Citation Nr: 1323180 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-32 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. On August 8, 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is associated with the claims file. The instant matter was previously before the Board in January 2013, at which time it was remanded for further development. Upon completion of that development, the matter was readjudicated and denied via a March 2013 supplemental statement of the case. The claim was returned to the Board that same month. FINDING OF FACT The Veteran's service-connected psychiatric disability does not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the 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, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. It is now clear that for rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010); see also Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) ("[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities."). The RO received the Veteran's application for increased compensation based on unemployability in February 2008. That same month, the RO sent to him a letter notifying him that to be entitled to a TDIU rating, the evidence must show that his service-connected disability or disabilities prevented him from performing the mental and/or physical task required to obtain or maintain substantially gainful employment. The letter further informed him of the threshold rating requirements of 38 C.F.R. § 4.16(a) and of the requirements for entitlement to a rating of TDIU on an extraschedular basis. The letter also advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include relevant records not held by any Federal agency. The letter also included the notice elements required by Dingess v. Nicholson, 19 Vet. App. 473 (2006), for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the February 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were fulfilled. Regarding the duty to assist, the Board is satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. In that regard, the Board finds that all available evidence pertaining to the Veteran's claim has been obtained. The evidence includes VA examination reports, VA outpatient treatment records, and statements by the Veteran, to include his August 2012 hearing testimony. An attempt was made to obtain the Veteran's records from the Social Security Administration, but the response received indicated that no records were available. The Veteran has not asserted that there are outstanding records relevant to the issue on appeal that VA should have obtained, nor is the Board aware of any. Further, several opinions concerning the Veteran's employability are of record. The Board is satisfied that these opinion reports, along with the medical evidence and lay testimony offered by the Veteran, provide the Board with an assessment of the Veteran's disability picture as it relates to his employability and in the context of the rating criteria. Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination II. Analysis A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more)). 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In determining whether a veteran is indeed unemployable, 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 or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Further, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Indeed, a high rating in and of itself is a recognition that the service-connected impairment makes it difficult to obtain and keep employment. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has been in receipt of service-connected disability benefits for PTSD since September 20, 2005, which disability has been evaluated as 70 percent disabling. Thus, the minimum percentage requirements for a rating of TDIU were satisfied at the time that the Veteran filed his February 2008 application for increased compensation based on unemployability. See 38 C.F.R. § 4.16(a). Notably, PTSD is the Veteran's only service-connected disability. Evidence relevant to the determination of whether the Veteran is unemployable due to his psychiatric disability includes the report of a December 2007 VA examination, which indicated that the Veteran had last worked as a ranch hand in 1968. It was noted that when the Veteran was working, he had difficulties with co-workers and with his anger. The Veteran reported that he had sustained an injury to his back in 1976 and had been receiving SSA disability benefits related to a resulting disability since 1986. The examiner indicated that the Veteran's "unemployment is secondary to [his] chronic low back pain as well as [his] paranoid tendencies, unstable personality as is documented in the records and his current depressive symptoms causing a lack of motivation, lack of energy and inability to tolerate the stress of interacting with the public." The Veteran was afforded a VA examination to evaluate the severity of his PTSD in January 2011, the report of which noted that the Veteran had not worked since 1986 on account of his nonservice-connected back disability. The examiner did not did render an opinion regarding the Veteran's ability to obtain and maintain substantially gainful employment with respect to his PTSD, although total occupational impairment was not noted. During his August 2012 hearing, the Veteran alleged that his ability to maintain employment was impacted by a "short fuse," difficulty concentrating and focusing on tasks, and anger issues. He stated that he was fired from his last job because of his "disabilities" and had been unable to secure employment since. In March 2013, the Veteran underwent VA general medical and PTSD examinations for the specific purpose of determining whether the Veteran's psychiatric disability rendered him unable to secure or maintain substantially gainful employment. Both examiners reviewed the claims folder and examined the Veteran. In relating his job history, the Veteran stated that he left his job as a ranch hand because his hands would go numb and he had problems with his feet and his knees. He indicated his belief that he is unable to work due to numbness and tingling in his hands and loss of grip strength. He also noted general aches and pains and complained of joint stiffness. The examiner stated that the Veteran's ability to engage in physical employment was impacted by his degenerative joint disease and ulnar neuropathy. A full psychiatric assessment was also performed and the report of that examination indicates that the Veteran attributed cessation of employment to his physical disabilities. Upon examination of the Veteran, the examiner assigned a GAF (Global Assessment of Functioning) score of 65, which indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994) (DSM-IV). The examiner stated the Veteran's psychiatric presentation was consistent with that of the last VA examination and found there to be no evidence of unemployability from a psychiatric standpoint. The examiner opined that the Veteran was capable of maintaining employment from a mental health perspective. Based on the evidence of record, to include the Veteran's lay assertions, the Board finds that a rating of TDIU is not warranted at any point since the Veteran filed his February 2008 application for such benefit. This is because there has been no finding by a medical professional, and the evidence does not indicate, that the Veteran's psychiatric disability precludes him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Rather, the evidence shows that the Veteran is unable engage in substantially gainful employment due to his nonservice-connected physical disabilities. Although the Veteran testified during his Board hearing that he was fired from his last job on account of his "disabilities," alluding to his PTSD, the Veteran related to both VA examiners that it was his physical disabilities that caused him to stop working. Further, while the December 2007 VA examiner attributed the Veteran's "unemployment," in part, to his psychiatric disability, the examiner did not affirmatively state that the Veteran was unemployable, as opposed to merely unemployed. As to the Veteran's lay statements regarding the occupational impact of his PTSD, the Board notes that the Veteran's PTSD is evaluated as 70 percent disabling, which necessarily contemplates some level of occupational impairment. However, as stated above, the fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. Rather, the ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, supra. The Board finds, in the instant case, that the evidence weighs against a finding that due to his service-connected psychiatric disability, the Veteran is unable to perform the physical and mental acts required by employment, as evidenced by the fact that a psychiatric examiner concluded that from a mental health perspective, the Veteran would be employable. For the foregoing reasons, the Board finds that entitlement to a TDIU rating must be denied. In reaching this conclusion, 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. See 38 U.S.C.A § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. §§ 3.102, 4.3 (2012). ORDER Entitlement to TDIU is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs