Citation Nr: 1320163 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 04-03 402A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) prior to May 27, 2011. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from July 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. The Board notes that the Veteran was scheduled for videoconference Board hearing in April 2009. In correspondence dated in March 2009, the Veteran, through his representative, requested to cancel his hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2012). This matter was previously before the Board in May 2009, January 2011, and June 2012 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Veteran has been awarded a 100 percent rating for service-connected acquired psychiatric disabilities, effective from May 27, 2011. In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to obtain a TDIU rating even where a 100 percent schedular rating has also been granted. Id at 293-94. The Veteran has two service-connected disabilities (acquired psychiatric and amputated finger). In a January 2011 rating decision, the Board denied the Veteran's claim for a rating in excess of 10 percent for his service-connected traumatic amputation of the distal and middle phalanges of the right middle finger. Therefore, the Veteran is not entitled to a TDIU evaluation based on his service-connected finger disability. The Veteran could possibly be entitled to TDIU, prior to January 2011, if the evidence reflected that such a finding was warranted based on his PTSD. In October 2007, the Veteran appointed Disabled American Veterans (DAV) as his representative. In April 2013 correspondence, DAV informed the Board that it was no longer the accredited representative of record because the Veteran appointed the California Department of Veterans Affairs as his representative in August 2012. In April 2013 correspondence, the Board requested the Veteran to clarify his representation. The Board informed the Veteran that if it had not heard from him, or his representative, within 30 days of the April 29, 2013 correspondence, it would assume that he wished to represent himself. To date, the Board has not received correspondence from the Veteran or a representative. Therefore, the Board finds that the Veteran is unrepresented, and the Board will proceed to adjudicate his claim. FINDINGS OF FACT 1. The Veteran has been granted service connected for PTSD, depression, and major depressive disorder, evaluated as 50 percent disabling from February 27, 2004, and as 100 percent disabling effective from May 27, 2011. 2. The Veteran has been granted service connection for traumatic amputation of the distal and middle phalanges of the right middle finger with sensitive stump, evaluated as 10 percent disabling effective from April 10, 1971. 3. The evidence of record is against a finding that the Veteran's service-connected disabilities precluded him from maintaining substantially gainful employment prior to May 27, 2011. CONCLUSION OF LAW The criteria for the award of TDIU benefits prior to March 27, 2011 have not been 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 VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in May 2001, March 2006, and October 2006. VA also has a duty to assist the Veteran in the development of the claim. The claims file contains the Veteran's STRs, Social Security Administration Records (SSA), VA and private medical records and correspondence, and the statements of the Veteran in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The rating period on appeal is prior to May 27, 2011; thus, a current VA examination is not necessary. The Board acknowledges that in some circumstances a retrospective medical evaluation may assist VA in adjudicating a rating issue. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). However, in the present claim, the Board finds that there is sufficient evidence of record to evaluate the Veteran's claim; thus, a retrospective opinion is not necessary. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria 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 a 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 service-connected disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability, as will disabilities of common etiology. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the current claim. 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. The Veteran is service connected for PTSD, depression, and major depressive disorder, evaluated as 50 percent disabling from February 27, 2004, and evaluated as 100 percent disabling effective from May 27, 2011. He is also service connected for traumatic amputation of the distal and middle phalanges of the right middle finger with sensitive stump evaluated as 10 percent disabling effective from April 1971. His combined evaluation is 10 percent prior to February 27, 2004, 60 percent from February 27, 2004 through May 26, 2011, and 100 percent from May 27, 2011. Thus, prior to May 27, 2011, the Veteran did not meet the scheduler criteria for TDIU listed in 38 C.F.R. § 4.16(a) because he does not have at least one disability rated at 40 percent or more and a combined evaluation for compensation of 70 percent. The Board has also considered whether the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). The issue is whether the Veteran is unable to follow a substantially gainful occupation as a result of a service-connected disabilities, not whether the Veteran can find employment. See Van Hoose, 4 Vet. App. at 361. Prior to February 27, 2004 In a statement dated in February 2000, the Veteran stated that his service-connected finger disability has affected his ability to retain gainful employment as a truck driver. February 2000 VA records reflect that the Veteran reported that he works as a long haul flat bed driver. The examiner noted that because of the vibration of the Veteran's truck, it would be better if he does not work for a while because the vibration could increase damage along with decreased grip/pinch strength, which could lead to driving difficulties. The Veteran was diagnosed with possible carpal tunnel syndrome with coexisting cervical radicular symptoms, and "mild impingement syndrome on the right which does not seem to be his major problem." The Veteran is not service connected for carpal tunnel syndrome, cervical radicular symptoms, or mild impingement syndrome. April 2000 VA records reflect that the Veteran had clinical symptoms of cervical radiculopathy and possible carpal tunnel syndrome. The report reflects that a March 2000 MRI revealed minimal degenerative changes resulting in mild foraminal stenosis bilaterally C3-4 and on the right C5-6. It was noted that since that time "the veteran has had pain primarily in his shoulder with movement and denying any numbness or pain below his upper arm." The records also reflect that the Veteran admitted to chronic pain in the legs and back. A July 2000 VA examination report is of record. The record reflects that in approximately March 1999, the Veteran had a slip and fall injury from his truck cab and fractured his right lower leg and injured his right knee, which required surgery. It was noted that he continued with chronic symptoms. The Veteran had complaints with regard to feelings of weakness in the full length of the right upper extremity, the back, and both lower extremities. He stated that his most bothersome health problem in the last three months was the back pain. The second worse problem was the weakness in the right upper extremity and both lower extremities. The assessment was as follows: The right hand has a history of amputation of middle finger and repair of laceration of ring finger in military. These surgeries are well healed. A moderate continuing tenderness was mostly at the end of the amputation stump and is diagnosed as bothersome scarring. NEW WEAKNESS - He developed bothersome weakness in January 2000. . . . this weakness is probably totally unrelated to the old injury of the right hand in military. It is probably also totally unrelated to the residuals of that injury. The right hand functioned quite well until January 2000. The report reflects that the Veteran had not worked since January 2000 and that he was unable to continue with long-haul flat-bed truck driving because he could not strap the load down on the truck or shift gears as he was right hand dominant. A private December 2000 private psychiatric record reflects the opinion of the examiner that "it is difficult to imagine prospective employers looking positively upon him with this condition [RSD (reflex sympathetic dystrophy)], and driving a truck would certainly require flexibility and use of both hands. At this point there is complication of additional aspects of depression, irritability, and further frustration and anger." The examiner felt that the RSD was related to the Veteran's service-connected finger amputation; however the Board notes that additional VA clinical records are against such a finding, and the RO, in a March 2006 rating decision, denied service connection for RSD. In May 2001, the Veteran filed a claim for TDIU. He reported that he had last worked in January 2000. He also reported that he had been a semi truck driver and had lost zero days of work due to illness in the previous year. VA records from December 2000 reflect that the Veteran was diagnosed with RSD. It was noted that the Veteran had chronic pain from RSD and had failed a course of prednisone therapy. It was noted that the entity can be very difficult to treat. A February 2001 VA examination report reflects that the Veteran reported that his pain in his right hand and fingers began the previous year; it was noted that he fell out of truck but did not injure anything in particular. It was further noted that he has "been unable to lift his arm, and the company sent him to a physician that was not able to treat him, and this was not an on-the-job injury. The patient's pain is in a somewhat of a glove fashion from his wrist to his fingers. He also suffered with the original traumatic amputation laceration of his fourth finger. He notes that he has had tremors of his right hand and arm beginning four to five months ago." The Veteran was diagnosed with RSD of the right arm and hand. A January 2003 VA clinical record reflects that the Veteran reported that he has been diagnosed with RSD and this "has totally changed his life because of the pain and inability to work with his hands." A June 2003 VA examination report is of record. It reflects that the Veteran reported that after he fell from a truck and broke the fibula of his right lower extremity, he has had chronic low back pain and twitching of the legs. He reported that the bottoms of his feet are so sensitive that he does not want anybody to touch them. He stated that with regard to his back, he is unable to physically support himself. A December 2003 private neurosurgical consultation record reflects that the Veteran complained of headaches. Upon clinical examination, his right upper extremity had some dysmetria. Both hands appeared slightly swollen and rubrous. The Veteran stated that people cannot touch his legs as it caused his legs to spasm for the entire day. When the examiner tried to touch the Veteran's legs, the Veteran kicked both legs rather abruptly. The Veteran is not service-connected for an acquired psychiatric disability prior to February 27, 2004; thus, the only disability which could potentially allow for a grant of TDIU would be his right finger disability. In sum, the evidence, as noted above, reflects that the Veteran was fully able to be employed despite his service-connected finger disability until he fell out of his truck and injured his back, lower extremities, and right upper extremity. In addition, the Veteran reported that the RSD pain, for which he is not service connected, made him unable to work with his hands. From February 27, 2004 to May 27, 2011 The Veteran is service connected for PTSD, depression, and major depressive disorder from February 27, 2004. A May 2004 private record reflects that the Veteran was alert and coherent and wanted to keep his medication the same because he felt that the medications helped with anxiety, mood, pain, and sleep. He reported an increase in nightmares recently, but had no suicidal or homicidal ideation. He reported minimal alcohol use (2 -3 beers a month) and occasional marijuana use to decrease pain. He reported benefiting from ongoing counseling. A July 2004 private record reflects that the Veteran reported frustrations with interacting with people who are rude, inconsiderate, or unhelpful. A May 2004 VA examination report is of record. The examiner assigned a GAF (Global Assessment of Functioning) score of 50. According to the pertinent sections of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). The Board is not bound to assign a disability rating based upon GAF scores, but considers all of the evidence of record, to include the clinician's statements regarding the actual symptoms of the Veteran. The report notes that the Veteran's thought process was logical, but extremely circumstantial. He was unable to accurately count back from 100 by seven, spell the word "world" backwards, or correctly interpret a metaphor. He stated that he had hallucinations, which began one year prior. He reported no suicidal thoughts, but stated that if he saw his family members again, he would kill them. He maintained daily hygiene, had a caregiver to do his dishes, and was oriented times three. He obsessed about the pain in his hand, did not have ritualistic behaviors, had a slow rate and flow of speech, and reported excessive worry. He reported sleeping 12 hours. He had some personality traits of paranoia. He was well groomed. His memory was intact, his general knowledge was intact, his judgment was fair, his insight was poor, his executive functioning was intact, and he had a depressed mood. The examiner noted that the Veteran isolates and avoids people; however, the examiner felt that this was due to the Veteran's personality traits. Correspondence from Dr. W. of Del Norte County, California, dated in September 2004, is of record. It reflects that the Veteran suffers from three psychiatric conditions that "greatly impair his functioning." Subsequent phone records from Dr. W., and correspondence dated in January 2005, reflect her opinion that she is unable to know what portion of the Veteran's symptoms are due to specific periods of the Veteran's life or his military service. Dr.W. did not elaborate as to what constituted "greatly" impaired functioning. September and November 2004 private records reflect that the Veteran reported an increase in nightmares. The examiner explained that the Veteran's medications may suppress his REM sleep. The Veteran reported that he was trying hard to find activities to take his mind off his pain, including spending time on the computer. He also reported that he was frustrated with his RSD pain and that the pain medications do not help. The Veteran requested that the examiner provide a statement that his PTSD was related to service; however, the examiner stated that the examiner could not determine what percentage of his symptoms is due directly to his military service. December 2004 records reflect that the examiner was asked to write a letter stating that the Veteran's PTSD was due solely to the finger injury in service and not due to his childhood (i.e. the Veteran's parents died in an accident when he was 13 and he was sent to live with various relatives); however, the examiner stated that the examiner was unable to write such a letter. The examiner stated "I am unable to know what portion of his [symptoms] are related to what periods of his life." A private psychotherapy evaluation, dated in January 2005, from B.L. reflects that the Veteran had a GAF score of 45. The report reflects that the Veteran reported that his problems began approximately 2.5 years earlier, and that he began having nightmares about severed fingers, which he reported led to sleep walking. He further reported panic attacks several times a week, and that he avoids all reminders of cooking, as he injured his finger in a cooking incident. The Veteran reported that he feels uncomfortable in public. He denied suicide intent, but felt that he had no purpose in life. He reported auditory hallucinations, and seeing dark spots; which the examiner felt may be a side effect of his medication for restless leg syndrome. (The Veteran is not service-connected for restless leg syndrome.) September 2005 correspondence from Dr. T.M. reflects that the Veteran has diagnoses of major depression and PTSD. Dr. T.M. stated that while the Veteran has "improved on his current medication regime, he continues to have recurrent nightmares and chronic pain associated with a traumatic event, which occurred while he was on active duty in the armed forces. We do not have the resources to adequately treat his problem on a local level and I am writing to ask that he be evaluated for a PTSD program through VA." The Board notes that Dr. T.M. lists chronic pain due to a traumatic event in service; however, the probative competent credible clinical evidence of record reflects that the Veteran's bilateral lower extremity pain, back pain, and right upper extremity pain are not related to his service-connected amputated finger. Moreover, his amputated finger stump has been clinically shown to be "tender," which the Board finds is not analogous to chronic pain. An October 2005 VA examination report is of record. It reflects that the Veteran's service-connected finger tenderness is mostly due to RSD, for which the Veteran is not service connected. The examiner opined that the residuals of military injury have only moderate tenderness. The examiner opined that the Veteran's RSD was not related to his amputated finger. He also opined that 60 percent of the Veteran's right hand disability is due to service, and 40 percent the his difficulty is due to his nonservice-connected RSD. Correspondence from B.S. of Del Norte County, California, dated in April 2006, reflects his opinion that the mental and physical difficulties which the Veteran is experiencing "seem to be a direct result of the military incident that caused the client to [sic] loss of his right middle finger. It is evidence that the client is unable to secure and maintain a gainful occupation due to his disability." The Board finds that the opinion lacks probative value as it does not reflect that B.S. was aware that competent probative clinical opinions were against a finding that the Veteran's RSD was related to service, and that the Veteran's back, shoulder, restless leg syndrome, and other physical disabilities are not related to service. B.S. did not fully explain why the Veteran was unable to secure and maintain a gainful occupation of any kind. A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed evaluation. A July 2006 VA clinical record reflects that the Veteran was transferring his care to a new VA facility. There were no psychiatric complaints at the time, but it was noted that he had multiple mental health diagnoses. He also had dysphagia, eczema, hearing impairment with tinnitus, suspected cognitive disorder, obesity, hypercholesterolemia, restless leg syndrome, and erectile dysfunction. An August 2007 VA initial psychiatric consultation report is of record. It reflects that the Veteran denied any psychiatric hospitalizations. He also denied a history of suicide attempts. The report reflects that the Veteran reported that he had last worked in trucking but that he had ceased working in 2000 due to the truck incident [he fell onto a pile of chains and injured his back]. The report reflects that when "asked if he would like to go back into trucking, [the Veteran] replies 'No, my back couldn't take it and I also have bone spurs.'" The examiner assigned a GAF score of 50. The Board notes that the Veteran did not have hallucinations, delusions, paranoia, or homicidal ideation. His insight was poor; however, his impulse, concentration, and fund of knowledge were all fair. In addition, his cognition was intact. Notably, the Veteran did not state that he was unable to work as a truck driver due to his acquired psychiatric disability, but instead noted that his nonservice-connected back disability prevented him from returning to work. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). The Board notes that a GAF score of 41 to 50 may indicate an inability to keep a job. The Board also notes a GAF score of 21 to 30 indicates an inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends), and a GAF score of 31 to 40 indicates major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g. is unable to work). GAF scores can be helpful in determining the level of a Veteran's disabilities, however, they are not the sole determinative factor in assigning a rating or in determining whether the Veteran is entitled to TDIU. The Board has considered the Veteran's GAF scores but has also considered that the Veteran's employment experience is as a truck driver which does not generally involve extensive interaction with co-workers, socializing, or communication with others. The record is also against a finding that the Veteran has had problems with excessive alcohol or drug use, physical assaults, or legal problems, or that he has been hospitalized for his acquired psychiatric disabilities. In sum, the evidence of record does not reflect that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disability(ies). The record reflects that the Veteran has a high school education (GED), and employment experience as a janitor (VA Form 21-2545 dated in August 1971), at least ten years as a truck driver (See June 2000 VA examination report), and experience as a seafood packer (See December 2000 private record). The Board notes that the mere fact that the Veteran's disabilities have an effect on his employment is not sufficient to find that he is entitled to TDIU. In order to warrant TDIU, the evidence of record must reflect that the Veteran is unable to secure and follow a substantially gainful occupation consistent with his education and occupational experience by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The record reflects that the Veteran stopped working due to non-service related conditions, but that he is currently unable to maintain substantial gainful employment due to a service-connected disability. The Board finds that the evidence of record, as noted above, does not support a finding that the Veteran, prior to May 27, 2011, was unable to maintain substantial gainful employment solely due to service-connected disabilities. The Veteran's ratings are recognition that the impairment may make it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment consistent with his education and occupational experience. See Van Hoose, 4 Vet. App. at 361. In making its determination, the Board has considered the entire claims file, to include the clinical findings with regard to symptoms, the GAF scores, and the Veteran's employment history. Notably, the Veteran has sufficient employment experience as a truck driver. The record does not reflect that his acquired psychiatric disabilities and/or his amputated finger, either solely or taken together, prevented him from such employment prior to May 2011. The preponderance of the evidence is against the Veteran's contention that his service-connected disabilities are of such severity, even in combination, as to preclude his participation in substantially gainful employment. The Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert . v. Derwinski, 1 Vet. App. 49 (1990). Referral to the Director , Compensation and Pension Service for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b) is not warranted. ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) prior to May 27, 2011 is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs