Citation Nr: 1319522 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 08-15 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to March 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2010, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. During the course of a pending appeal for a higher initial disability rating for posttraumatic stress disorder (PTSD), in an October 2011 decision, the Board, in pertinent part, remanded the claim of TDIU for additional development and adjudicative action. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a TDIU, when submitted during the course of an appeal of the initial rating assigned, "is part and parcel of the determination of the initial rating for that disability"). The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran is service connected for PTSD, evaluated at 50 percent disabling, effective July 6, 2006, and at 70 percent disabling, effective October 18, 2010; and myofascial pain dysfunction syndrome, bilateral temporomandibular joint (TMJ) arthralgia, at 20 percent disabling, effective March 5, 2007. The Veteran's combined evaluation for compensation is 50 percent from July 6, 2006 to March 4, 2007, 60 percent from March 5, 2007 to October 17, 2010, and 80 percent as of October 18, 2010. 3. The medical evidence of record does not demonstrate that the Veteran is unable to secure or follow substantially gainful employment solely due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA regulations allow for the assignment of a TDIU rating when a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has 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). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran is service connected for PTSD, evaluated at 50 percent disabling, effective July 6, 2006, and at 70 percent disabling, effective October 18, 2010; and myofascial pain dysfunction syndrome, bilateral TMJ arthralgia, at 20 percent disabling, effective March 5, 2007. The Veteran's combined evaluation for compensation is 50 percent from July 6, 2006 to March 4, 2007, 60 percent from March 5, 2007 to October 17, 2010, and 80 percent as of October 18, 2010. From July 6, 2006 to October 17, 2010 The Board finds the Veteran does not meet the threshold for a schedular TDIU rating under 38 C.F.R. § 4.16(a) where two or more service-connected disabilities are present from July 6, 2006 to October 17, 2010. As a result, the Board considers whether there is evidence to warrant assignment of a TDIU rating on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b), upon a showing that the Veteran is unable to secure and follow substantially gainful employment due to service-connected disabilities. The Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In order to prevail on an extra-schedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). After a full review of the record, the Board finds that the preponderance of the competent and probative evidence is against the claim for TDIU from July 6, 2006 to October 17, 2010 on an extra-schedular basis. As discussed below, the medical evidence of record does not demonstrate that the Veteran is unable to secure or follow substantially gainful employment solely due to his service-connected disabilities during this appeal period. A July 2006 VA outpatient psychosocial assessment report noted the Veteran cannot hold a job, works as a computer repairman, and is doing contract work. At the February 2008 VA examination for PTSD, the Veteran reported he has been unable to maintain any steady employment since his discharge from the military. He has held more than 10 to 12 jobs since discharge and estimated the longest time he spent at any one job had been 10 months. He reportedly starts jobs then gets burned out or supervisors start "nit-picking" at him, feels persecuted and mistreated, has been fired or left feeling burned out, and "stabbed in the back" by many of his employers or others in the workplace. For the last six months, the Veteran works as a computer help technician, feels burned out, and denied that he misses time form work due to mental health issues. However, the VA examiner concluded the Veteran reported a level of "moderate" occupational impairment over the course of many years since discharge from service with repeated perceptions of being maligned, mistreated, persecuted, treated with contempt, or discriminated against, providing evidence against this claim. Such evidence during this appeal period demonstrates the Veteran's capability of employment as a computer repairman, reports of multiple jobs since separation from service, and feelings of burned out, persecuted, and mistreated on the job. In addition, the evidentiary record does not reflect some factor that takes the case outside the norm to warrant the assignment of TDIU on an extra-schedular basis. The Board acknowledges that VA regulations provide that a case, where a veteran is unemployable by reason of service-connected disabilities and fails to meet the percentage standards under 38 C.F.R. § 4.16(a), must be submitted to the Director of Compensation and Pension Service for extra-schedular consideration. See 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008); see also Rice v. Shinseki, 22 Vet. App. 447 (2009) (Since the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the Veteran or is reasonably raised by the evidence of record.). As discussed above, while the Veteran has not met the percentage standards under 38 C.F.R. § 4.16(a) where two or more service-connected disabilities are present, the probative evidence of record does not show that the Veteran is unemployable by reason of his service-connected disabilities from July 6, 2006 to October 17, 2010. As a result, the Board finds this claim on appeal should not be submitted for extra-schedular consideration for this period on appeal. As of October 18, 2010 Next, the Board finds the Veteran meets the threshold for a schedular TDIU rating where two or more service-connected disabilities are present as of October 18, 2010, thus 38 C.F.R. § 4.16(a) applies. Although the Veteran meets the percentage standards for a TDIU rating on a schedular basis where two or more service-connected disabilities are present, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities as of October 18, 2010. On VA examination in October 2010 for PTSD, the Veteran reported he was last employed around 2008 doing tech support phone customer service and is currently not employed because of his anxiety symptoms attributable to PTSD. With regard to employment/school, the Veteran described significant frustration with the process of trying to work, getting a job, then losing jobs because of his anxiety, compounded by his need to miss work to get treatment. He reportedly felt incapable of successfully completing interviews because due to anxiety, and is not optimistic about his ability to obtain a job. The Veteran also reported he would like to be able to work, continues to pursue interviews, but is not being offered jobs, and is concerned that he will be unable to maintain employment because of his symptoms. Following the examination and review of the claims file, the examiner concluded that the Veteran's PTSD symptoms result in deficiencies in multiple areas, to include work. In this regard, it is important for the Veteran to understand that the Board fully accepts the findings above. If the Veteran did not have problems with his PTSD, there would be no basis for a compensable evaluation for his PTSD, let alone a 70 percent evaluation for PTSD, which requires this type of problem for the Veteran to be receiving the compensation he is already getting. However, while the Veteran, because of his 70 percent PTSD, may never be able to work in the "very high-stress, fast-paced job in which one is forced to deal with agitated customers and supervisors who demand a certain number of successfully completed calls per unit of time" (see below) this does not suggest that the Veteran cannot work at all. It may be that the Veteran simple may not be able to work in the type of employment he wants to work in, but is able to work in something less stressful. Simply stated, a Veteran with 80 percent disability evaluation is expected to have significant problems finding and maintaining employment, but this fact does not suggest that a Veteran cannot work in some limited stress environment (other than the jobs the Veteran routinely applies). To address this issue, pursuant to the October 2011 Board remand instructions, the Veteran was scheduled for a December 2011 VA Disability Benefits Questionnaire (DBQ) examination for PTSD. The Veteran reported his last job, as a computer technician, lasted for about two months and ended because the contract was not extended. Prior to that job, he had "little contract jobs here and there." He also complained of becoming easily "burned out" and "overwhelmed" on jobs. Following the evaluation and review of the claims file, the examiner marked the following statement best summarized the Veteran's level of impairment with regards to PTSD: occupational and social impairment with deficiencies in most areas, to include work. The examiner also opined: [T]he work the Veteran has been doing in recent years is almost exclusively technical help over the phone, which is generally a very high-stress, fast- paced job in which one is forced to deal with agitated customers and supervisors who demand a certain number of successfully completed calls per unit of time. This kind of work is likely to be very difficult for this Veteran given his functional limitations. He would be much less likely to be stressed and 'overwhelmed' in another area of his field. The Veteran was also scheduled for a December 2011 VA DBQ general medical examination. The examiner noted the Veteran has been unemployed since August 2011, and the Veteran reiterated that he is unable to work a "regular job" since separation from service in 1994 because he gets burned out quickly and has a lot of anxiety. In January 2012, the Veteran underwent a VA DBQ examination for temporomandibular joint (TMJ), in which his service-connected dental diagnoses were affirmed and no medical opinion was rendered. In July 2012, a VA DBQ general medical examination report noted review of the claims file and concluded "[t]he Veteran is service connected only for mental health (PTSD) and dental issues (bilateral TMJ dysfunction); I therefore defer to these specialists for opinions in these two areas. Since there are no other service connected disabilities, it is my medical opinion that the Veteran is capable of full employment without restrictions." As such, the same VA examiner who conducted the December 2011 VA DBQ examination for PTSD prepared a July 2012 VA DBQ medical opinion for PTSD. The examiner noted a second review of the claims file and opined "it is less likely than not the Veteran's service-connected PTSD renders him unable to find and maintain substantially gainful employment. The Remarks section of the December 27, 2011 PTSD report by this writer explains in detail the ration[ale] behind this opinion." In August 2012, a VA oral surgeon provided a VA DBQ medical opinion for oral and dental examinations. Specifically, he opined that "[i]t is not as least likely as not that this dental condition is contributing to [the Veteran's] employability." Such evidence during this appeal period demonstrates the Veteran's capability of employment as a computer technician and reiterated complaints of an inability to work due to feeling burned out and overwhelmed and anxiety from his PTSD. Significantly, VA medical opinions of record provided the Veteran is capable of full employment without restrictions, PTSD less likely renders the Veteran unable to find and maintain substantially gainful employment (in a limited stress environment), and the service-connected dental condition less likely contributes to the Veteran's employability. As discussed above, while the Veteran meets the percentage standards under 38 C.F.R. § 4.16(a) where two or more service-connected disabilities are present, the probative evidence of record does not show that the Veteran is unemployable by reason of his service-connected disabilities as of October 18, 2010. As a result, the Board finds this claim on appeal should not be submitted for extra-schedular consideration. See 38 C.F.R. § 4.16(b); Barringer, 22 Vet. App. at 242; see also Rice, 22 Vet. App. at 447. With respect to both periods on appeal, the Board takes into consideration the Veteran's credible statements regarding the nature and extent of his occupational history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, for the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim of entitlement to TDIU for both periods on appeal, and this claim must be denied. The Veteran has clearly indicated an ability and willingness to work, but perhaps needs to focus on a less stressful work environment that takes into consideration his 80 percent disability, a disability evaluation which very generally indicates an 80 percent reduction in the capacity to work, which will highly limit the Veteran's ability to function in a high stress job nearly completely, and may prevent the Veteran from working in highly technical field with highly demanding supervisors (if he could do this, there would be little basis for the current evaluation), but it does not suggest that the Veteran, who appears highly intelligent, cannot work in any job, in some capacity. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by an October 2012 supplemental statement of the case (SSOC). VA informed the Veteran of the evidence necessary to substantiate the claim for TDIU by specifying the criteria needed for that benefit. Although the notice was not issued before the July 2007 initial rating decision, the Veteran has not been prejudiced as the claim was readjudicated in a December 2012 SSOC. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). An April 2012 letter informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the April 2012 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant 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. In connection with the claim on appeal, the evidence of record includes the Veteran's VA outpatient treatment records and VA examination reports and medical opinions dated February 2008, October 2010, December 2011, July 2012, and August 2012. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports and medical opinions are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In August 2010, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. Any deficiencies in development were addressed in the subsequent October 2011 Board remand. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the veterans law judge who conducts a hearing fulfill the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked). Pursuant to the Board's October 2011 remand instructions, the RO arranged for VA DBQ examinations in July 2012 and August 2012. These examination reports reflect that the examiners considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinion offered. Hence, the Board concludes that the July 2012 and August 2012 VA DBQ examinations are adequate and substantially complied with the October 2011 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). The issue was readjudicated by the RO in a December 2012 SSOC. VA's duty to assist is met. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to TDIU is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs