Citation Nr: 1330309 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 07-17 308A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU rating). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from November 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to a TDIU rating. In March 2010, the Board remanded this matter for further evidentiary development. In a document submitted in December 2011, that was accepted as the Veteran's substantive appeal (in lieu of VA Form 9) for the claim for a TDIU rating, the Veteran indicated he wanted a local hearing with a decision review officer (DRO) at the RO. Such hearing was scheduled. However, in December 2011, the Veteran indicated he wanted to withdraw this hearing request. In December 2012, the Board found that there had not been substantial compliance with the Board's March 2010 remand, and the Board again remanded this matter for additional development, to include scheduling the Veteran for a VA examination to address the effect of his service-connected disabilities, if any, on his employability. Stegall v. West, 11 Vet. App. 268 (1998). A review of the record shows that the Veteran underwent a VA DBQ (disability benefits questionnaire) examination in December 2012, which provided the necessary opinion regarding the Veteran's employability. Thus, there was substantial compliance with the Board's December 2012 remand. Stegall v. West, supra. FINDINGS OF FACT 1. The Veteran's service-connected disabilities, effective prior to April 29, 2011, included PTSD, rated as 50 percent disabling; GERD (gastroesophageal reflux disease) and Barrett's esophagus, rated as 30 percent disabling; and malaria, rated as 0 percent disabling. Thus, the Veteran's combined service-connected disability rating was 70 percent, effective prior to April 29, 2011. 2. The Veteran's service-connected disabilities, effective from April 29, 2011, include nonobstructive coronary artery disease, rated as 100 percent disabling; PTSD, rated as 50 percent disabling; GERD and Barrett's esophagus, rated as 30 percent disabling; and malaria, rated as 0 percent disability. The Veteran's combined service-connected disability rating was 100 percent, effective from April 29, 2011. 3. The disability ratings assigned for the Veteran's service-connected disabilities, both prior to and subsequent to April 29, 2011, meet the schedular threshold requirements for consideration of the assignment of a TDIU rating. 4. The competent and probative evidence of record preponderates against a finding that the Veteran's service-connected disabilities are of such a nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16(a),(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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). 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2009 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that in the February 2009 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service and post-service treatment records for the Veteran. In December 2012 VA DBQ reports, VA examiners addressed the Veteran's employability with regard to his service-connected disabilities. The December 2012 VA DBQ examination reports included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. The December 2012 VA DBQ reports are thus adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. In a July 2013 statement, the Veteran's representative asserted that current evaluation of 50 percent for the Veteran's service-connected PTSD does not adequately reflect the severity of this disability. However, in a December 2012 decision, the Board denied the issue of entitlement to a disability rating greater than 50 percent for the service-connected PTSD. The Veteran did not appeal that denial. Moreover, neither the Veteran, nor his representative, has specifically asserted that the symptoms associated with this service-connected disability have increased in severity. Thus, the Board finds that another remand, to accord the Veteran an opportunity to undergo a new VA psychiatric examination prior to final adjudication of the TDIU claim on appeal, is not warranted. Accordingly, the Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background On a VA examination in August 2001, it was noted that, since his separation from the Army, the Veteran had worked for the last 30 years as an electronics technician with Electric Boat. At a February 2006 VA examination, the Veteran reported he recently had problems at work over the past few months due to his lack of attention to detail and the poor affects upon his performance. He stated that a recent mistake on his part caused himself and another worker to be shocked, and he was hospitalized. He went up on suspension for this event, and his superiors reportedly noted that this was not typical for him. The examiner found that the Veteran was clearly suffering from symptoms of PTSD in all diagnostic domains and concluded that the Veteran's symptoms meet the diagnostic criteria for PTSD and that his ability to manage these difficulties was becoming increasingly more difficult for him (as was evidenced in part by his difficulties at work due to his behavior and lack of focus). In a report dated in February 2006, from the Norwich Vet Center, it was noted that the Veteran had been employed at EB for the past 37 years but was unsure how much longer he could work due to his physical problems and PTSD. It was noted that he had been disciplined there and nearly lost his current position as a nuclear service electronics engineer on the 3 a.m. to 11 a.m. shift. On a VA treatment record dated in March 2006, it was noted that the Veteran worked for Electric Boat on the late shift for the past 37 years, and that, although he had been able to maintain employment despite his PTSD, he stated that he was constantly passed up for promotions due to his short temper and poor social skills, and he was considering retirement in the next couple of years. Received in March 2007 from the Veteran was a statement in which he indicated that due to his PTSD he was no longer working. On a VA treatment record in June 2007, it was noted that the Veteran reported he was out of work since December due to medical reasons, and had now retired in May and found himself more stressed out. In a letter dated in October 2007, a private physician, Dr. Leach, opined that the Veteran suffered from severe COPD, hypertension, and GERD, and that at that time, the Veteran's condition was quite significantly affected by his medical problems and he was unable to work. At an April 2008 VA examination, the Veteran reported he was employed throughout his adult life as an electrician, but took a medical retirement in May 2007. Based on concerns about his medical status that, in part, included his taking medications that decreased his concentrating and that he thought might get him in trouble in terms of his not reporting them for security clearance purposes at work, the Veteran decided to take a medical retirement in May 2007. A VA discharge summary showed that the Veteran was admitted for a six week inpatient PTSD treatment program, from November 2008 through January 2009. In the discharge summary, the staff psychiatrist opined that the Veteran was considered unemployable and competent to handle any government funds due him. Received from the Veteran in March 2009 was a formal claim (VA Form 21-8940) for a TDIU rating. Therein, he indicated that his PTSD and Barrett's esophagus were the service-connected disabilities that prevented him from securing or following any substantially gainful occupation. He indicated he had completed high school, and that his last full time employment, as a nuclear electrician, ended in December 2006. He indicated that he left his last job because of his disabilities (PTSD and Barrett's esophagus), that he became too disabled to work in December 2006 due to his PTSD and esophagus, and that he had not tried to obtain employment since he became disabled. Received in May 2009 was a completed Request for Employment Information (VA Form 21-4192) from Electric Boat, indicating that the Veteran worked there full time from December 1968 through May 2007, and retired in December 2006. A VA discharge summary showed that the Veteran was admitted for a two week inpatient PTSD revitalization program in June 2009, and it was noted that this longest job was for 38 years with Electric Boat as an electrician, inspector, and service engineer. It was noted that he was medically retired based on orthopedic and pulmonary problems in 2007. In a November 2009 videoconference hearing regarding a claim for an increased rating for PTSD, the Veteran testified that he left his job in 2006, and that he had had surgery, found out he had emphysema, and "called it quits." He testified he had surgery on his shoulder, and that they collapsed his lung during surgery and that was when he found out he had emphysema, which made it hard for him to breathe so no longer went to work and got a medical retirement. He testified in response to the question of whether he was on Social Security disability due to his shoulder and emphysema, that he also told them about his PTSD. Records were received from the Social Security Administration (SSA) in May 2010, regarding the Veteran's claim for and award of benefits. The records from the SSA show that the Veteran was awarded Social Security disability benefits, effective from December 15, 2006, for the following disabilities: disorders of muscle, ligament and fascia; and chronic pulmonary insufficiency. On a VA examination in August 2010, it was noted that the Veteran had a somewhat different description of his decision to retire from "Electric Boat" when compared to that in the record from several years ago. He reported that, following surgery and recovery, he chose to retire after 38 years because "they were prejudiced against him because he was a veteran". He reported he had been laid off 8 times during his 38 year career at Electric Boat, and claimed he had problems with authority. He claimed that during his working career he often worked 7 days a week and did extensive overtime to keep his mind occupied. On examination, the Veteran did not emphasize the medical reasons for his retirement, which was noted to be in contrast to that noted previously in the record. The examiner summarized that the Veteran's PTSD symptoms were much as describe at the time of the last examination, with no reported substantial change in his symptoms or the level of impairment. The examiner found this consistent with the record, which indicated mild to moderate symptoms and mild impairment in function. The examiner opined that the impairment noted was solely related to his service-connected PTSD, as he had no comorbid conditions that impacted his level of functioning. On a VA cardiology examination in April 2011, it was noted that the Veteran reported he was a nuclear electronics service engineer and had not worked since 2006 and that he remained unemployed due to a lay off. With regard to the effects of the Veteran's cardiac condition on his usual occupation and daily activities, the VA examiner noted that the Veteran was unable to perform as an electrician since it entailed climbing heights, pulling cables, and carrying heavy equipment, which made him short-winded and dizzy. It was also noted that the Veteran had claimed he had passed out past at work, in the past, and had not worked since 2007. As part of the VA DBQ examination in December 2012, the Veteran underwent separate examinations to evaluate the severity of each of his service-connected disabilities. The examiner opined that the Veteran's chronic and mild to moderate PTSD was not severe enough, in and of itself to preclude employment, and did not during his 38 year career at Electric Boat. With regard to GERD, that examiner indicated that the Veteran had worked in the past as a nuclear electronics service engineer and had not worked since 2006, and was retired due to multiple health problems. The examiner opined that the Veteran's GERD did not cause any work limitations. With regard to the Veteran's coronary artery disease (CAD), that examiner opined that the Veteran's CAD caused fatigue and decrease endurance, but was not severe enough to cause unemployability. With regard to malaria, the examiner opined that the Veteran's malaria was inactive and did not interfere with his ability to work. Finally, an examiner looked at all of the Veteran's service-connected disabilities and opined that it was less likely than not that the Veteran's service PTSD, GERD, malaria, and CAD, for the period from April 29, 2011 to the present, have combined to preclude him from engaging in substantially gainful employment that was consistent with his education and occupational experience. III. Analysis The Veteran has essentially contended that his service-connected PTSD and GERD prevent him from obtaining and maintaining substantially gainful employment. Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 . Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a veteran does not meet the above percentage requirements, a total rating may be assigned on a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). 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). In determining whether unemployability exists for TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has stated that, in order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In adjudicating a claim for TDIU, the Board may not reject the veteran's claim without producing evidence, as distinguished from mere conjecture. Friscia v. Brown, 7 Vet. App. 294 (1995). Here, the record reflects that the Veteran's service-connected disabilities, effective prior to April 29, 2011, included PTSD, rated as 50 percent disabling; GERD and Barrett's esophagus, rated as 30 percent disabling; and malaria, rated as 0 percent disabling. Effective from April 29, 2011, his service-connected disabilities included nonobstructive coronary artery disease, rated as 100 percent disabling; PTSD, rated as 50 percent disabling; GERD and Barrett's esophagus, rated as 30 percent disabling; and malaria, rated as 0 percent disability. Thus, his total combined service-connected rating was 70 percent prior to April 29, 2011, and 100 percent thereafter. As such, he meets the criteria for consideration of entitlement to TDIU on a schedular basis because his rating satisfies the percentage requirements of 38 C.F.R. § 4.16(a). The Board acknowledges that the Veteran has carried a 100 percent schedular disability rating for coronary artery disease since April 29, 2011. However, the Court has held that a claim for a TDIU is potentially not moot even when a schedular 100 percent disability rating has been granted. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC ) under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)). See 38 U.S.C.A. § 1114(s). Thus, the issue of entitlement to a TDIU for the entirety of the appellate period remains before the Board. In the present appeal, the Veteran essentially maintains that two of his service-connected disabilities, PTSD and GERD, render him totally unemployable. In his March 2009 formal claim for a TDIU rating, he indicated that his PTSD and Barrett's esophagus were the service-connected disabilities that prevented him from securing or following any substantially gainful occupation and that he left his last job and became too disabled to work in December 2006 due to his PTSD and Barrett's esophagus. The Board acknowledges the Veteran's assertions, as well as his significant degree of functional impairment due to his service-connected PTSD (rated at 50 percent disabling) and to a lesser extent of impairment, his GERD (rated as 30 percent disabling). However, the Board also notes that the evidence in this type of claim must show that the Veteran is unable to pursue a substantially gainful occupation due solely to his service-connected disability. The mere fact that a veteran is unemployed or has difficulty obtaining a job in the available employment marketplace is not enough. As the Court has emphasized, a high disability rating in and of itself is recognition that the impairment makes it difficult to obtain or retain employment, but the ultimate question is whether the veteran is individually capable of performing the physical and mental acts required by employment (without consideration of his advanced age or of the effects of non-service-connected disabilities), rather than whether he is having difficulty finding employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In reviewing the record, however, although the Veteran maintains he is unable to work due to his service-connected PTSD and GERD/Barrett's esophagus, neither VA or private medical records ascribe an inability to work due solely to any service-connected disability, to include the service-connected PTSD and/or GERD/Barrett's esophagus. For instance, in October 2007, Dr. Leach basically opined that the Veteran's severe COPD, hypertension, and GERD quite significantly affected him and he was unable to work. In a June 2009 VA discharge summary it was noted that the Veteran was medically retired based on orthopedic and pulmonary problems. Finally, in November 2009 he testified that he left his job in 2006, and that he had had surgery, found out he had emphysema, and "called it quits." He also testified that his lung was collapsed during shoulder surgery and that was when he found out he had emphysema, which made it hard for him to breathe, and so he no longer went to work and got a medical retirement. While the record does suggest that the Veteran's PTSD does affect his employability, as indicated by the current 50 percent rating, the competent evidence of record preponderates against a finding that he is unemployable solely due to his service-connected psychiatric condition. See December 2012 VA DBQ examination reports. Further, with regard to employment, the record reflects that the Veteran reported he retired in 2007 from his work as an electrical engineer, and that, since retirement, has not attempted to obtain employment. The Board makes this point not to penalize the Veteran for continuing to work up until his retirement; rather, the Veteran is to be commended for continuing to work despite the ongoing PTSD and GERD symptoms he reported he was experiencing while working. In conclusion, while the Board does not wish to minimize the nature and extent of the Veteran's overall psychiatric and gastric disabilities, or his other service-connected disabilities, the evidence of record simply does not support his claim that his service-connected disabilities are, either alone or together, sufficient to produce unemployability. Although his psychiatric disorder exhibits a degree of impairment, the evidence does not reflect that gainful employment is precluded solely due to that (or other) service-connected disability. To the extent the Veteran is limited by his service-connected psychiatric disability, and any other service-connected disabilities, any such limitation is contemplated in, and is being adequately compensated by, the current disability ratings assigned for each service-connected disability. Accordingly, for reasons set forth above, a TDIU rating is not warranted. 38 C.F.R. § 4.16(b). ORDER Entitlement to a TDIU rating is denied. ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs