Citation Nr: 1327899 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 05-00 404A ) 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 (TDIU) prior to October 31, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to April 1972 and from January 1973 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2009, the Board granted TDIU effective October 31, 2007, and remanded the issue of TDIU prior to October 31, 2007, for referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In February 2010, the Board denied the issue of TDIU prior to October 31, 2007 and he appealed the decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In November 2010, the Court granted a Joint Motion for Remand and remanded the matter to the Board for action consistent with the November 2010 Court order. In February 2011, the Board remanded the case for further development. FINDING OF FACT Prior to October 31, 2007, the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a 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 any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. For the time period prior to October 31, 2007, service connection was in effect for posttraumatic stress disorder (PTSD) evaluated as 50 percent disabling; type II diabetes mellitus evaluated as 20 percent disabling; residuals of a shell fragment wound to the left leg evaluated as noncompensably disabling; hypertension evaluated as noncompensably disabling; and erectile dysfunction evaluated as noncompensably disabling since April 1, 2006. The Veteran had a combined 60 percent evaluation. The Veteran does not met the schedular criteria for a total rating for compensation purposes based on individual unemployability prior to October 31, 2007, under the provisions of 38 C.F.R. § 4.16. However, the analysis does not end here. The Veteran can be granted a total rating if it is shown that his service-connected disabilities, when considered in light of his education and occupational experience, render him unable to obtain or retain substantially gainful employment. See 38 C.F.R. § 4.16(b). An opinion was previously obtained from the VA Director of Compensation and Pension Service (Director) with regard to extraschedular consideration. In an August 2009 letter the Director indicated that he had conducted a review of the file and determined that the overall evidentiary record failed to satisfactorily demonstrate that the Veteran had been rendered incapable of securing and maintaining gainful employment as the result of his service-connected disabilities prior to October 31, 2007. The Veteran filed a claim for individual employability in April 2003. He indicated that he was unable to work due to the use of medication he takes for PTSD. He reported that he had been denied two jobs for this reason. The Veteran also submitted a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in May 2003 and indicated that he was prevented from following gainful occupation due to PTSD. He reported that his PTSD affected his full-time employment beginning in 2002, and that he became too disabled to work in June 2002. He indicated that his last job was as an electrician, and the job ended in May 2001 when the company where he worked closed. A SSA assessment of mental limitations by Dr. M. B. dated in June 2002 reported that the Veteran's ability to perform activities of daily living independently and appropriately free of supervision and direction was poor. He also stated that the Veteran's ability to follow work rules and maintain personal appearance was poor. Dr. B. concluded that the Veteran had severe PTSD and could not be around other people or be subordinate to people. An August 2003 VA psychological examination revealed a diagnosis of PTSD. Following a mental status examination the examiner indicated that it was difficult to estimate whether the Veteran's symptoms of PTSD were so great that they rendered him permanently unable to work. The examiner reported that the Veteran indicated that he would like an opportunity to work and could perhaps marginally function if he were to work in a solitary capacity. He concluded that it was clear that the Veteran's PTSD and associated problems were of a severity that would at least moderately limit or impact his ability to successfully hold down or perform a job. In December 2003, the Social Security Administration (SSA) granted the Veteran disability benefits finding that the Veteran had not engaged in gainful activity since August 15, 2001 due to severe PTSD and depression. It was determined that the Veteran retained the residual functional capacity to perform work at all exertional levels but had a marked impairment in interacting with co-workers, supervisors and the public, a moderate impairment in his ability to maintain concentration and attention, a moderate impairment in his ability to adapt to changes in a routine work setting, and an inability to cope with ordinary job stress. The Veteran was also found to be unable to perform the requirements of his past relevant work. In an August 2004 VA examination, the Veteran reported that he had been informed that he could not be hired for any job because he took antidepressants. Following a physical examination, the examiner provided an opinion as to whether diabetes could cause hypertension. He also opined that there was no question that the Veteran was employable as there was virtually no job around that would prevent the Veteran from being employed because of antidepressants. He concluded that there was no reason why the Veteran could not be gainfully employed. An April 2006 VA diabetes examination revealed a diagnosis of type I diabetes with associated erectile dysfunction and hypertension. The Veteran denied episodes of ketoacidosis and hypoglycemia and indicated that he followed a restricted diet. He did not report that he was restricted in strenuous activities. The examiner indicated that the Veteran's problems had no significant effects on his occupation or usual daily living. A March 2012 report from a VA vocational rehabilitation and employment officer stated that the Veteran was never a participant in a Chapter 21 vocational rehabilitation program. The counselor stated that in order to provide an opinion as to whether the Veteran would have been a candidate for vocational rehabilitation and the types of programs he would have been recommended for between 2001 and 2007, testing and a comprehensive evaluation would have had to performed at that time and, therefore, an opinion could not be provided without resort to mere speculation. In June 2012, a VA social worker stated following a social and industrial survey that evaluating the impact of the Veteran's symptoms on his ability to be employed from five years ago or longer is difficult and deferred to the SSA determination in December 2003 and the August 2003 VA examination opinion that found that the Veteran's PTSD affected his ability to be employed as they assessed his employability during the time frame in question. A general VA examination by a medical physician in October 2012 addressed each of the Veteran's service-connected disabilities and provided opinions on whether they affected the Veteran's employment. The opinions provided only addressed the current impact of the disabilities on the Veteran's ability to work and, therefore, are not relevant to the current issue on appeal. An opinion was provided regarding whether PTSD affected the Veteran's ability to work prior to October 2007. It was determined that Citalopram, medication that the Veteran was taking for his PTSD, increased his re-experiencing phenomena and while taking this medication he was unable to engage in gainful employment, including sedentary work. Review of the Veteran's VA medical treatment records show that the Veteran was taking Citalopram from July 20, 2005 until January 23, 2007, when his medication was changed and his symptoms were found to have improved. In April 2013, a psychiatric VA opinion by a nurse practitioner was provided regarding the Veteran's ability to work finding that it was less likely than not that the Veteran's PTSD prior to October 2007 rendered him unable to secure or follow substantially gainful employment. The examiner stated that after a review of the Physician's desk reference, she found that none of the Veteran's medications that he was taking between 2001 and 2007 rendered him unable to secure or maintain any substantially gainful occupation and the Veteran could have engaged in any job that did not require use of heavy equipment or sensitive materials. The examiner noted that the Veteran's symptoms were under good control in 2006 while on Alprazolam alone. The record contains evidence both for and against the Veteran's claim for TDIU prior to October 31, 2007. The medical evidence demonstrates for the time period that the Veteran was taking Citalopram from July 2005 to January 2007, he was unable to work. Although the April 2013 examiner stated that the Veteran's symptoms were under control, there is no indication that she reviewed the Veteran's treatment records, as did the October 2012 examiner who found that the Veteran struggled with symptoms associated with taking Citalopram for his PTSD. The October 2012 examiner provided a definitive opinion and his rationale was supported by citing to specific evidence in the file. The opinion is probative and persuasive. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Regarding the remaining time period on appeal, although the evidence does not show that the Veteran's service-connected type II diabetes mellitus, residuals of a shell fragment wound to the left leg, hypertension and erectile dysfunction do not cause the Veteran to be unemployable, the evidence is in equipoise as to whether the Veteran's service-connected PTSD significantly impacts his ability to work. The June 2002 SSA assessment of mental limitations concluded that the Veteran had severe PTSD and could not be around other people or be subordinate to people. Based on this finding, the SSA granted the Veteran disability benefits. In August 2003, a VA examiner stated that the Veteran's PTSD does impact his employment, though it was difficult to estimate whether the Veteran's symptoms of PTSD were so great that they rendered him permanently unable to work. The June 2012 VA social worker deferred to the SSA determination in December 2003 and the August 2003 VA examination opinion that found that the Veteran's PTSD affected his ability to be employed. On the other hand, the August 2004 examiner stated that the Veteran was employable as there was virtually no job around that would prevent the Veteran from being employed because of antidepressants. This opinion, however, was conclusory and there is no evidence that the examiner assessed the Veteran's psychiatric disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The April 2013 opinion's probative value is also questionable as the examiner only reviewed a physician's desk reference to determine whether the medication the Veteran was taking would render him unable to work. There is no indication that she based her opinion on the Veteran's specific case and did not provide supporting rationale based on the entire record citing only to one report in 2006 that the Veteran's symptoms were under control. Significantly, and not addressed in the opinion, there is evidence of record that the Veteran had an adverse reaction to a medication he took for PTSD. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board must find that a preponderance of the evidence is against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Such a finding cannot be made in this case. At best, there is an approximate balance of positive and negative evidence and, TDIU is warranted for the entire period prior to October 31, 2007. 38 U.S.C.A § 5107(b). ORDER Entitlement to TDIU prior to October 31, 2007, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs