Citation Nr: 1327473 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 08-07 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had active duty service from October 1954 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in Denver, Colorado. The Veteran testified before the undersigned in an August 2010 Travel Board hearing. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was previously before the Board in March 2011 and in March 2013. It was remanded both times for additional evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT 1. Prior to December 28, 2008, and from March 1, 2009, to August 31, 2010, the percentage requirements for TDIU under section 4.16(a) of VA regulations were not met, and there was insufficient evidence that the service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. 2. From August 31, 2010, the percentage requirements for TDIU under section 4.16(a) of VA regulations were met, and the evidence indicates that the service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation CONCLUSION OF LAW 1. Prior to August 31, 2010, the criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16(a), (b) (2012). 2. From August 31, 2010, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16(a), (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS TDIU criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a "substantially gainful" occupation (i.e. work which is more than marginal, that permits the individual to earn a "living wage," 38 C.F.R. § 4.16(b) (2012); Moore v. Derwinski, 1 Vet. App. 356 (1991), as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more 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). In determining whether the schedular threshold is met, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor if applicable, are considered one disability. Id. Disabilities resulting from common etiology or affecting a single body system are also considered one disability. Id. Entitlement to TDIU requires the presence of an impairment so severe that it is impossible for the average person to 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 non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Throughout the appeal, service connection has been in effect for posttraumatic stress disorder (PTSD), pes planus, tinnitus, and bilateral hearing loss. The Veteran was assigned a temporary total rating for PTSD from December 28, 2008, to March 1, 2009; he is otherwise consistently assigned a 50 percent rating for PTSD. Prior to August 31, 2010, the Veteran is additionally assigned a noncompensable rating for pes planus and hearing loss and a 10 percent rating for tinnitus, for a combined rating of 60 percent. From August 31, 2010, the Veteran is additionally assigned a 30 percent rating for pes planus, a 10 percent rating for tinnitus, and a 10 percent rating for hearing loss, for a combined rating of 70 percent. Thus, the schedular threshold percentage requirements for entitlement to a TDIU rating under section 4.16(a) of VA regulations were met as of August 31, 2010. Analysis Associated with the claims file are several pieces of medical evidence which address the question of the Veteran employability with regard to his service-connected disabilities. A December 2006 VA examination record reflects diagnoses of PTSD and mood disorder. The examiner indicated that the Veteran appeared to be slightly improved in social activities since his last examination and concluded that the Veteran's occupational impairment had been moderate. In the examiner's opinion, that there was no psychological reason the Veteran could not hold a job. A global assessment of functioning (GAF) score of 58 was assigned. VA treatment records indicate that the Veteran participated in an inpatient PTSD program from December 2008 until February 2009. Records from during that time indicate that the Veteran reported some sleep difficulties, but he was attentive during classes and participated appropriately. The Veteran also reported that as a result of the program, he was focusing better and his irritability was reduced. The Veteran denied suicidal or homicidal ideation but did report some ongoing cognitive problems. The records indicate that the Veteran's GAF score was 38 on admission to the program and 43 on discharge. A VA psychiatric examination was conducted in February 2009. During that examination, the Veteran reported that the PTSD inpatient program had been very helpful. The Veteran reported that he had not worked since his retirement in 1998. Mental status examination was conducted. The examiner found that the Veteran continued to report he had intrusive thoughts and nightmares of Vietnam and snakes. He endorsed symptoms of hyperarousal and avoidance/isolating. He reported irritability and was working on anger management. The symptoms were continuous. The examiner opined that the symptoms were in the mild to moderate range. The Axis I diagnosis was PTSD with depressive features. A GAF score of 60 was assigned. The examiner found that the Veteran had mild to moderate symptoms including flattened affect and few friends. He was retired but, based on the examiner's judgment of his interactions with the Veteran, if the Veteran were to work in a sedentary position, he would be able to do so psychologically. Later it was written that the Veteran could perform sedentary work that was routine. In support of his assessment, the examiner noted that the Veteran's symptoms included flattened affect, few friends, irritability, sleep disturbance and anger problems but did not include more severe symptoms such as suicidal ideation, obsession, rituals which interfere with routine function, illogical or abnormal speech patterns, difficulty with spatial orientation or impaired impulse control. On VA foot examination in February 2009, it was noted that the Veteran's civilian career consisted of instructing trainees in management. He retired in 1998 due to length of service and not due medical reasons. His service-connected pes planus did not contribute to the Veteran's decision to retire. The Veteran reported that his feet were rarely pain free and he was unable to perform his prior occupation as an instructor because that required a great deal of standing, which he was no longer able to do. He could walk for approximately two blocks before he had to stop to rest. Standing was limited to less than thirty minutes. Physical examination was conducted. Bilateral pes planus was diagnosed. With regard to employability, the examiner opined that the Veteran would be restricted from employment requiring any hard impact activities regarding the feet, such as running, stair climbing, prolonged standing or prolonged walking. At the time of a February 2009 VA audio examination, the Veteran reported that his hearing loss and tinnitus affected his occupational functioning and his activities of daily living. Audiometric testing was interpreted as revealing mild to severe sensorineural hearing loss bilaterally. The examiner wrote that it could be expected that hearing loss may result in some difficulty with understanding speech in noisy settings or over the phone. The examiner opined that, with amplification and with reasonable accommodations as specified in the Americans with Disabilities Act, the Veteran's hearing loss should not significantly affect vocational potential or limit participation in most work activities. VA treatment records dating in March 2009 indicate that the Veteran underwent cognitive testing. During that evaluation, the examiner noted that the Veteran had some impairment of memory and concentration. However, based on the results of neuropsychological testing, the examiner stated that the Veteran might be experiencing the early stages of dementia and that the Veteran's deficits in executive functioning were not likely caused by psychological factors, including PTSD. At the time of an April 2009 VA mental disorders examination, the Veteran reported that he was unemployed with his last position held in 1998 when he was in civil service and he worked as a training supervisor at Lackland Air Force Base. The Veteran stated that he held this position for approximately 4 years. He stated that he has been a training instructor in the area of logistics since 1968. Difficulties on the job reported by the Veteran include difficulties with patients, anger management, and becoming involved in verbal altercations approximately 2-3 times per week. Mental status examination was conducted. The Axis I diagnoses were PTSD and cognitive disorder not otherwise specified. The examiner wrote that he would have to resort to mere speculation in order to link the cognitive disorder not otherwise specified to active duty. The examiner opined that the Veteran was able to be employed from a psychiatric standpoint. He would require loose supervision and should not work closely with others or with the public as the Veteran had a history of verbal altercations on the job. The examiner opined that the Veteran had moderate symptoms of PTSD. He found the Veteran experienced intrusive thoughts, nightmares, avoidance of crowds, sleep disturbance, anger, and irritability. A GAF of 60 was assigned for both mental disorders. A June 2010 Vet Center report indicates that the Veteran had "severe" PTSD and that he was "unable to work due to his chronic PTSD symptoms." The report indicates that the Veteran symptoms caused him to be incapable of any employment including working in a loosely supervised situation requiring little or no interaction with the public. The report adds that the Veteran continued to experience marked restriction of activities of daily living as well as poor social functioning. The Veteran testified before the undersigned in August 2010 that his socialization was very limited as he preferred to stay in his basement. He had problems controlling his anger and irritability. A VA hearing loss examination was conducted in December 2011. Hearing loss and tinnitus were diagnosed. The Veteran reported that his tinnitus interfered with his concentration. A VA foot examination was conducted in December 2011. The Veteran reported painful feet. Pes planus was diagnosed. The examiner opined that the Veteran's flatfoot condition would not impact his ability to work. The rationale was that the Veteran was retired and this was not due to pes planus. In May 2012, another letter which addresses the Veteran's employability was written by the VA psychiatrist and a VA social worker who wrote the June 2010 letter. It was written that the Veteran continued to struggle with ongoing PTSD symptoms including hyperarousal, avoidance and intrusive symptoms. The symptoms continued to be chronic and severe. The Veteran struggled with daily anger and irritability. He had severe anxiety on a daily basis. He was isolative and minimized contact with the public in an effort to avoid becoming angry and having a confrontation. He was chronically irritable. It was opined that the Veteran was not employable, even in a loosely supervised environment with little or no contact with the public. The Axis I diagnoses were PTSD and major depressive disorder. A GAF score of 48 was assigned. A June 2012 PTSD examination is of record. The Veteran reported he last worked in 1998 as an instructor and training manager for the Department of Defense. He retired when he could and attributes some of the urge to retire due to some irritability and anger management problems. He denied any disciplinary actions or significant negative feedback prior to his retirement. The Veteran reported hyperarousal, re-experiencing of traumatic events and avoidance behaviors. He had a many year history of problems with his temper. He chronically argued with his wife. Sometimes she would aggravate him so much that he wanted to strike out but he had not done so. He denied physical violence of any kind. He took anger management classes which must have helped a little according to him as otherwise he would have been in jail. The Veteran was more comfortable around other Veterans as opposed to civilians. The Axis I diagnoses were PTSD, mood disorder as likely as not caused or related to PTSD and cognitive disorder not otherwise specified which is less likely than not due to PTSD. The GAF score for the PTSD and related mood symptoms was 53. The examiner opined that the PTSD and mood related service connection caused a moderate level of impairment. The examiner found that the Veteran retained the cognitive and emotional capacity related to his mental disorders in which he would be able to sustain routine tasks in a limited setting. The Veteran would be best employed in a setting in which he would have limited contact with the public and loose supervision. He had done well in settings of interacting with other veterans but civilians were more difficult for him. An April 2013 addendum to the June 2012 VA PTSD examination is of record. The examiner noted that he was tasked with providing an opinion as to the Veteran's employability with regard to his PTSD. The examiner reported that, after review of the records, his prior opinion regarding employability of the Veteran continues. The opinion was exclusive of the cognitive disorder not otherwise specified which was less likely than not related to the Veteran's military service and most likely secondary to age related decline. The examiner found the Veteran retained the cognitive and emotional capacity to sustain work tasks in a limited setting in which he would have little or no contact with peers, supervisors, or the public. This was primarily due to PTSD and mood related irritability and some history of verbal conflict. PTSD and mood disorder, alone, would not preclude the Veteran from securing or following substantially gainful employment consistent with his education and experience. In April 2013, a VA physician prepared an addendum to the December 2011 examination report. He reported that he had reviewed the evidence in the claims file in order to form an opinion as to the effects the Veteran's service-connected disabilities have on his employability. It was the examiner's opinion that, with regard to all of the Veteran's service-connected disabilities of pes planus, hearing loss, tinnitus, and PTSD, the Veteran was able to obtain and maintain gainful employment. The rationale was that the Veteran is able to do sedentary work. His pes planus would not prevent sedentary work. The Veteran was a teacher and it was observed that teaching can be done from a sedentary position. The Veteran was able to hear well enough to work with amplification. The Veteran's PTSD did not impair his cognitive or emotional capacity such that he cannot do routine tasks in a limited setting. His tinnitus did not impair his concentration such that he has not retained his cognitive capacity to work due to tinnitus. An addendum to the December 2011 hearing loss examination was prepared in April 2013. The examiner opined that the Veteran would have some difficulty understanding speech in a quiet environment and significant difficulty in a noisy environment. With amplification and reasonable accommodation, the hearing loss alone should not significantly affect the Veteran's vocational potential or limit participation in most work activities. Employment would be feasible in a loosely supervised situation requiring littler interaction with the public. The Veteran's tinnitus should not negatively impact employability. Prior to December 28, 2008, and from May 1, 2009, to August 31, 2010, the schedular percentage requirements for entitlement to a TDIU were not met. A TDIU rating may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. 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 evidence of record does not indicate that an extraschedular rating is warranted. Although the record includes opinions that the service-connected disabilities affected the Veteran's occupational functioning, the Board finds the preponderance of the probative evidence does not indicate that the service-connected disabilities rendered the Veteran unemployable. The Board acknowledges that the June 2010 Vet Center report reflects a determination that the Veteran was "unable to work due to his chronic PTSD symptoms." The report does not include a rationale for this determination, however, to include an explanation of the symptoms which caused the reported unemployability, and the determination is not otherwise corroborated by the Vet Center treatment records of record, which the Board notes reflect the assignment of GAF scores corresponding to moderate PTSD. As such, the Board finds the report has limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In contrast, the Board finds the VA examiners' findings are highly probative as they are supported by rationales, to include a discussion of symptoms and a distinction between the effects of the service-connected psychiatric disability and nonservice connected cognitive disability. The Board acknowledges that the record does not include an explicit opinion as to the collective effect of the service-connected disabilities on employability. The record suggests that the February 2009 VA examiner considered at least the effects of the Veteran's pes planus in rendering his opinion, however (as shown by the determination that the Veteran would have to perform sedentary employment). Moreover, the medical findings indicate that the service-connected hearing loss, tinnitus, and pes planus resulted in minimal, if any, impairment of occupational functioning during this period. Although the record indicates that the service-connected disabilities resulted in economic inadaptablity, economic inadaptability is taken into account in the evaluation assigned, and the Board finds the record does not include evidence that would take the Veteran's case outside the norm. Accordingly, a total disability rating based upon individual unemployability due to a service-connected disability under the provisions of 38 C.F.R. § 4.16(b) is not warranted at any time prior to August 31, 2010. From August 31, 2010, the schedular percentage requirement for a TDIU rating under section 4.16(a) was met. Thus, the question remaining is whether there is evidence that the Veteran was unable to secure a substantially gainful occupation as the result of the service-connected disabilities during this time. 38 C.F.R. § 4.16(a). The record includes highly probative medical opinions which indicate that the Veteran has not been rendered unemployable as a result of his service-connected disabilities. The opinions indicates that this employment would have to make accommodation for hearing loss, be limited to sedentary work, and require performance of routine tasks in a limited setting with little or no contact with anyone including peers, supervisors or the public, however. These restrictions are more onerous than those previously described: the opinions provided prior to August 31, 2010, indicated that the Veteran could have some, albeit limited, contact with others. Based on the increased restrictions and the evidence of a worsening in the Veteran's hearing loss and pes planus as of August 31, 2010, and resolving all doubt in favor of the Veteran, the Board finds the evidence warrants entitlement to a TDIU as of August 31, 2010. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in November 2008 with regard to the claim of entitlement to a TDIU. The duty to assist was also met in this case. All reported VA and private treatment records have been obtained and associated with the file. VA examinations with opinions as to the occupational impact of the service-connected disabilities are of record. To this extent, the Board notes that the examination records, and associated findings as to occupational effect, are adequate, as each examiner predicated the findings on a full reading of the medical records in the Veteran's claims file and considered all of the pertinent evidence of record and the statements of the appellant, and the examiners provided a rationale for the reported findings on occupational impairment. Accordingly, the Board finds that VA's duty to assist been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). ORDER A TDIU prior to August 31, 2010, is denied. A TDIU from August 31, 2010, is granted. ____________________________________________ N. SNYDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs