Citation Nr: 1320338 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 06-11 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total rating for individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from August 1988 to March 1996 in the United States Army. His military service includes deployment to Southwest Asia from December 1990 to May 1991 in support of Operations Desert Shield and Desert Storm. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Waco, Texas, Regional Office of the Department of Veterans Affairs (VA), which granted the Veteran service connection and a 30 percent evaluation for post-traumatic stress disorder (PTSD), effective from April 30, 2004 (i.e., the date on which VA received his original claim for VA compensation for this chronic acquired psychiatric disorder). The agency of original jurisdiction over the current appeal has since been transferred to the St. Petersburg, Florida, VA Regional Office (RO). The Veteran had appealed the initial evaluation assigned for PTSD, and additionally raised a claim of entitlement to a TDIU by contending that he was unable to work due to PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the course of this appeal, the case was remanded in May 2010. The 30 percent initial evaluation for PTSD was confirmed in a June 2011 rating decision and the case was thereafter returned to the Board in July 2011. In a September 2011 Board decision, the Veteran was granted a 50 percent evaluation for PTSD, effective May 27, 2011. This allowance was implemented in a December 2011 rating decision and the issue of entitlement to a higher initial evaluation for PTSD is now no longer in appellate status. The TDIU aspect of this claim was remanded by the Board in September 2011 for additional evidentiary and procedural development, including for the RO to conduct appropriate development of the record and adjudicate the TDIU claim on the merits in the first instance. Thereafter, the TDIU claim was denied in a March 2013 rating decision/supplemental statement of the case. The case was returned to the Board in May 2013 and the Veteran now continues his appeal. As the TDIU claim is based on an appeal of the January 2005 RO decision, which had granted the Veteran's original claim for service connection for PTSD effective from April 30, 2004, consideration must therefore be given regarding whether the case warrants the assignment of a TDIU at any time from April 30, 2004, to the present, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. The Veteran was awarded service connection and a 30 percent schedular evaluation for PTSD, effective April 30, 2005. 2. PTSD is currently the Veteran's only service-connected disability. 3. From April 30, 2005 to May 26, 2011, the Veteran's service-connected PTSD was rated 30 percent disabling); thereafter, it was rated 50 percent disabling from May 27, 2011 onwards. 4. At no time from April 30, 2005 to the present was the Veteran precluded from securing and following a substantially gainful occupation by reason of his service-connected PTSD. CONCLUSION OF LAW The criteria for a TDIU from April 30, 2005 to the present, to include on an extraschedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's TDIU claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This appeal stems from the Veteran's TDIU claim, which is part and parcel to his previously adjudicated claim for a higher initial rating for PTSD, per the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), which was rendered during the pendency of this appeal. The Veteran was provided with timely notice of the VCAA as it pertained to his TDIU claim in November 2011 and further informed him of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As this notice was furnished prior to the March 2013 rating decision/supplemental statement of the case that adjudicated the TDIU claim on the merits in the first instance, no timing of notice error exists. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. The Board also concludes VA's duty to assist has been satisfied. The Board has reviewed the Veteran's claims file and observes that private, Social Security Administration (SSA), and VA medical records and examination reports pertaining to the Veteran's service-connected PTSD for the period from 2004 - 2013 have been obtained and associated with his claims folder, or are otherwise viewable on the Virtual VA electronic database. These include reports of VA psychiatric examinations conducted in August 2005, May 2011, and most recently in February 2013, in which the impact of the Veteran's psychiatric condition on his employment capacity is discussed. The VA examination reports are predicated upon a clinical examination of the Veteran and are presented in the context of his relevant clinical history, and the Board thus finds them adequate for purposes of adjudicating the TDIU claim on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the aggregate of the clinical evidence is sufficient to present a picture of the impact of the Veteran's service-connected PTSD upon his occupational capacity. The evidence of record is therefore sufficient to allow the Board to determine the occupational impact of the Veteran's service-connected PTSD on his industrial capacity in the context of his age, and vocational and educational history. In any case, the Veteran and his representative have been provided ample opportunity to add to the record prior to the return of this case to the Board and they have not identified any relevant outstanding evidence whose inclusion in the record is deemed necessary to fairly adjudicate the current TDIU claim. The Board notes the Veteran's representative's contentions, as presented in a May 2013 appellate brief and informal hearing presentation, the February 2013 VA psychiatric examination is flawed for applying the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual, Fourth Edition, Text Revision (DSM-IV-TR), to assess the validity of his PTSD diagnosis, which is in noncompliance with VA regulation 38 C.F.R. § 4.130, which specifies only the use of the earlier DSM-IV. While acknowledging this irregularity, the Board finds that it does not render the February 2013 VA examination unusable for purposes of adjudicating the current TDIU claim on appeal as the only issue before the Board at the present time is the impact of the Veteran's service-connected psychiatric condition on his employability and not the actual validity of the Axis I diagnosis. The Board also notes at this juncture that the evidentiary and procedural development undertaken by the RO since the Board's latest remand of September 2011 is in substantial compliance with the instructions contained therein. Therefore, a remand for additional corrective action is not deemed necessary. (See Stegall v. West, 11 Vet. App. 268 (1998): A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. However, the Court has held in Dyment v. West, 13 Vet. App. 141, 146-47 (1999), that exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions.) The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3 (2012). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. As previously stated, the Board itself cannot assign an extraschedular rating in the first instance. However, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). During the entirety of the period of the claim (i.e., from April 30, 2004 to the present), the Veteran is service-connected only for PTSD (rated 30 percent disabling prior to May 27, 2011, and 50 percent disabling thereafter). Therefore, the Veteran has not met the minimum rating requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a). The Veteran's clinical records from VA, SSA, and private sources show that for the pertinent time period at issue, he was actually employed and held jobs in general construction and also as an electrical contractor, a deck hand on a tow boat, and a baker at a restaurant. The Veteran states that he ceased working in late 2008, claiming that he was no longer able to work because of occupational impairment associated with his service-connected psychiatric disorder. The Veteran's education background includes a high school diploma and a nursing school degree, in which he earned a degree as a practical nurse, although he was precluded from being licensed to practice as a nurse due to his history of felony conviction (including time served in prison) and substance abuse issues. The Board has reviewed the relevant psychiatric treatment records from VA, private sources, and the SSA for the period from April 2004 to the present. These all acknowledge that the Veteran has no more than moderate social and occupational impairment as a result of his service-connected PTSD, primarily due to PTSD affecting his impulse control, his ability to interact appropriately with the general public, his ability to maintain attention and concentrate for extended periods, and his ability to understand and remember detailed instructions. However, none of these objective psychiatric assessments conclude that the Veteran is precluded from pursuing gainful employment solely due to his service-connected disorder. Indeed, the SSA denied the Veteran's claim for disability benefits in February 2010, predicating its denial on the determinations of a February 2010 SSA psychiatric evaluation, which found in pertinent part that - [Despite the Veteran's acknowledged psychiatric deficits, he] can perform work in a stable environment [and is] capable of working within a work schedule and at a consistent pace[, is] able to maintain regular attendance and be punctual[, and] would not require special supervision in order to sustain a work routine. Due to the nature of the [Veteran's PTSD, his] abilities to socially interact are restricted [but] [t]he claimant is able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from any impairment. [The Veteran] retains the ability to perform simple, repetitive tasks and likely has abilities to perform tasks at higher levels in spite of the moderate limitations noted above. [The Veteran] is able to meet the basic mental demands of work on a sustained basis despite any limitations resulting from [his] identified [psychiatric disabilities]. The February 2013 VA psychiatric examination report also clearly states that the Veteran is not rendered unable to maintain gainful employment by his PTSD. The examining VA psychologist opined that - There is nothing in this evaluation that would suggest that the veteran's current symptoms due to any disorders, including. . . PTSD, would preclude him from obtaining and maintaining gainful employment. His symptoms do not impact his ability to engage in physical and/or sedentary work if he so chooses. Based on the Veteran's current level of functioning, he appears capable of either active or sedentary employment. This opinion is based on extensive review of the Veteran's [claims] file and. . . mental health records, subjective reported level symptoms [and] diagnostic clinical interview [by] this examiner. In view of the foregoing discussion, the Board finds that the preponderance of the evidence of record does not show that the Veteran has met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), or that he is unable to obtain and maintain a substantially gainful occupation because of the severity of his service-connected PTSD for the period from April 2004 to the present. Therefore, his claim for a TDIU under the regulatory provisions of 38 C.F.R. § 4.16(a) must be denied. Furthermore, in view of this preceding discussion, the Board also finds that there is no basis to refer his TDIU claim to the Director of the Compensation & Pension Service for consideration of an extraschedular grant of a TDIU under § 4.16(b) as the clinical evidence demonstrates that he is objectively deemed to be capable of obtaining and maintaining gainful employment despite moderate social and occupational impairment associated with his PTSD. Because the evidence in this case is not approximately balanced with respect to the merits of his TDIU claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to a TDIU, to include on an extraschedular basis, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs