the evidence demonstrates that the Veteran's service-connected disabilities, disregarding his nonservice-connected disabilities or previous unemployability, do not render him unable to secure or follow a substantially gainful occupation. The Board first observes that it has reviewed the record in great detail. Based on the Veteran's conflicting statements regarding when and for what reason(s) he became unemployable, as discussed above, the Board finds that the Veteran is not a credible historian regarding his TDIU claim. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.). Concerning the medical evidence on file, the Board notes that medical records, to particularly include the above-mentioned VA medical opinions discussed above, show that the Veteran's service-connected PTSD was not found to as likely as not preclude him from performing substantially gainful employment (see examination reports dated in May 2010 and January 2012). Concerning his service-connected right ear hearing loss, an audiologist in January 2012, likewise, provided a negative opinion. Further, an April 2012 "combination" medical opinion (supplied by both a VA PTSD and audio examiner) found that it was less likely as not that the Veteran's service-connected PTSD and right ear hearing loss, when considered together, precluded him from performing substantially gainful employment. All of the above-cited opinions were accompanied by supporting rationale. Finally, there is no medical evidence of record indicating that the Veteran would be precluded from employment as a result of his service-connected disabilities either singly of together. The Board finds the record does not demonstrate that the Veteran's service-connected disabilities alone, without consideration of his nonservice-connected disabilities, are of such severity as to solely preclude his participation in all forms of substantially gainful employment. Although the Veteran's service-connected disabilities meet the schedular criteria for disability percentages for a TDIU under the provisions of 38 C.F.R. § 4.16(a), the evidence fails to show that these disabilities, disregarding his nonservice-connected disabilities, render him unemployable, the second criteria for a TDIU under 38 C.F.R. § 4.16(a). Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities under the provisions of 38 C.F.R. § 4.16(a) is not warranted. The Board is mindful of the above-cited GAF scores of 45 and 50, made by VA mental health providers. The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV)). See also 38 C.F.R. § 4.130. A GAF score is probative, as it relates directly to a veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score of 41-50 indicates serious symptoms or any serious impairment in social or occupational functioning (e.g., unable to keep a job). See DSM-IV at 44-47. In this case, while the provided GAF scores took into account all of the evidence of record, lay and objective, and assessed the one year period prior to the date assigned, none of the medical professionals who supplied the GAF scores determined that the Veteran was unable to participate in all forms of substantially gainful employment due to his PTSD. Rather, they specifically found that it was less likely than not that his PTSD would prohibit him from substantially gainful employment. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs