Citation Nr: 1324954 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 02-00 947A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) prior to February 27, 2007. REPRESENTATION Appellant represented by: National Veterans Legal Services Program, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. This matter comes on appeal before the Board of Veteran's Appeals (Board) on appeal of a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, in which the claim for entitlement to TDIU was denied. The Veteran appealed. In January 2007, the Veteran and his wife, R.G., testified before the undersigned Veterans Law Judge at a Central Office hearing. The Veteran was provided an opportunity to set forth her contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the hearing transcript has been associated with the claims folder. In March 2007, the Board remand the claim for TDIU to the RO (via the Appeals Management Center (AMC)) because it was inextricably intertwined with other matters, including the claim for increase rating for PTSD disability, that required additional development prior to adjudication. In March 2010, the Board awarded entitlement to TDIU based upon satisfaction of scheduler requirements, effective from February 27, 2007, and that award was implemented in a September 2010 rating decision. In January 2012, the Board awarded higher initial evaluation of 50 percent prior to February 1, 2005, and thereafter an evaluation of 70 percent for PTSD disability. In included in the consideration of increased rating for PTSD, the Board determined that entitlement to TDIU prior to February 27, 2007 was not warranted. The Veteran appealed the denial of entitlement to TDIU prior to February 27, 2007 to the United States Court of Appeals for Veterans Claims (Court). (Prior to any determination, the Veteran withdrew his appeal as to the Board's denial of higher initial evaluations for PTSD disability). The parties submitted a Joint Motion for Partial Remand (Joint Motion) in February 2013. By order dated that same month, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. Essentially, the parties instructed the Board to reexamine the evidence of record to determine whether the Veteran should be award entitlement to TDIU at any point prior to February 27, 2007. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Prior to February 1, 2005, service connection was in effect for PTSD evaluated as 50 percent disabling, and lumbar spine disability evaluated as 20 percent disabling. The Veteran does not meet the combined schedular requirements for TDIU. 2. From February 1, 2005 to February 27, 2007, service connection was in effect for PTSD evaluated as 70 percent disabling, and lumbar spine disability evaluated as 20 percent disabling. The combined total evaluation for compensation purposes is 80 percent. 3. As of February 1, 2005, the Veteran's service-connected PTSD is medically shown to cause impairment so severe that he is unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW As of February 1, 2005, the criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist With respect to the Veteran's claim for entitlement to TDIU, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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. The Veteran was provided with a notification letters in November 2004 and March 2006, which satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the March 2006 letter described how appropriate effective dates were assigned as outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the March 2006 notice letter was sent after the initial adjudication, the Board finds this error non-prejudicial to the appellant. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the subsequent notice fully complied with the requirements of 38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b), and Dingess, supra, and after the notice was provided the case was readjudicated and a March 2011 supplemental statement of the case was provided to the appellant. See Pelegrini II, supra; Mayfield, 20 Vet. App. 537 (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. The Board, therefore, finds that VA has discharged its duty to notify. For the reasons discussed above, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the claims folder. All records identified by the Veteran relating to this claim have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. The Board acknowledges that no VA examination was developed with respect to his TDIU claim for the period under appeal. However, the record does contain the reports of June 2005 and November 2006 VA psychiatric examinations as well as a March 2008 VA spine examination, in which the nature and severity of the Veteran's disabilities were evaluated by VA examiners. While these reports do not contain medical opinions on whether the Veteran's disabilities rendered him unemployable, the reports do contain assessments pertaining to the Veteran's functional impairment due to his service-connected disabilities. Moreover, the issue on appeal is whether the Veteran was entitled to TDIU prior to February 27, 2007. Thus, a remand to obtain a VA examination would serve no useful purpose, as the examiner would not be able to ascertain the extent of the Veteran's disabilities more than six years ago, based on a current examination. Importantly, the claims file contains sufficient clinical records from the pertinent time period upon which to adjudicate the Veteran's claim. See 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 Veteran are to be avoided). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. TDIU The Veteran seeks entitlement to a TDIU for the period prior to February 27, 2007. The evidence shows that the Veteran has been unemployed since 1996 and throughout the pendency of this appeal. Total disability will be considered to exist 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. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the Veteran from retaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In this regard, due consideration will be given the history of the Veteran's service-connected disabilities. 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. 38 C.F.R. § 4.16(a). Prior to the February 1, 2005, the Veteran does not satisfy the schedular requirements for consideration of a TDIU as service connection was only in affect for PTSD evaluated as 50 percent disabling, and lumbar spine disability evaluated as 20 percent disabling; his combined schedular rating was less than 70 percent. See 38 C.F.R. §§ 3.340, 4.16(a). Therefore, the c claim for TDIU prior to February 1, 2005, must be considered under the criteria of 38 C.F.R. § 4.16(b). 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. Therefore, rating boards should submit to the Director of the Compensation and Pension Service for consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards of 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91 (1991), 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) than for purposes of a TDIU claim under 38 C.F.R. § 4.16. While t38 C.F.R. § 3.321(b)(1) requires marked interference with employment, 38 C.F.R. § 4.16 requires evidence of unemployability. Kellar v. Brown, 6 Vet. App. 157 (1994). Although the Board is precluded from initially assigning an extraschedular rating, the Board may review the adjudication of an extraschedular rating once the Director of the Compensation and Pension Service determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009); Floyd v. Brown, 9 Vet. App. 88 (1996). For the reasons explained below, the Board finds that referral of the Veteran's case to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b) is not required, as the evidence of record fails to demonstrate that the Veteran's service-connected PTSD and lumbar spine disabilities rendered him unable to secure or follow gainful employment for the period prior to February 1, 2005. The evidence does not show that prior to February 1, 2005, the Veteran's PTSD symptomatology or his lumbar spine symptomatology are so severe as to preclude his employability. While in no way diminishing the obvious impact that the PTSD and lumbar spine symptomatology had on the Veteran's industrial capacity, the symptoms are already taken into consideration in the assigned ratings prior to February 1, 2005. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). As noted in the previous January 2012 Board decision, the competent lay and medical evidence demonstrated that the Veteran's PTSD disability more closely approximated the criteria associated with 50 percent prior to February 1, 2005. Collectively the preponderance of competent lay and medical evidence showed that the Veteran's PTSD disability was manifested by anxiety, depression, mild memory loss, chronic sleep impairment, changes in his motivation and mood, with increased irritability, and difficulty establishing and maintaining effective relationships. This symptomatology resulted in occupational and social impairment, with reduced reliability and productivity due to disturbances in motivation and mood and difficulty establishing and maintaining effective relationships, and supported the assignment of a 50 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. This award were not appealed by the Veteran. With regard to the Veteran's lumbar spine disability, his disability was rated as 20 precent disabling prior to February 20, 2009. During that period, the competent lay and medical evidence demonstrates that the Veteran's disability has been manifested by no more than degenerative arthritis with limitation of motion of the lumbar spine. At worst, the Veteran's forward flexion of the thoracolumbar spine was limited between 30 and 60 degrees, which supported the assigned evaluation of 20 percent, and not a higher evaluation. See 38 C.F.R. § 4.71, Diagnostic Code 5242. This assigned 20 percent evaluation included consideration of the provisions of 38 CFR §§4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995). There was also no evidence that document physician prescribed incapacitating episodes. The severity of the Veteran's lumbar spine disability was consistent with the 20 percent evaluation for degenerative arthritis with loss of motion during this period. See 38 C.F.R. § 4.71, Diagnostic Code 5242. The Board is sympathetic to the Veteran's functional impairment caused by his service-connected disabilities; however, the evidence of record does not demonstrate that his disabilities go beyond the occupation impairment considered by the regular schedular criteria. See 38 C.F.R. § 4.16(b). Moreover, the record is against a finding that he was unable to maintain substantial gainful employment prior to February 1, 2005 due to his service connected disabilities. See 38 C.F.R. § 4.16(b); see also Van Hoose, 4 Vet. App. at 361. The mere fact that the Veteran's disabilities may have an effect on his employment is not sufficient to find that he is entitled to TDIU. In order to warrant TDIU, the evidence of record must reflect that the Veteran is unable to secure and follow a substantially gainful occupation consistent with his education and occupational experience by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). The record reflects that the Veteran received a high school education as well as earned two technical trainings. He was employed last as an engineer for the VA medical center in San Juan. The competent clinical evidence of record does not reflect that he was unable to maintain substantially gainful employment of some type, consistent with his experience and training, due to his service-connected disabilities prior to February 1, 2005. While his back disability may have made lifting heavy objects, twisting, and throwing the objects difficult, the evidence does not reflect that his disabilities prevented him from other types of manual labor, machine operation, or sedentary work. In addition, the VA mental health treatment records reflect that the Veteran's PTSD symptoms have always resulted in some difficulty establishing and maintaining effective work and social relationships; however, the medical evidence does not reflect that the Veteran's symptoms seriously interfere with his employment and social functioning until 2005 and thereafter. See VA treatment record dated November 2004. The Board has considered the September 1999 Social Security Administration (SSA) determination that found the Veteran was disabled due to his psychiatric and musculosketal (including lumbar spine) disorders since January 1997. While this is relevant evidence that the Board weighs and evaluates, it is not dispositive of the issue. Indeed, each agency has its own law and regulations to consider in making such a determination. There are specific criteria governing the adjudication of claims for a TDIU that are outside those considered in the SSA determination; and as such, a finding of unemployability by SSA is not binding on VA. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000). Thus, the Board considers SSA's determination, but it is not dispositive as to the whether the Veteran is entitled to TDIU. The Board has also considered the private medical statement from Dr. H. S. T., dated in February 2002, in which Dr. T. stated that the Veteran's PTSD and associated depression caused him to be unable to engage in any type of work or occupation. However, the subsequent VA treatment records do not demonstrate that the severity of the Veteran's PTSD disability interfered with his ability to obtain and maintain employment until 2005. While Dr. T.'s 2002 medical statement has been considered, his opinion is not corroborated by the clinical findings in the subsequent clinical record as the claimant's PTSD disability showed no more than some difficulty establishing and maintaining effective work and social relationships. In addition, Dr. T. provided no rationale in support of his opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The preponderance of the evidence is against the Veteran's contention that his service-connected disabilities were of such severity, even in combination, as to preclude his participation in substantially gainful employment prior to February 1, 2005. As such, entitlement to TDIU is not warranted during that period. See 38 C.F.R. § 4.16(b). As of February 1, 2005, the Veteran was awarded a 70 percent schedular rating for PTSD and the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). The remaining question before the Board an adjudicating this appeal is therefore whether the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities at any point during the period since February 1, 2005. Id. Here, the record contains competent and credible medical evidence that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected PTSD since February 1, 2005. VA psychiatric progress notes dated in August 2005, March 2006, and September 2006 reflect the VA physician's opinion that the Veteran is not able to work or "get involved" in gainful activities. A June 2005 VA psychiatric examiner stated that the Veteran's PTSD symptomatology seriously interfered with his employability. The November 2006 VA psychiatric examiner essentially stated that the Veteran's inability to work and poor quality of life were precipitated by his PTSD symptomatology. All of the above medical evidence demonstrates that the Veteran's PTSD disability significantly impairs his ability maintain substantially gainful employment. Moreover, a contemporaneous examination for lumbar spine also noted that the Veteran's service-connected lumbar spine disability impacted his occupational functioning. See the March 2008 VA spine examination report. In light of the above, the Board finds that the evidence supports the finding that the Veteran was unable to secure or maintain a substantially gainful occupation as a result of service-connected PTSD and lumbar spine disabilities, for the period since February 1, 2005. Accordingly, entitlement to a TDIU for the period since February 1, 2005 is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102 (benefit of the doubt rule); 4.16(a) (criteria for schedular TDIU). ORDER For the period from February 1, 2005, forward, a TDIU is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs