Citation Nr: 1323566 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-19 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability for the period prior to November 17, 2010. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to July 1968, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the benefit sought on appeal. The Veteran testified at a hearing before the undersigned in March 2010. A transcript of that hearing is of record. In September 2010, the Board remanded the Veteran's claim on appeal for further development. In an October 2011 rating decision, the RO awarded the Veteran a 100-percent disability rating for his service-connected posttraumatic stress disorder (PTSD), effective November 17, 2010. The Board notes that the Veteran has been found eligible for special monthly compensation at the housebound rate. Consequently, only the period listed on the title page remains on appeal. FINDINGS OF FACT 1. Prior to November 17, 2010, service connection was in effect for PTSD, rated as 50-percent disabling as of September 14, 2006; for prostate cancer, status post-operative prostatectomy with residual incontinence and chronic cystitis, rated as 60-percent disabling as of September 14, 2006; for type II diabetes mellitus, rated as 10-percent disabling as of July 22, 2010, and for erectile dysfunction associated with the service-connected prostate disability, rated as noncompensable. 2. The evidence of record indicates that the Veteran was found to no longer be working at the time of his July 2008 VA PTSD examination. 3. The Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU from June 22, 2008 to November 17, 2010 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. See 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in August 2007 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above with respect to his TDIU claim. Regarding the duty to assist, the RO has obtained the Veteran's VA and private treatment records, and has provided him with multiple VA examinations. Moreover, while the Veteran was asked in an October 2010 letter from the Appeals Management Center (AMC) to provide information regarding treatment for his service-connected disabilities, including any treatment records from Dr. J. N. Kabalin, or to otherwise provide authorization for VA to obtain copies of his treatment records on his behalf, he did not respond. He additionally failed to respond to a request for additional information with respect to his employment history, including rejections of employment and beginning and ending dates of periods of employment. Additionally, the Board notes that the evidence of record, including the most recent October and November 2011 VA examination report, adequately describes the current level of severity of the Veteran's service-connected disabilities and his capacity for obtaining and maintaining substantially gainful employment. Therefore, VA's duty to provide a thorough and contemporaneous VA examination has been met in this case. As such, the Board finds that no prejudice results to the Veteran in adjudicating his TDIU claim on the evidence of record, as this evidence adequately addresses the pertinent rating criteria and is sufficient for the Board to consider the effects of his service-connected disabilities on his employability. Moreover, the Board is satisfied that the RO/AMC substantially complied with the Board's September 2010 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board remanded the Veteran's claim to obtain additional copies of his treatment records, to include records of his treatment provided by Dr. Kabalin, to obtain additional information regarding his employment history, and to schedule him for a VA examination to determine the impact of his service-connected disabilities on his employability. As noted, the Veteran did not respond to the October 2007 letter from the AMC with respect to his private treatment records and his employment history. The Veteran was afforded additional VA examinations in November 2010, in substantial compliance with the Board's remand directives. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that VA employees, including Board personnel, have two duties in conducting hearings. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's March 2010 Board hearing, the issue on appeal was adequately identified, and the undersigned and the Veteran's representative asked specific questions directed at identifying outstanding evidence that could substantiate his TDIU claim. He was asked about his employment history and regarding his ability to seek employment. In short, he was asked questions aimed at eliciting evidence that he met the requisite criteria for a TDIU. Information provided at the March 2010 hearing lead to the Board's remand to seek additional evidence and to schedule him for VA examinations to obtain opinions regarding the effects of his service-connected disabilities on his employability. As such, the Bryant duties were met. The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating this claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this claim on appeal. II. Entitlement to a TDIU The Veteran contends that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. A. Governing Law and Regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. §§ 3.321(b), 4.16(b) (2012). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). 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). 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 the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Additionally, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation "that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income..." B. Analysis The Veteran was granted a 100-percent disability rating for his service-connected PSTD, effective November 17, 2010. Prior to the award of the Veteran's 100-percent disability rating, service connection was in effect for PTSD, rated as 50-percent disabling, effective September 14, 2006; for prostate cancer, status post prostatectomy with residual incontinence and chronic cystitis, rated as 60-percent disabling, effective September 14, 2006; for type II diabetes mellitus, rated as 10-percent disabling, effective July 22, 2010; and for erectile dysfunction associated with the service-connected prostate disability, rated as noncompensable. A review of the record reveals that the Veteran's primary employment over the last several years has consisted of working on a ranch that he owned. As such, there is some inconsistency in the record with respect to when he stopped working or became too disabled to work. In his July 2007 TDIU claim, the Veteran reported that the date he last worked full-time was in 2000. He reported he became too disabled to work that year. He specifically noted that he had not worked for the preceding six years and that he had to give up farming due to his medical conditions. In contrast, an October 2006 VA psychiatric clinical consultation report, dated prior to the Veteran's TDIU claim, indicated that the Veteran worked on a ranch that he owned, and that he had a high school education with a higher education degree in accounting. The Veteran reported feeling very frustrated because he had rheumatoid arthritis and could not do his ranching work. He reported trying to let his son take over, but that he was finding it very hard to do so. During a June 2007 VA mental health examination, the Veteran was diagnosed with PTSD related to his active service. The Veteran was noted to have moderate-to-severe difficulty in his social functioning. He reported to the examiner that he would prefer to be by himself working, rather than engaging in "frivolous activities." The examiner noted that the Veteran had used work to, inter alia, manage his PTSD symptoms. The examiner opined that it was not believed that the Veteran's PTSD affected his employment. The examiner noted, rather, that the Veteran's PTSD made him reliant upon work and had likely made him an extremely effective employee. The Veteran was later afforded a general VA examination specifically with respect to his TDIU claim in October 2007. With respect to the effects of the Veteran's PTSD on his employability, the VA examiner cited to findings made in the June 2007 VA examination report and further noted that there were no deficits of his work performance related to PTSD. The examiner concluded, therefore, that the Veteran's service-connected PTSD did not limit his ability to work. With respect to the service-connected genitourinary disability, the examiner noted that the Veteran had residual urinary frequency and incontinence following his radical prostatectomy. He also had problems with recurrent cystitis. Thus, the examiner opined, any work environment would need to allow for frequent bathroom breaks, as many as one or two in an hour. The examiner further noted that because of his cystitis and the need for treatment with antibiotics, he would not be a candidate for employment in a remote job location that did not have ready access to medical facilities. The examiner additionally noted that the Veteran had longstanding rheumatoid arthritis that had been reported as severe. The examiner noted that while the condition was not service-connected, it affected his ability to work in occupations requiring more than light physical activity. Additionally, associated problems with fatigue would contribute to make it difficult for the Veteran to engage in a full-time work week in even a sedentary job. Finally, the examiner noted that while the Veteran had diagnoses of headaches, depression, and hypertension, the record did not show that these conditions were sufficiently severe as to affect his ability to work. Unfortunately, the October 2007 VA examination report did not clearly indicate whether or not the Veteran was still engaged in employment. Moreover, the VA examiner did not provide an opinion with respect to whether the Veteran's service-connected disabilities, in the aggregate, prevented him from securing or following substantially gainful employment. In his February 2008 notice of disagreement, the Veteran reported that he felt that his service-connected prostate cancer, status post prostatectomy with residual incontinence and chronic cystitis, played a larger role in making him unemployable, due to his incontinency and always having to go to the restroom. He reported that his service-connected PTSD made it difficult for him to be around people and made it difficult for him to handle stressful situations. The discrepancy regarding the Veteran's employment status was further exacerbated by a February 2008 VA primary care report which noted that the Veteran was unsure whether he could attend an appointment the following day because he may be calving. A subsequent March 2008 VA psychiatric clinical report also noted that the Veteran was busy calving. The Veteran was afforded a new VA PTSD examination in July 2008. The examiner noted that in November 2007, the Veteran leased his ranch to his son. The Veteran reported that he had not had any substantially gainful employment since his prior examination in June 2007. The Veteran reported to the examiner that he was retired and that he no longer worked because of his physical health problems. He reported, however, that the transition from being able to work to being retired had been difficult for him. After reviewing the current severity of the Veteran's service-connected PTSD, the examiner indicated that the Veteran's PSTD did not interfere with his occupational functioning. During an August 2008 VA psychiatric clinical consultation, the VA clinician noted that the burden of work for the Veteran was intolerable because of rheumatoid arthritis pain. In support of his TDIU claim, the Veteran additionally submitted a January 2010 statement from John N. Kabalin, M.D., noting the severity of his urologic problems. Dr. Kabalin noted that as a result of his service-connected prostate cancer disability, the Veteran had suffered disabling urinary incontinence, recurrent urinary tract infections and life threatening sepsis, which had required hospitalization on more than one occasion. He further noted that the Veteran had needed treatment for kidney stones and urethral strictures. While Dr. Kabalin noted that all of these complications had significantly interfered with the Veteran's activities of daily living, he neglected to provide a clear opinion regarding the Veteran's employability. During his March 2010 Board hearing, the Veteran testified that his normal occupation was ranching. He reported that he had worked as a rancher for many years, but that he was no longer working. He reported that he leased his ranch out approximately six or seven years before. He indicated that he was not working at the ranch at all. He further testified that he had attempted to look for other employment but that he was refused a position as a night watchman because he needed to use the bathroom so frequently and was thus considered to be unable to the job adequately. He additionally reported being let go from a position as a truck driver because he had to stop too frequently for bathroom breaks, thus taking too long to complete his work. He additionally reported that he was afraid to be around people because of the smell associated with his frequent urinary incontinence. He reported that this condition additionally contributed to the severity of his PTSD. With respect to his rheumatoid arthritis, the Veteran testified that he was not disabled to such a degree that he could not still do certain things. At his hearing, the Veteran submitted a statement from his wife indicating that his incontinence problem prevented employment because his incontinence related accidents either required him to leave work to change his clothes after an accident or would otherwise make it embarrassing for him to work around others after an accident. In addition, she noted that could not find an employer who would allow continual restroom breaks because it affected his productivity. Following the Board's September 2010 remand of his appeal, the Veteran was afforded new VA examinations in October and November 2010 to determine the effects of his service-connected disabilities on his employability. During an October 2010 VA genitourinary tract examination, the Veteran reported that his current symptoms included urinating approximately every 10 to 15 minutes, and that he had constant dribbling between voiding. The examiner additionally noted that he had a history of recurrent cystitis and that this was complicated by the immune suppressive medications that he took for rheumatoid arthritis. He additionally had frequent urinary tract infections. The examiner noted that the record apparently indicated that the Veteran had been unemployed since 2006. He noted however, the Veteran lived and worked on his ranch but that he had an employee that performed a majority of the work. Following examination of the Veteran, the examiner opined that the Veteran would be employable in a position that allowed easy and ready access to toilet facilities. He further noted that the Veteran should have access to adequate amounts of fluids to maintain fluid intake. He could not, however, work in remote areas with limited access to medical attention/care, as he may need such care to treat potential urinary tract infections with antibiotics due to his increased risk. During a November 2010 PTSD examination, the VA examiner noted that the Veteran had inherited his family's ranch and that he had worked on the ranch all of his adult life. The examiner noted that the Veteran had retired in approximately 2005. The examiner indicated that he could no longer do laborious tasks due to symptoms of arthritis. The examiner further noted that, in addition, the Veteran's severe depression would prevent him from maintaining employment. Here, the examiner also noted that the Veteran's depression and panic disorder were likely secondary to his PTSD, as his depression and been present since his separation from service in 1968. He additionally noted that panic attacks commonly occurred secondary to PTSD. The VA examiner further noted that the Veteran's depression was likely worsened, inter alia, by his incontinence, loss of functioning, and frequent infections and invasive procedures associated with his status post-operative prostate removal. During the examination, the Veteran acknowledged symptoms of depression at a severe level to include transient psychoses, as well as panic attacks about twice weekly. The examiner gave his opinion that the Veteran's functioning had been overestimated by past examiners due to underreporting by the Veteran. The examiner further opined that the Veteran's PTSD and depression resulted in total social and occupational impairment, due to persistent hallucinations, panic attacks triggered by almost any social contact, suppressed cognitive functioning, intense anxiety, and constant fatigue. Based on the foregoing, and most especially the November 2010 VA PTSD examiner's thorough opinion that the Veteran's PTSD with associated depression resulted in total occupational impairment, and clear lay and medical evidence of regarding the severity of the Veteran's service-connected genitourinary disability, the Board finds that evidence supports a finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. As noted previously, the record provides somewhat conflicting evidence with respect to when the Veteran became unemployable or otherwise last worked. While the Veteran reported in his TDIU claim that he had not worked full-time since the year 2000, he later indicated during his October 2010 VA examination that he had only been unemployed since 2006. While it is unclear at what point the Veteran's work could have been considered no longer substantially gainful, the medical evidence of record suggests that the Veteran stopped working at even a later date. Although it is unclear whether he was engaged in substantially gainful employment, VA clinical consultations in October 2006, February 2008 and March 2008 clearly indicated that he was still working on his ranch, at least to some degree. Specifically, the February 2008 and March 2008 reports noted that he was still engaged in calving. Presumably based on the Veteran's own reports, the July 2008 VA examination report noted that he had not had any substantially gainful employment since June 2007. In contrast, however, his July 2007 VA mental health examination report indicated that he was using work to manage PTSD symptoms, thus suggesting that he still performed a substantial amount of work. Nonetheless, the Board finds that the July 2008 VA examination report provided the first clear indication that the Veteran was no longer working. The contemporaneous report noted that the Veteran had leased out his ranch in November 2007. While the Veteran's indicated in his March 2010 Board hearing that he leased out the ranch in approximately 2003 or 2004, this report is contradicted by the more reliable, contemporaneous indication made to the July 2008 VA examiner, that he leased out his ranch in November 2007. Moreover, although it is clearly reasonable to believe that the Veteran had leased out his ranch to his son in November 2007, the contemporary medical evidence also suggests that he remained employed on the ranch, at least to some degree, until at least March 2008, at which time he was still doing calving. Furthermore, while the July 2008 VA examination report noted that the Veteran's PTSD symptoms did not interfere with his occupational functioning, the Board finds that this would not disturb a finding that his service-connected disabilities in the aggregate rendered him unemployable as of that time. Notably, when considering the severity of his service-connected genitourinary disability combined with his service-connected PTSD, the evidence would at least be in equipoise with respect to his employability at that time. In such a case, the Veteran must prevail. See 38 U.S.C.A. § 5107(a) (West 2002). Accordingly, without a clear indication of a prior date of employability, the Board finds that the evidence of record shows that the Veteran was no longer working as of the date of his July 2008 VA examination. Thus, a TDIU is warranted as of the date of that examination. In making this finding, the Board again notes that following the September 2010 remand of his claim, the Veteran was asked to provide evidence regarding potential employers that denied him employment, and more specific evidence pertaining to his periods of employment, including specific beginning and ending dates, and times lost due to incapacity. The Veteran, however, failed to respond to this request. As such, the Board has been left to decide this claim on the existing evidence of record. This evidence fails to clearly show that the Veteran was unemployable or unemployed prior to July 2008. Overall, the Board has resolved all doubt in favor of the Veteran and has determined that the criteria for entitlement to TDIU were met from July 22, 2008 (the date of the VA examination report which first clearly indicated that he was no longer working) until November 17, 2010. See 38 C.F.R. § 3.400(o) (2012) (in cases involving increases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to a TDIU is granted for the period from July 22, 2008 until November 17, 2010. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs