Citation Nr: 1320161 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-50 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011 and July 2012, the Board remanded this case for additional development, that development has been completed and the case has been returned for further appellate review. FINDINGS OF FACT 1. The Veteran is service-connected for posttraumatic stress disorder (PTSD), rated 50 percent; neuritis of the left ulnar nerve with retained foreign body, evaluated as 20 percent disabling; scars of the left lower extremity with retained foreign body, evaluated as 10 percent disabling; and residuals of a wound to Muscle Group XIX of the abdomen, evaluated as 10 percent disabling. His combined rating is 70 percent. 2. The most probative evidence indicates that the Veteran's service-connected disabilities do not preclude him from substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating for compensation based on individual unemployability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in October 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). The claim was readjudicated in the January 2013 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records, Virtual VA file, and available private and VA treatment records have been obtained. In addition, he has been provided with appropriate VA examinations in connection with the claim which sufficiently describe the manifestations of the Veteran's disabilities for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, he has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. The Board also notes that actions requested in the prior remands have been undertaken. Indeed, VA medical records were obtained, VA examinations were conducted, and VA medical opinions were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). TDIU The Veteran claims that his service-connected PTSD, neuritis of the left ulnar nerve with retained foreign body, scars of the left lower extremity with retained foreign body, and residuals of a wound to Muscle Group XIX of the abdomen, prevent him from engaging in substantially gainful employment. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching that 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 (1993). 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 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, 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(a) (2012). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence shows that the Veteran has a number of nonservice-connected disabilities, to include arthritis, skin cancer, vision problems and lower back pain. As of April 8, 2008, the Veteran is service connected for PTSD, evaluated as 50 percent disabling; neuritis of the left ulnar nerve with retained foreign body, evaluated as 20 percent disabling; scars of the left lower extremity with retained foreign body, evaluated as 10 percent disabling; and residuals of a wound to Muscle Group XIX of the abdomen, evaluated as 10 percent disabling. Thus, effective April 8, 2008, the Veteran's combined disability evaluation is 70 percent, meeting the schedular requirements for TDIU as of that date. See 38 C.F.R. § 4.16(a). The remaining question before the Board is whether the Veteran is unemployable solely by reason of his service-connected disabilities, taking into account his educational and occupational background. A review of the record shows that the Veteran's highest education level achieved is high school. The Veteran retired after working for the railroad for approximately 38 years. He claims that while he retired in 2007 on the basis of longevity because he qualified to do so, he would have had to leave his position due to his disabilities because of stress and the requirements of his job. The Veteran denied attempting to obtain employment since his retirement. VA treatment notes show that in May 2008 the Veteran underwent a mental health evaluation. He reported having retired from his previous employment after 38 years and 8 months. The Veteran endorsed frequent flashbacks, irritability, nightmares, increased arousal, and exaggerated startle response. During his employment, he reportedly occasionally became angry with coworkers and preferred to be alone. His coworkers mostly ignored him because of the quality of his work was good. He stated that he avoided vacations and social activities and had a very small group of friends. The Veteran had been married for 39 years and had 3 adult children with whom he had a close relationship. He denied a history of domestic violence or legal trouble. Affect was sad and constricted. Thoughts were logical, coherent and goal oriented. He exhibited good abstraction, intellectual insight and fair judgment. The clinician diagnosed PTSD. A Global Assessment of Functioning (GAF) score of 60 was assigned. When evaluating a psychological disability, the examiner often provides a GAF score. GAF scores from 51 to 60 indicate more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (Fourth Edition); 38 C.F.R. §§ 4.126, 4.130 (2012). The clinician noted that in his previous employment the Veteran had been able to work independently, which was fortunate given his symptomatology. The Veteran underwent a VA PTSD examination in July 2008. He complained of nightmares twice a week with problems sleeping. The Veteran also endorsed self isolation, flashbacks, anger, problems sleeping, irritability, exaggerated startle response, moderate social anxiety, social avoidance, hypervigilence, and intrusive memories. There was no evidence of psychosis or mania, and he denied suicidal or homicidal ideation. Insight and judgment were good. While he reported being uncomfortable in crowds, he had been able to go on vacations and cruises where he was around other people and had enjoyed it. He also reported attending church on a daily basis. The Veteran reported living with his spouse of over 38 years. He had been previously employed as a freight manager for the railroad for 38 years. The Veteran related having been written up a few times at his former employment due to issues related to his temper, but he never came close to losing his job. Moreover, these disruptions never affected the quality of his work. The Veteran denied a history of psychiatric hospitalization or treatment prior to 2008. He stated that his PTSD symptoms had increased since his retirement in 2007. The Veteran was diagnosed with chronic, moderate PTSD and assigned a GAF score of 60. Following a review of the Veteran's claims file and an examination of the Veteran, the examiner opined that currently, if the Veteran were back in an occupational setting, he would likely continue to have at least mild anger-related issues at work given his propensity to experience this symptom in work situations where he works with others. However, the examiner found that historically and currently, no severe occupational dysfunction was noted due to his PTSD symptoms. His prognosis was fair to good. VA treatment notes in May 2009, reported that the Veteran was working as a volunteer DAV driver a couple of times a week. He was described as having good eye contact and grooming. Speech was normal. Thought process was coherent and logical. Cognition was intact. The Veteran was being treated for his PTSD with medication. The impression was PTSD in partial remission. On VA scars examination in June 2009, the Veteran complained of increasing pain and swelling in the left thigh around his scar, as well as pain shooting up his leg. No obvious abnormalities were noted. The examiner reported that the Veteran had retired in August 2007 because he was eligible by age or duration of work and that his scars had no significant effects on his occupation. In a VA clinical treatment report in September 2009, the Veteran was described as a very active retiree. He was in charge of a lot of programs, to include fund raising for muscular dystrophy. He attended church on a daily basis and was involved with other community groups. The Veteran discussed upcoming future trips, to include a trip to Las Vegas for a reunion with other Veterans. Thereafter, in June 2010, the Veteran reported increased irritability. He stated that he did not have to retire as early as he did, but he felt he had no choice because of his temper and fear of an outburst at work. VA clinical treatment notes in August 2010 and October 2010 noted the Veteran's continued involvement with several charities and organizations. In this regard, it was noted that he was on the board of several organizations and continued to volunteer as a driver for DAV. He also volunteered delivering meals to people in need. The Veteran underwent VA mental disorder, muscle, peripheral nerve, and scar examinations in July 2011. On VA PTSD examination, the Veteran reported ongoing PTSD symptoms, to include social anxiety, problems dealing with large crowds, hypervigilance, nightmare, emotional numbing, frequent startle response, intrusive thoughts, irritability, sleep impairment, and flashbacks. The examiner noted the symptoms had not become markedly worse since he was last examined in July 2008. It was further noted that while there had been some improvement in some areas, overall the Veteran's symptoms remained moderate and relatively unchanged in severity. Following a review of the claims file and an evaluation of the Veteran, the examiner diagnosed chronic moderate PTSD and assigned a GAF score of 60. The Veteran's prognosis was noted as fair. The examiner opined, in pertinent part, that Veteran's PTSD symptoms did not result in total disability. Specifically, the examiner determined that if the Veteran were to become a candidate for employment, he would experience mild to moderate occupational difficulty due to irritability and anger. In a typical work situation his PTSD would result in disrupted relationships and at times difficulty with supervisors, but not dismissal. The examiner further found that while his PTSD symptoms would contribute to unemployability, by themselves they only resulted in moderate work-related disruptions that would be episodic albeit significant. After evaluating the Veteran's service-connected shrapnel wound to Muscle Group XIX of the abdomen, the muscle examiner opined that the service-connected wound had no significant effect on the Veteran's employability on employment of any nature except for a job that would require heavy lifting, as evinced by the fact that the Veteran had worked and retired with this disability. On peripheral nerves examination, the examiner noted that the Veteran, who was retired, had worked as a railroad conductor and since retired from that position. The examiner opined that the Veteran's neuritis had minimal effect on his previous employment. It was further noted that the Veteran was capable of sedentary employment. On VA scars examination the examiner noted that one of the scars, located on the Veteran's lateral thigh and approximately 15 centimeters above the knee, and was occasionally productive of some pain. The examiner opined, however, that the scars had no effect on joint function and did not prevent the Veteran from engaging in any job that would be sedentary or physical in nature. A social work progress note in November 2011, recorded the Veteran's complaints of increased social isolation and irritability. The Veteran reported that he had stopped taking his medications and the clinician encouraged to resume his medication intake. On follow-up a few days later, the Veteran reported feeling better after he started taking his medications again. He had been feeling depressed when he was off the medication. The Veteran, who had recently returned from a trip where he reunited with other Veteran, was getting ready to spend the winter in Florida with his spouse. He related having a lot of friends there and attending cultural events. In August 2012, the Veteran underwent a general VA examination. He reported intermittent pain in the abdominal and left leg scars with occasional muscle cramps in the abdomen brought on by heavy lifting. The Veteran also complained of parasthesias on the left forearm. Following an examination of the Veteran and a review of the claims file, the examiner opined that the Veteran's service-connected neuritis of the left ulnar nerve with retained foreign body, scars of the left lower extremity with retained foreign body, and residuals of a wound to Muscle Group XIX of the abdomen, did not inhibit the Veteran from obtaining or retaining gainful employment because the symptoms associated with these disabilities were mild in nature. In this regard, the examiner noted that following the in-service injury the Veteran had been gainfully employed for nearly 40 years despite the service-connected disabilities. Evidently, these disabilities had a minimal effect on the performance of his duties as a railroad conductor, which required the Veteran to pull himself up in a railroad cart on a daily basis, as well as adjusting train knuckles which were difficult to crank. The Veteran reported that in his previous employment he had been out of work for a few weeks due to being struck by a train. He denied any life threatening injuries due to this incident. The examiner noted the Veteran's continued involvement with charities and volunteer work. The Veteran also related doing yard work and playing golf on a regular basis. The examiner concluded that the Veteran's service-connected neuritis of the left ulnar nerve with retained foreign body, scars of the left lower extremity with retained foreign body, and residuals of a wound to Muscle Group XIX of the abdomen, did not preclude physical or sedentary employment, with the only limitation being no repetitive heavy lifting. On VA PTSD emanation in August 2012, the examiner diagnosed chronic moderate PTSD and moderate depressive disorder, not otherwise specified. The Veteran was assigned a GAF score of 52. The examiner determined that the Veteran's psychiatric symptomatology was productive of occupational and social impairment with reduced reliability and productivity. He further noted that the Veteran's psychiatric symptoms had a moderate impact on the Veteran's personal, social, and interpersonal day to day functioning. In an opinion report in January 2013, a VA psychologist reviewed the Veteran's claims file, to include VA examination reports, and concurred with the August 2012 VA PTSD examiner's findings and opinion that the Veteran's PTSD symptomatology resulted in notable disruptions in his occupational functioning from the stand point of maintaining appropriate work relationships and carrying out work duties. However, the psychologist also found that the Veteran's PTSD symptoms were not productive of unemployability. In this regard, the psychologist noted that the Veteran had been able to work for 38 years with only episodes of work-related disruptions, but at no time was his employment jeopardized. The psychologist indicated that PTSD resulted in impaired occupational functioning as the Veteran would have difficulty working in a setting where he was around a lot of people on a constant basis. As such, whether employed in a physical or sedentary capacity, the Veteran would have to work in an environment similar to that of his previous employment where he primarily worked independent of others. The Veteran relates unemployment to his service-connected disabilities. Where the determinative issue involves the question of whether the severity of the service-connected disabilities prevents employment, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159 (2012). As a lay person, the Veteran is not qualified through education, training, and expertise to offer an opinion on medical causation, where a lay assertion on medical causation is not competent evidence. Therefore, the Board finds that the Veteran's statements, relating his lack of employment to his service-connected disabilities, are not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the greater weight of the probative evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. While the VA examiners found that the Veteran's psychiatric symptoms are productive of some occupational impairment, it has consistently been determined that his psychiatric disability does not render the Veteran unemployable. Historically, the Veteran had been employed with the same employer for nearly 39 years. While his anger and irritability had resulted in episodes of disruption at work and he had occasionally been written up for his behavior, the psychiatric symptoms did not affect the quality of his work and he was able to work independently. Moreover, his job was never at risk. Significantly, the VA examiners have consistently described the Veteran's PTSD as moderate in severity and have assigned GAF scores ranging from 52 to 60, indicative of moderate symptoms. In this regard, the VA examiner in July 2011 opined, in pertinent part, that Veteran's PTSD symptoms did not result in total disability. The examiner further noted that while his PTSD symptoms would contribute to unemployability, they only resulted in moderate work-related disruptions that while significant, would only be episodic. In August 2012, the examiner determined that the Veteran's psychiatric symptomatology was productive of occupational and social impairment with reduced reliability and productivity. Similarly, in January 2013, a VA psychologist opined that while the Veteran's PTSD symptomatology resulted in notable disruptions in his occupational functioning, particularly in a work setting that required him to be around a lot of people on a constant basis, it was not productive of unemployability. The psychologist determined that the Veteran was capable of working in a physical or sedentary capacity in a work setting where he primarily worked independent of others. Consistent with the examination findings, VA treatment notes starting in 2008 show that while the Veteran's psychiatric symptomatology is productive of occupational impairment, mostly due to irritability with coworkers, he was able to function occupationally in the same employment for over 38 years and the symptoms did not affect the quality of his work, nor did they jeopardize his employment. Although there is evidence of social impairment, particularly in a work setting that would require the Veteran to work with a lot of people, the evidence is inconsistent with a finding of social impairment that would preclude employability. In this regard, the Veteran has been married for over 38 years and has generally reported a good relationship with his spouse and children. While retired, he has been described as very active. He has friends and attends church regularly. Throughout the period on appeal, the Veteran has been involved in numerous volunteer and charity events, as well as cultural and fund raising activities. The VA treatment notes also reflect a GAF score of 60. Significantly, there is no contrary clinical evidence of record indicating that the Veteran's PTSD, when considered by itself or together with his service-connected disabilities, prevents him from securing or following a substantially gainful occupation. With respect to the Veteran's other service-connected disabilities, the evidence shows that the only limitation presented by these conditions is restricted heavy lifting. On VA scars examination in June 2009 and July 2011, it was determined that the Veteran's scars had no significant effects on his occupation. On VA muscles examination in July 2011, the examiner opined that the service-connected wound had no significant effect on the Veteran's employability on employment of any nature except for a job that would require heavy lifting, as evinced by the fact that the Veteran had worked and retired with this disability. On peripheral nerves examination, the examiner opined that the Veteran's neuritis had minimal effect on his previous employment and he was capable of sedentary employment. Significantly, on VA general examination in August 2012, the examiner opined that the Veteran's service-connected neuritis of the left ulnar nerve with retained foreign body, scars of the left lower extremity with retained foreign body, and residuals of a wound to Muscle Group XIX of the abdomen, did not inhibit the Veteran from obtaining or retaining gainful employment because the symptoms associated with these disabilities were mild in nature. In support of the opinion, the examiner pointed out that for nearly 40 years the Veteran had successfully worked in a setting that could be physically demanding despite the in-service injuries. Additionally, the Veteran was able to do yard work and play gulf on a regular basis. Considering all of the Veteran's service-connected disabilities, the examiner concluded that they did not preclude physical or sedentary employment, and his limitation was restricted to repetitive heavy lifting. The Board is sympathetic to the Veteran's assertions regarding the impact of his service-connected disabilities, particularly his PTSD, on his occupational and social functioning. Those problems, however, are compensated by his current schedular ratings for those disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while his PTSD, neuritis of the left ulnar nerve with retained foreign body, scars of the left lower extremity with retained foreign body, and residuals of a wound to Muscle Group XIX of the abdomen, may cause some economic inadaptability, that also is taken into account in the assigned ratings and the combined 70 percent rating, which contemplates significant impairment in earning capacity. In this case, the preponderance of the evidence is against a finding of individual unemployability based solely on these disabilities. 38 C.F.R. § 4.1 (2012). No competent medical evidence shows that the Veteran's service-connected disabilities combine to render him unable to secure or follow a substantially gainful occupation. Based upon the foregoing, the Board concludes that the preponderance of 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 the evidence of record indicates that the Veteran has not worked since 2007, the preponderance of the evidence is against finding that his service-connected disabilities alone render him unemployable. The evidence shows that the Veteran stopped working when he retired due to age and longevity. In sum, the preponderance of the competent evidence of record is against a finding that his service connected disabilities preclude him from gainful employment. Accordingly, the Board finds that a total disability rating based upon individual unemployability due to service-connected disability is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a total disability rating for based on individual unemployability is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs