Citation Nr: 1324221 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-18 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from April 1968 to December 1969. He is the recipient of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial rating of 30 percent. In an October 2011 decision, the Board granted the Veteran a higher initial rating of 50 percent effective September 7, 2006, which was effectuated in a February 2012 rating decision. In the October 2011 decision, the Board noted that the issue of entitlement to a TDIU was not certified for appeal, but took jurisdiction of it pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). The Board remanded such issue for additional development and adjudication. In a December 2012 rating decision and supplemental statement of the case, the agency of original jurisdiction (AOJ) denied entitlement to a TDIU and issue now returns to the Board for further appellate review. As will be discussed further herein, the Board is satisfied that the AOJ has substantially complied with the October 2011 remand directives and the Board may proceed with review of the issue of entitlement to a TDIU rating. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional VA treatment records, which have been considered by the AOJ. FINDINGS OF FACT 1. The Veteran is service-connected for PTSD, rated as 50 percent effective September 7, 2006; ischemic heart disease, rated as 10 percent effective August 31, 2010; and hypertension, rated as noncompensable effective October 6, 2011, with a combined evaluation of 50 percent as of September 7, 2006, and 60 percent as of August 31, 2010. 2. The Veteran is not precluded from securing or following substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a March 2012 letter detailed the elements of a TDIU claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such evidence and information. The March 2012 letter also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The Board notes that the Veteran's claim of entitlement to a TDIU rating was readjudicated after the March 2012 letter by the December 2012 rating decision and supplemental statement of the case, thus curing any timing defect. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006) (VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter); Prickett v. Nicholson, 20 Vet. App. 370 (2006) (the issuance of a statement of the case could constitute a readjudication of the Veteran's claim). Relevant to the duty to assist, the Veteran's post-service VA treatment records have been obtained and considered. He has not identified any additional, relevant records that have not been requested or obtained. In this regard, the Board notes that, pursuant to the Board's October 2011 remand, additional VA treatment records dated through July 2012 were associated with the Veteran's Virtual VA file. While the December 2012 rating decision and supplemental statement of the case pertinent to the Veteran's TDIU claim did not explicitly reference such records, such were considered in the rating decisions that addressed the severity of the Veteran's service-connected disabilities. Moreover, the December 2012 documents included consideration of the August 2012 and November 2012 VA examination reports, which referenced the Veteran's electronic VA treatment records. Furthermore, such records do not specifically address the impact his service-connected disabilities have on his employability. Therefore, the Board finds that, as the AOJ essentially considered such records and they are not directly relevant to the question of employability, a remand for the issuance of a supplemental statement of the case is not necessary. Additionally, the Veteran was afforded VA examinations in February 2012, August 2012, and November 2012 in order to determine the impact his service-connected disabilities have on his employability. Neither the Veteran nor his representative has alleged that the examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the impact the Veteran's service-connected disabilities have on his employability as they include an interview with the Veteran, a review of the record, and a full physical examination addressing the relevant rating criteria. Furthermore, the opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Consequently, the Board finds that the examinations of record are adequate to adjudicate the Veteran's TDIU claim and no further examination is necessary. As indicated previously, the Board remanded this case in October 2011 in order to provide the Veteran with proper VCAA notice with respect to his TDIU claim, afford him an opportunity to identify any outstanding treatment records and obtain any identified records, to include additional VA treatment records, and adjudication his claim. As noted above, the AOJ sent the Veteran a VCAA-compliant letter in March 2012 and the letter also directed him to identify any additional relevant medical treatment records from either private or VA facilities. In a June 2012 letter he stated that he only received VA medical treatment and no private medical treatment. In addition, VA treatment records dated through July 2012 were obtained and associated with the Veteran's Virtual VA paperless claims processing system. Finally, the Veteran's TDIU claim was adjudicated in the December 2012 rating decision and supplemental statement of the case. Thus, the Board finds that the requested development has been completed and no further action to ensure compliance with the remand directive is required. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent schedular evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of this analysis, disabilities affecting a single body system, such as the cardiovascular-renal system, will be considered a single disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In this case, the Veteran is service-connected for PTSD (rated as 50 percent disabling effective September 7, 2006), ischemic heart disease (rated as 10 percent disabling effective August 31, 2010), and hypertension (rated as noncompensable effective October 6, 2011). The Veteran's combined evaluation is 50 percent disabling from September 7, 2006, and 60 percent disabling since August 31, 2010. As the Veteran's ischemic heart disease and hypertension affect a single body system, i.e., the cardiovascular-renal system, such may be considered a single disability for TDUI purposes. However, such disability in combination only results in a 10 percent rating. As such, the Veteran does not meet the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases, 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). The Veteran asserts that he is entitled to a TDIU rating because he cannot work as a result of his service-connected disabilities, specifically, his PTSD. On his March 2012 TDIU application, he reported his most recent employment as a truck driver working 60+ hours a week from February 1995 to December 2007, when he retired. He indicated that he was rendered unemployable by his PTSD with anxiety and depression, ischemic heart disease, coronary artery disease, and fatigue. The Veteran further reported completing one year of college without additional training. Additional evidence in the claims file reflects that the Veteran worked as a truck driver for 35 years. A VA record dated in August 2006 documents the Veteran's complaints of isolation, hypervigilence, intrusive memories, and anxiety. It was noted that he had some decrease in irritability. It was also observed that the Veteran enjoyed spending time with his wife and children and was employed as a truck driver. The Veteran reported taking Celexa and Trazodone. A VA examination was conducted in November 2006 and the claims folder was reviewed. The Veteran's complaints included: problems with anger; intrusive thoughts; irritability; hypervigilance; nightmares; restricted range of emotional responsiveness; isolation; and depressed mood. He reported that by staying focused on his job and working extra hours, he was able to reduce some of the intrusive recollections of combat in Vietnam. At the Veteran's September 2010 VA mental health examination, it was noted that he had problems with sleep latency and maintenance and only slept one to three hours uninterrupted. He also napped during the day and felt tired and lacked energy throughout the day. When he was working as a truck driver he would have his wife call him at 30 minute intervals to make sure he was awake while driving. It was noted that the Veteran retired from his job as a truck driver because of these difficulties and his age. It was further noted that the Veteran experienced anxiety and "road rage" but preferred to work as it provided him with social isolation and some mental distractions from intrusive memories of his military service. The Veteran was afforded a February 2012 VA examination for his ischemic heart disease. It was noted that he was diagnosed in December 2009 and that he was on continuous medication for it. It was determined that it did not affect his ability to work. At the August 2012 VA chronic fatigue examination, it was noted that the Veteran was retired as a truck driver because of medical/physical problems with sleep apnea as the only disability listed. At another August 2012 VA examination, it was noted that the Veteran's hypertension or isolated systolic hypertension did not impact his ability to work. It was determined at the November 2012 VA PTSD examination that the Veteran's PTSD symptomatology was best summarized as being manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. His PTSD symptomatology was manifested by suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances including work or a work like setting. He worked for 35 years as a truck driver and retired in 2007 because he was having problems with his mental disorder and his sleep apnea in that he could not rest at night and thus, was too sleepy the next day. He also had strong words with some drivers that could lead to fighting. After a careful review of the Veteran's claims file, the Board finds that the Veteran is not entitled to a TDIU. As noted above, the Veteran is currently service-connected for PTSD, ischemic heart disease, and hypertension. The Board acknowledges that he has alleged that his sleep apnea and fatigue are the result of such disabilities; however, the RO has denied service connection for obstructive sleep apnea (April 2007 and December 2010 rating decisions), dizziness and fatigue (May 2009 rating decision), and chronic fatigue (August 2012 rating decision), to include on secondary bases. Moreover, the evidence of record establishes that he is currently unemployed as a result of his nonservice-connected disabilities, specifically, his sleep apnea and resulting fatigue. With respect to the Veteran's education and experience, the record reflects that he has completed one year of college and worked as a truck driver for 35 years. As such, the relevant inquiry is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. It was stated at the February 2012 and August 2012 VA examinations that the Veteran's service-connected ischemic heart disease and hypertension, respectively, did not affect his ability to work. The Board notes that the Veteran's representative, in his June 2013 Appellant's Post-Remand Brief, alleges that the Veteran's ischemic heart disease requires extra-schedular TDIU consideration as such requires catheters in both the left and right coronary arteries and results in a multitude of diagnoses; however, the Board finds such argument to be without merit as the February 2012 VA examiner considered the functional impairment associated with such disease and found that such did not affect the Veteran's ability to work. Moreover, the Board finds that these are the only opinions of record for the Veteran's service-connected ischemic heart disease and hypertension as it relates to his ability to work. Furthermore, the examiners offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consequently, the Board assigns great probative value to the VA examiners' opinions. Thus, the Board finds that the Veteran's service-connected ischemic heart disease and his service-connected hypertension do not affect his ability to work. The Veteran is also service-connected for PTSD and, while the November 2012 VA examiner stated that his symptomatology was best summarized as being manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, he also noted that the Veteran reported that he was too sleepy to drive as a result of both his PTSD and his sleep apnea (emphasis added). Moreover, at the September 2010 VA examination it was noted that the Veteran retired as a result of difficulties with sleep and his age. In addition, at the August 2012 VA chronic fatigue examination, it was observed that he retired as the result of his sleep apnea. While the November 2012 VA examiner noted that the Veteran had reported that he was too sleepy to drive as a result of both his PTSD and his sleep apnea, in November 2006, the Veteran reported that working helped with his PTSD symptoms. Specifically, he indicated that, by staying focused on this job and working extra hours, he was able to reduce some of the intrusive recollections of combat in Vietnam. Moreover, in September 2010, while the Veteran reported experiencing anxiety and "road rage" while working, he preferred to work as it provided him with social isolation and some mental distractions from the intrusive memories of his military service. Such evidence suggests that working actually helped the Veteran manage his PTSD symptoms. Therefore, the Board finds that the Veteran is not unemployable solely because of his service-connected disabilities but rather, as a result of his nonservice-connected disabilities, to specifically include his sleep apnea and resulting fatigue. The sole fact that a Veteran is unemployed or has difficulty finding employment is not enough to award TDIU, since a high compensation rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. In this regard, the Board notes that the Veteran has been awarded a 50 percent rating in light of the social and occupational impairment caused by his PTSD. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant could find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As indicated above, despite some limitations imposed by his service-connected PTSD, the weight of the probative evidence is against a finding that the Veteran's service-connected disabilities solely would prevent him from employment when considering his education and experience. Furthermore, the Board finds that the Veteran is not competent to opine on a complex medical question such as the impact his service-connected disabilities have on his ability to work. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (a claimant is not competent to provide evidence as to more complex medical questions); Jones v. West, 12 Vet. App. 460, 465 (1999) (where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). In this regard, the competent medical evidence offering detailed specific findings pertinent to the criteria governing the award of a TDIU is the most probative evidence with regard to evaluating the impact of the Veteran's service-connected disabilities on his employability. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and the impact of the service-connected disabilities on the Veteran's employability. In sum, the evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. A TDIU is limited to consideration of service-connected disabilities; however, in this instance, the Board finds that it is the Veteran's nonservice-connected disabilities, specifically his sleep apnea and resulting fatigue, that interfere with his ability to work in a position commensurate with his education and experience, i.e., as a truck driver. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for a TDIU rating must be denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A TDIU is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs