Citation Nr: 1331348 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-00 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1944 to April 1950 and from June 1951 to September 1952. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This matter was previously before the Board of Veterans' Appeals (Board) in December 2012, April 2013, and June 2013; in each instance, it was remanded for further development. The Veteran requested a hearing in conjunction with his appeal, but he withdrew his request in September 2009. 38 C.F.R. § 20.704(e) (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is currently service-connected for posttraumatic stress disorder (PTSD), evaluated at 30 percent from April 14, 2000, and 50 percent from July 24, 2007; traumatic degenerative joint disease, status post fracture, right 5th metatarsal, evaluated at 30 percent from December 15, 2003; low back injury with compression fracture of L1, evaluated at 10 percent from August 16, 2002; pleural plaques, evaluated at 30 percent from August 25, 2004, 10 percent from July 1, 2008, noncompensable from November 3, 2010, and 10 percent from September 15, 2011; and hemorrhoids, evaluated as noncompensable from April 14, 2000. The combined evaluation was 70 percent at the time of the claim, increasing to 80 percent from July 24, 2007, and then returning to 70 percent as of July 1, 2008. Thus, throughout the period on appeal, the Veteran has met the schedular requirements for TDIU. 2. The preponderance of the evidence is against finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment due to service-connected disabilities alone. CONCLUSION OF LAW The criteria for a total disability evaluation based on individual unemployability due to service-connected disorders are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). All notice requirements have been met. VA provided the Veteran notice addressing the elements necessary to prove his claim for a total disability rating in October 2005 and June 2010. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. A July 2013 VA opinion is of record, as requested by the Board's June 2013 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Entitlement to TDIU The Veteran asserts that his service-connected disabilities prevent him from being able to secure and maintain substantially gainful employment. It is unclear exactly when he stopped working, as he has variously asserted that he retired in 1984, 1992, 2002, 2004, and 2005. Nevertheless, it is evident that he has been unemployed throughout the claims process. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, 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). The Veteran is currently service-connected for posttraumatic stress disorder (PTSD), evaluated at 30 percent from April 14, 2000, and 50 percent from July 24, 2007; traumatic degenerative joint disease, status post fracture, right 5th metatarsal, evaluated at 30 percent from December 15, 2003; low back injury with compression fracture of L1, evaluated at 10 percent from August 16, 2002; pleural plaques, evaluated at 30 percent from August 25, 2004, 10 percent from July 1, 2008, noncompensable from November 3, 2010, and 10 percent from September 15, 2011; and hemorrhoids, evaluated as noncompensable from April 14, 2000. The combined evaluation was 70 percent at the time of the claim, increasing to 80 percent from July 24, 2007, and then returning to 70 percent as of July 1, 2008. Thus, throughout the period on appeal, the Veteran has met the schedular requirements for TDIU. Id. Entitlement to a total compensation rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Evidence The Veteran underwent a VA posttraumatic stress disorder examination in November 2005. The Veteran reported that he tried to keep busy with lawn and garden work. The examiner believed the Veteran had become less active since a 2003 examination. He reported suffering from depression, trouble sleeping, irritability, and a loss of concentration. He was short winded, which he related to his history of asbestos exposure. On mental examination, the Veteran's immediate, recent, and remote memory were intact, but there was slight impairment in concentration, which was overall adjudged to be "fair to good." The examiner assigned a Global Assessment of Functioning (GAF) score between 55 and 60, and opined that it was "difficult to determine a level of occupational impairment as the [V]eteran has been retired for a few years now but he denies any history of occupational impairment." The Board observes that GAF scores of 51 to 60 are representative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). In December 2005, VA provided a physical examination for the Veteran. The Veteran informed the examiner regarding the reason he was there, "he wasn't quite sure of why other than something about unemployability and he said something at his age he wasn't sure what that exactly meant." The Veteran was the primary caregiver for his wife, who had suffered from stroke residuals since 1965. The Veteran reported walking with a cane and on occasion using a back brace. Regarding activity, he reported the ability to walk about two blocks before becoming short of breath and needing two or three minutes of rest. He reported sharing lawn duties with his wife. The examiner reported that the Veteran had been retired since 1992. He opined that the Veteran would be limited with activity requiring him to walk or carry anything for any distance at all, and that a distance of 50 to 100 yards would be very stressful for him. Some of the difficulty would be related to his knees and foot. The examiner felt that "[a] job where he could sit, computer operator, telephone receptionist, something along those lines would be something that he could function well at, at this time." The Veteran's back, limbs, and total knee replacement would prevent him from performing any work involving climbing. The Veteran underwent a pulmonary examination in July 2007. The Veteran indicated that the only interference with his activities of daily living was that he could walk approximately 200 yards before he became short of rest, and then would need a couple of minutes of rest prior to resuming walking. The Veteran reported that he had been retired for many years. Also in July 2007, the Veteran submitted a VA Form 21-8940, indicating that he had worked up to 40 hours per week until the end of 2003, and had worked 20 throughout 2004, performing electrical work. VA provided the Veteran with an unemployability examination in December 2007. Concerning his service-connected foot disability, the Veteran reported some pain in his foot, and that he used a cane. The Veteran had on-and-off pain with his service-connected back disability. He reported lung problems for some time, and became short of breath when walking for a quarter-mile. He avoided stairs because of his shortness of breath. The examiner opined that the Veteran's foot disability would have a minimal effect on any employment, other than limiting how far he could walk for his activities; the examiner noted in this regard that the Veteran could go "about six miles relating to his foot." With regard to the shortness of breath, activities requiring the Veteran to walk extended distances would be limited to a quarter-mile. The examiner noted that the Veteran was able to walk around the doctor's office during his visit. The back disability did not affect his sitting or standing. The examiner noted that the Veteran had been retired for "18 years," and opined concerning employment "that it is at least as likely as not that this Veteran should, without regard to his age, be able to do sedentary work, working at a computer, working at a desk." The examiner noted that some non-service-connected disabilities, including shoulder disabilities and carpal tunnel syndrome, would affect employment activities. On the whole, "[w]ith his shoulders not being [service-]connected at this point, there would be very minimal indications for the Veteran not being able to do sedentary work at this time." At a December 2007 VA PTSD examination, the Veteran indicated that he was doing "very well." The examiner noted an October 2007 treatment note indicating that the Veteran was "doing great." The examiner noted that the Veteran's sleeping had worsened, and that the Veteran continued to have dreams due to PTSD. Other symptoms had improved. The Veteran did not avoid thinking about the war anymore, was not irritable, had better concentration, and was not hypervigilant. His depression had improved. The examiner noted that the Veteran had been retired since 2005. The Veteran stated that he enjoyed his retirement by doing things around the house such as gardening, clearing the snow, and general handyman type work. He had recently put up Christmas lights. The examiner opined that the PTSD signs and symptoms were not severe enough to interfere with his occupational functioning. He assigned a GAF score of 60 to 65, which, according to the DSM-IV, is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. In May 2010, the Veteran submitted a VA Form 21-8940, indicating that he retired in 2002. In June 2010, the Veteran was provided a general medical examination to address his service-connected disabilities and his employability. The Veteran reported retiring approximately eight to ten years prior to the examination. The examiner evaluated the Veteran's service-connected and non-service-connected disabilities, their symptoms and their impacts on the Veteran's life. The Veteran denied limitations due to his service-connected foot disability, and the Veteran did not experience back pain at the time of the examination. He reported that his biggest concern was shortness of breath; the examiner noted, "however, with mowing he can go up to six miles a week with this. He can walk several blocks. This does not limit him in the sitting position." The examiner also added that the Veteran's back disability did not prevent him from mowing the lawn, driving, or sitting in an erect position. He was limited in standing, however, to less than 30 minutes at a time. The examiner opined, based on consideration of the Veteran's service-connected disabilities, that the Veteran "would not be limited from sedentary types of activities such as sitting doing deskwork. His breathing may preclude him from a labor-intensive job . . . . Without regard to his age, his service connected and non-service-connected disabilities would not preclude him from all types of gainful employment." On his March 2011 Substantive Appeal, the Veteran argued that his current disabilities related to his pulmonary condition prevented him from performing the required activities of his primary occupation, that of an electrician. He felt that he could not work sedentary employment, because "the possibility of obtaining the required credentials to transfer into a new occupational specialty at this point is not a feasible option." In May 2011, the Veteran reported that he mowed his own lawn, which required walking approximately 6 miles. He did so by "stopping and starting," reminding himself that he was not "on the clock." The Veteran also reported in May 2011 that his wife assisted him in bathing and using the toilet. In August 2011, the Veteran reported that he spent his time dealing with yard work, gardening, or snow removal in the winter. VA provided the Veteran an examination in September 2011 to determine his employability. The Veteran reported retiring in 1984 after a career in electrical work. His daily activities at the time of the examination included gardening and mowing his lawn. He was not bothered by sitting, but had problems standing for more than 10 to 15 minutes, and, due to shortness of breath, felt that he could not walk more than one or one-and-a-half blocks before needing rest. The Veteran reported performing all of his own activities of daily living, with his main limitation being shortness of breath with walking. He still was able to drive, and would drive further if he had a newer car, but primarily limited his driving to around town. Concerning other service connected disabilities, the Veteran denied problems with his right foot, indicating that it did not affect his gait or his ability to walk. His low back degenerative arthritis caused back stiffening and pain. The examiner noted post-service bilateral rotator cuff problems, with pain worse on the left than the right. Those symptoms caused difficulty lifting objects over his head. The Veteran also experienced tenderness and crepitus in his left knee, secondary to a total knee replacement procedure. The knee did not cause limits in sitting, but did create some limitations with standing due to knee pain. Based on his non-service-connected disabilities, the examiner opined that the Veteran would have difficulty doing any repetitive or heavy lifting, and would have difficulty doing work that would require the overhead use of his arms. The knee disability would not impact sedentary work. The examiner opined that, considering his service-connected disabilities (in which group he included the Veteran's non-service-connected chronic obstructive pulmonary disease (COPD)), he would be unable to perform sustained light to moderate heavy labor, but would not be precluded from performing sedentary work. The Veteran underwent a VA psychiatric examination in October 2011. He reported being in a "stable condition with good functioning level," and indicated that he performed daily yard work and took care of his wife, who had a disability. The examiner cited a report from 2000 concerning the Veteran's employment history, which indicated that the Veteran had been "gainfully employed as an electrician previous to his retirement, and was able to perform quite adequately." Continuing to cite the 2000 report, the examiner quoted, "[h]e is finishing up his final term on the County Commission and has some mild ambivalence about giving up that responsibility. He serves in a position of leadership with his DAV chapter. He has been able to provide personal assistance to his wife who has been handicapped for the last 35 years." The examiner opined that the description "clearly indicate[d] his maintained well functioning level, and [did] not show evidence of his unemployability." In response to a question by the examiner, the Veteran stated that he "would be able to go back to work as an electrician other than the requirement of taking lectures yearly to learn very complex code system[s]." The Veteran did not express any problems with his daily activity with gardening or taking care of his wife. The Veteran denied concerns with depressed mood or anxiety, and denied experiencing irritability. The examiner opined that the Veteran was "theoretically . . . employable if he wishes and there is an opportunity, although he has been retired for over 10-12 years." In May 2012, the Veteran underwent a VA examination for PTSD. The Veteran informed his examiner that he quit working as an electrician in 1974 due to his physical condition. The examiner noted that the Veteran's PTSD manifested in anxiety symptoms, but did not find that the disability created disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, or difficulty in adapting to stressful circumstances, including work. The examiner specifically addressed the impact of PTSD on his employability, stating, "PTSD does not preclude the [V]eteran from obtaining or maintaining a gainful employment. This opinion is based on clinical data and medical literature, that indicate that employment is considered on[e] of the major therape[u]tic tools in the management of PTSD." In a July 2012 statement, the Veteran asserted that his pulmonary condition prevented him from performing work as an electrician, and from securing employment that was physical in nature. He argued that he was also "hinder[ed]" from performing sedentary work due to his service-connected posttraumatic stress disorder. In March 2013, the Veteran's representative argued that any examination findings that the Veteran is able to perform sedentary work are erroneous, as there is no evidence to support such a finding. In May 2013, VA obtained an addendum opinion concerning the Veteran's employability from the examiner who conducted the September 2011 examination. The examiner opined that the service-connected medical conditions, including pleural plaques, degenerative changes of the lumbar spine, hemorrhoids, and the residuals of a foot injury, did not prevent employability. The examiner stated that "the Veteran is able to obtain or maintain employment due only to his service connected disabilities, consistent with his education and occupational experience, irrespective of age and any non-service connected disorders, and that he is certainly capable of sedentary work as he does not have problems with sitting, and is able to drive." Following the most recent remand, VA obtained an additional opinion concerning the Veteran's employability in July 2013. That examiner, following a review of all available records, opined that the Veteran was not precluded from gainful employment due solely to his service-connected disabilities. The examiner opined that the Veteran's multiple, well-documented medical problems "have not prevented him from such activities as gardening, walking six miles a week, mowing his lawn, driving a car, standing for up to 15 minutes, or sitting." The examiner noted that the Veteran was "a high school graduate and has experience as an electrician. He also has experience as a County Commissioner and a leader in a Veteran's Service Organization." The examiner opined that, "[b]ased upon this information, the Veteran's medical conditions should not preclude him from sedentary work and thus his medical conditions, in and of themselves, do not preclude him from gainful employment for which he is qualified consistent with his education and occupational experience." Analysis As discussed above, the Veteran, with a combined rating of at least 70 percent throughout the period on appeal, meets the schedular requirements for a total disability rating under 38 C.F.R. § 4.16(a). Thus, the question before the Board is whether his service-connected disabilities, standing alone, preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, irrespective of age and any non-service-connected disabilities. Considering all of the evidence of record, the Board finds that the Veteran is capable of obtaining and/or maintaining sedentary employment that is consistent with his educational background and his employment history. Initially, no examiner has opined that the Veteran is incapable of performing sedentary employment; to the extent that the examination reports of record address sedentary employment, they have all concluded that the Veteran is physically capable of performing such work. The Board acknowledges that in June 2013, it remanded the matter for the third time, as previous examination reports, although indicating that the Veteran was capable of maintaining sedentary employment, failed to identify whether he was qualified for such employment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). Thereafter, however, the July 2013 examiner, after considering the Veteran's educational and employment history, found that he was capable of sedentary work, and that his service-connected medical conditions "do not preclude him from gainful employment for which he is qualified consistent with his education and occupational experience." That opinion is supported by the evidence of the Veteran's educational and employment background, which the examiner recounted. Although the Veteran did not advance past his high school diploma, he demonstrated that he is capable of working in an office environment, based on his work as a County Commissioner and with a Veterans Service Organization. The Board finds that the July 2013 examiner's opinion is the most probative evidence available concerning the Veteran's employability. The examiner fully supported his opinion, addressing the Veteran's physical abilities and his background. The examination report is consistent with the most recent psychiatric examination report (May 2012) of record, which indicated that his PTSD symptomatology would not interfere with his employment. Id. Thus, there is probative evidence that the Veteran is capable of obtaining and/or maintaining substantially gainful employment, consistent with his educational and employment history. The Board finds that the Veteran's own opinion that he is unemployable due to his service-connected disabilities is not probative. The Veteran is competent to report his symptoms, and to indicate that his symptoms have impacted his ability to work. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). He has not, however, demonstrated the necessary competency to make the finding that he is unemployable solely due to service-connected disabilities, as he does not have the medical training necessary to determine the impact of his service-connected disabilities standing alone as compared to his long history of non-service-connected disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Such a finding requires medical training, and there is no suggestion that the Veteran has the requisite training to provide such an opinion. Further, to the extent that he argues that he does not have the requisite background to perform sedentary employment - and that he could only be employed as an electrician - his argument is contrary to the evidence of record. For example, in March 2011, he argued that he could not work sedentary employment, because "the possibility of obtaining the required credentials to transfer into a new occupational specialty at this point is not a feasible option." The Veteran's work history, both as a County Commissioner and with a Veterans Service Organization, demonstrate that this argument is without merit, as he has already worked in non-electrical fields. As noted, in July 2012, he stated that he was "hinder[ed]" from performing sedentary work due to his service-connected posttraumatic stress disorder. His opinion in this regard is contrary to the most recent psychiatric opinion (May 2012) of record. That May 2012 opinion, only two months prior, specifically indicated, in fact, that the Veteran's PTSD-related impairment was insufficient to impact his employability, and further, that employment would be beneficial to reducing his PTSD symptomatology. In addition to the fact that he is not competent to argue that his PTSD would hinder his employment, Id. at 1376-77, the Board finds that, even were he considered competent to provide such an opinion, his opinion would be outweighed by the May 2012 examiner's opinion, which is supported by that examiner's training and background as a psychiatrist, that his PTSD would not impair his employability. Finally, his representative's March 2013 argument that any examination findings that the Veteran is able to perform sedentary work is "erroneous," and that there is "no evidentiary basis" to support such a finding, is contradicted by the record, as discussed above. The Board also notes that there is no medical evidence to suggest that the Veteran's service-connected disabilities, standing alone and irrespective of his non-service-connected disabilities, prevent him from engaging in employment that is not sedentary. The two opinions of record that suggest that the Veteran would be incapable of performing physical labor, specifically those of June 2010 ("[h]is breathing may preclude him from a labor-intensive job") and September 2011 (he would be unable to perform sustained light to moderate heavy labor), both included consideration of the Veteran's non-service-connected COPD in reaching those conclusions. There is, in short, no adequate opinion addressing only the physical effects of the Veteran's service-connected disabilities on his ability to obtain or maintain physical/labor intensive employment, of record. Nevertheless, the Board need not make such a finding in order to adjudicate the matter, and need not procure an additional medical opinion addressing the issue, as the evidence is clear that he is capable of maintaining sedentary employment for which he is qualified. Because he is capable of obtaining or maintaining sedentary employment, consistent with his education and occupational experience, he cannot meet the requirements to be granted a TDIU. ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs