Citation Nr: 1322860	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  09-34 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 24, 2011.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his Spouse


ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel

INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012).

The Veteran served on active duty from November 1968 to August 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California that in relevant part granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial rating of 50 percent effective from December 5, 2008.  Custody of the claims file was subsequently transferred to the RO in Los Angeles, California, which is currently VA's Agency of Original Jurisdiction.

The Veteran had his spouse testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in April 2012.  A transcript of the hearing is of record.

During the course of the appeal the Board determined that a claim of entitlement to TDIU had been raised by the rating issue on appeal, per Rice v. Shinseki, 22 Vet. App. 447 (2009).  In May 2012 the Board issued a decision that granted a TDIU effective from June 24, 2011, and remanded the issue of entitlement to a TDIU prior to that date to the Originating Agency for further development.  

The Board remanded the issue to the Originating Agency once again in March 2013.  The file has now been returned to the Board for further appellate action.

   
FINDING OF FACT

Prior to June 24, 2011, the Veteran was gainfully employed.  


CONCLUSION OF LAW

The criteria for entitlement to a TDIU prior to June 24, 2011, are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant.  

In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The issue of entitlement to TDIU is a "downstream" issue arising from initial disability rating assigned following a grant of service connection for PTSD.  The United States Court of Appeals for Veterans Claims (Court) has held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006); see also Hartman v. Nicholson, 483 F.3d 1311, 1314-1315 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007).  

In any event, the Veteran has not alleged or demonstrated any prejudice with regards to the content or timing of notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice irregularity and clarifying that the burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency's determination).  

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The Veteran's service treatment records (STRs) are associated with the file, as are post-service treatment records from those VA and non-VA medical providers the Veteran has identified as having potentially relevant records.  On two occasions the Originating Agency asked the Social Security Administration (SSA) to provide any disability records associated with a claim for disability submitted to that agency by the Veteran, and on both occasions (most recently in October 2012) the SSA responded to VA that no records could be found at that agency, indicating that the Veteran had either not filed for disability or that no records were obtained by SSA (see Formal Finding of Unavailability of Social Security Records dated in December 2012).  Further, the Veteran submitted a Statement in Support of Claim in August 2012 clarifying that he was not receiving, and had not applied for, SSA disability benefits.  VA has no duty to seek to obtain that which does not exist.  Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993).

The Veteran has also been afforded a hearing before the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the presiding Veterans Law Judge identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection for diabetes mellitus and increased rating for PTSD (the issue then under appeal).  Additionally, the Veteran volunteered his employment history during the period under consideration.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.   The hearing focused on the elements necessary to substantiate the claims on appeal, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. 

The Board previously reviewed the file and determined that Federal poverty guidelines should obtained, and that the Originating Agency should readjudicate the appeal on consideration of those records.  This has been accomplished.

Neither the Veteran nor his representative has made the Originating Agency or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the appellant in the adjudication of his appeal.  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal.

Applicable Legal Principles

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.  A finding of total disability is appropriate, "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."  38 C.F.R. §§ 3.340(a)(1), 4.15.

A TDIU may be assigned, if 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16(a).

Marginal employment will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment is due to disability.  For the purpose of this section, marginal employment shall generally be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop) when earned income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.   38 C.F.R. § 4.16(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.





Evidence and Analysis

The rating decision on appeal granted service connection for PTSD effective from December 5, 2008.  Because the issue of entitlement to TDIU arises from that initial rating, the Board has considered evidence of employability from that date.  

From December 5, 2008, the Veteran has been rated at 70 percent for PTSD, and he accordingly meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a).  The Veteran has no other service-connected disabilities.

The Veteran presented to the VA outpatient clinic on December 2, 2008, for initial mental health assessment.  The Veteran complained of current symptoms of insomnia (his main complaint) and nervousness, irritability/anger, memory problems, detachment and depression.  He reported disliking crowds and avoiding war-related stimuli.  The Veteran was currently employed as a longshoreman.

The Veteran had a VA mental health consult on December 5, 2008 in which he reported having worked as a longshoreman for 8 years.  Prior to working as a longshoreman he had worked as a planner and estimator for the Department of Defense until he retired from that job in 1997.  The clinician noted a current Global Assessment of Functioning (GAF) of 70.

The file contains a letter dated in February 2009 by Mr. JW, who stated he was the Veteran's current supervisor at work and had been so for the past seven years.  Mr. JW stated the Veteran was very distant toward co-workers and frequently spurned authority.  

The Veteran submitted a letter in April 2009 stating he had worked at the Long Beach Naval Shipyard until February 1997; when that installation closed the Veteran was given the option of transferring to another location or taking early retirement.  The Veteran opted to retire early due to his problems with ongoing medical and psychiatric issues, but he subsequently reentered the work force.  The Veteran stated he had missed 140 days of work in 2008 and had missed 40 days of work in 2009 so far.  He enclosed a Participant Status Report from the International Longshore and Warehouse Union (ILWU)-Pacific Maritime Association (PMA) Benefit Plan showing the Veteran's qualifying hours through the end of 2008.

The Veteran had a VA-contracted psychiatric examination in April 2009, performed by a psychiatrist who reviewed the claims file.  The Veteran complained of explosive anger management issues, chronic nervousness and sleep problems.  He reported nightmares, flashbacks, intrusive memories, avoidance behaviors, estrangement from his family, heightened arousal, sense of foreshortened future, diminished interest in activities, difficulty concentrating, exaggerated startle response, hypervigilance and survivor guilt.  The Veteran was noted to be currently employed as a longshoreman, where he reportedly got along fairly well with supervisors but poorly with co-workers because he would get into fights and talk back.  The examiner assigned a current GAF of 60.  The examiner noted the Veteran had missed extensive days at work due to depressive symptoms and avoidance symptoms but stated the Veteran was mentally capable of performing activities of daily living (ADLs) with no difficulty and had no difficulty understanding simple or complex commands.

A VA ambulatory care clinic note dated in May 2009 states the Veteran was currently employed as a truck driver.

VA outpatient mental health clinic (MHC) treatment notes during the period January-June 2009 state the Veteran made some improvement in his sleep patterns and his irritability consequent to his medication regimen.

The Veteran's attending VA psychiatrist, Dr. SB, submitted a letter in July 2009 asserting the Veteran was currently experiencing PTSD-related symptoms including nightmares, insomnia, irritability, hypervigilance, intrusive recollections and negative outlook on the future.  The Veteran had reported a history of time missed from work over the past decade that Dr. SB believed to be accurate and to reveal a pattern of symptom exacerbation and absence from work that was incompatible with gainful employment.  Dr. SB stated he did not believe the Veteran to be employable secondary to his PTSD symptoms.  (Historically, Dr. SB had made a similar statement in October 2008, asserting at the time that the Veteran's irritability and hypervigilance made gainful employment "impossible.")

The Veteran submitted a Statement in Support of Claim in September 2009 asserting he was a fulltime longshoreman but he had to miss work whenever his PTSD symptoms became too much for him.

Dr. SB entered a VA MHC note in October 2009 stating the Veteran's symptoms had improved in all areas but still represented severe symptoms including nightmares, insomnia, hypervigilance, panic, irritability, low concentration, intrusive recollection and psychological/psychiatric response to stressors.  Dr. SB stated he was lowering the Veteran's assigned GAF to the 45-50 range; this did not represent a worsening of symptoms, but rather Dr. SB's better understanding of how the Veteran's symptoms impacted his functioning.

Dr. SB submitted a letter in September 2010 asserting the continued to experience nightmares, insomnia, intrusive recollections, panic attacks, irritability and decreased concentration.  The Veteran's symptoms had improved only slightly, and the Veteran reported that he had only been able to work 7 months out of the past year.

Thereafter, Dr. SB submitted a letter in November 2010 stating the Veteran had to take months off work during the past year due to symptoms of anxiety, panic and insomnia, and when at work the Veteran had difficulty with instructions and following directions.   The Veteran's symptoms were now so severe that he would be unable to continue to work.  Dr. SB stated that as a result of his PTSD, without regard to other factors, the Veteran was unable to gain or maintain substantial employment.

A VA MHC note dated in January 2011, signed by Dr. SB, states the Veteran presented with limited function as manifested by having to take increased time off from work.  The Veteran reported having difficulty following instructions and remembering procedures; he also did not feel able to adapt to stress as well as he had several years before.  The Veteran reported increased panic and anxiety.  Dr. SB did not record a revised GAF.

The Veteran had a VA-contracted examination on June 28, 2011, performed by a psychiatrist who reviewed the claims file to specifically include the correspondence and notes by Dr. SB.  The examiner noted the Veteran was currently working as a longshoreman, a job he had held for the past 10 years although he had worked "somewhat irregularly" because of his physical, not mental, limitations.  The Veteran's last full day of work had been five days before.  The Veteran reported having a clean work record and never having been fired from a job for cause or due to a bad attitude.  The examiner performed a mental status examination (MSE) and noted observations in detail.  The examiner assessed a current GAF of 60 (moderate mental symptoms and impairment) but stated the Veteran had moderate mental symptoms and impairment in social functioning but not occupational functioning.  The examiner stated there was no significant impairment in occupational functioning; the fact the Veteran was currently working regularly, limited only by his physical disorders, by itself confirmed the Veteran was not totally disabled mentally.

The Board's decision in May 2012 granted a TDIU effective from June 24, 2011, based on the Veteran's report during the VA examination cited above that he last worked full-time on June 23, 2011.

The Veteran's spouse submitted a letter in November 2011 asserting the VA examination in June 2011, cited above, was inaccurate in that the examiner had not recorded the Veteran's report of having been fired on one occasion and having been negatively written-up many times.  Since the examination the Veteran had been forced to leave work, with no indication as to when he would be physically able to return.  She also complained the June 2011 examination had only taken 30 minutes and lacked the depth needed to present a thorough, accurate summation of the Veteran's disability picture.

Mr. JW submitted a letter in March 2012 stating that he had been the Veteran's supervisor for 10 years, during which period there would be times when the Veteran had trouble with his assignments, appeared to be angry and aggravated and isolate himself from the group.  The Veteran would seem fine at the beginning of the shift but at least 3 times per week he would experience a slight setback.  The Veteran's co-workers were very concerned with his well-being, and there were some days when the Veteran seemed to be distant from reality.  Mr. JW's only trouble with the Veteran would be when the Veteran challenged Mr. JW's authority, and Mr. JW quite often had to pull the Veteran aside and encourage him to get help. 

Dr. SB submitted a letter in April 2012 stating that earlier that he had medically cleared the Veteran to return to work in March 2012, but the Veteran's continued PTSD symptoms rendered him unable to do so.  Dr. SB therefore requested the Veteran continue to be placed on medical leave retroactive to March 2012.

The Veteran testified before the Board in April 2012 that Dr. SB had taken him off work for six months; those six months had now expired but the Veteran did not feel he was able to go return to work.  The Veteran's spouse testified in regard to the severity of his symptoms as stated that while the Veteran was working she often had to drive him to and from work due to his psychiatric symptoms.  

The file contains payroll data from PMA recording hours worked from the fourth quarter of 2008 and ending the second quarter of 2011 (i.e., beginning December 5, 2008, and ending June 9, 2011).  These records essentially show the Veteran consistently worked 8-hour days.  The Veteran earned $71,774.95 in 2009, he earned $76, 216.21 in 2012, and he earned $40,402.20 in the first six months of 2011.

In compliance with the Board's remand the VA Originating Agency obtained the official Poverty Thresholds established by the  Department of Commerce for 2008 ($11,201.00), 2009 ($11,161.00), 2010 ($11,344.00) and 2011 ($11,702).  The  Board notes at this point that the Veteran's income during this period, as demonstrated by his PMA payroll data, greatly exceeded the poverty threshold, being 6 times the poverty threshold in 2009, 6.5 times the poverty threshold in 2010 and 7 times the poverty threshold in the first half of 2011.  The Board also notes that the Veteran's income actually rose, rather than declined, during the course of the period under review.

Review of the documentary evidence above clearly shows the Veteran demonstrably had gainful full-time employment through June 9, 2011, and the Veteran himself credibly reported having last worked full-time on June 23, 2011.  The Board finds that entitlement for TDIU cannot be granted during a period during which the Veteran was shown to be gainfully employed.  See Faust v. West, 13Vet. App. 342, 356 (2000).

The Board acknowledges the opinions submitted by Dr. SB to the effect that the Veteran was incapable of obtaining or maintaining gainful employment since October 2008.  The findings of a physician are medical conclusions that the Board cannot ignore or disregard.  Willis v. Derwinski, 1 Vet. App. 66 (1991).  However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App 614 (1992).  The record clearly shows that the Veteran was able to maintain gainful employment through June 23, 2011, Dr. SB's medical opinion notwithstanding.  The factual evidence of record accordingly contradicts the medical opinion expressed by Dr. SB.

VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence and documentary evidence cited above the Board has considered the lay evidence offered by the Veteran in the form of testimony by the Veteran and his wife before the Board and correspondence submitted to VA by the Veteran, by his wife and by Mr. JW.

The lay evidence submitted by and for the Veteran demonstrates the Veteran's service-connected PTSD had a significant impact on his occupational functioning during the period under review.  However, the Board's grant of a 70 percent disability rating for PTSD recognized the degree to which the Veteran's PTSD impaired his occupational performance prior to June 24, 2011.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), to prevail on a total rating claim the record must reflect some factor that takes the claimant's case outside the norm, and that a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment.  

In sum, the Board has found the criteria for award of a TDIU prior to June 24, 2011, are not met, and the claim must be denied.  Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


ORDER

Entitlement to a TDIU prior to June 24, 2011, is denied.





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs