Citation Nr: 1332044 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-23 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran had active service from May 1989 to April 1995 and received an honorable discharge for this period of active service. The Veteran also served from May 1995 to June 1998 and received an "other than honorable" discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a June 2011 decision, the Board found that the issue of entitlement to a TDIU was part and parcel to the Veteran's claim for an increased rating for migraine headaches pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and added the issue of entitlement to a TDIU to the issues on appeal. The issue of entitlement to a TDIU was remanded by the Board for additional development and has been returned to the Board for review. In March 2011, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge with respect to the issues of entitlement to an increased disability rating for migraine headaches and entitlement to service connection for hypertension (the issues are not currently before the Board). A transcript of the hearing is associated with the claims file. In June 2011, the Board remanded the issue of entitlement to service connection for hypertension for additional development. In a May 2013 rating decision, the RO granted service connection for hypertension. As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). FINDING OF FACT The most probative evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a statutory and regulatory duty to notify claimants seeking benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). As discussed in the June 2011 remand, the Board found that the issue of entitlement to a TDIU was raised as part and parcel to the Veteran's claim for an increased disability rating for migraine headaches. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In connection with his claim for an increased disability rating, the Veteran was sent notification letters in December 2007 and June 2008. While the letters did not list TDIU as an issue (as it was subsequently added to the appeal by the Board), the letters informed the Veteran of how disability ratings and effective dates are assigned, including the type and examples of evidence considered in determining disability ratings and effective dates. Therefore, the Board finds that the letters were sufficient to meet the VA notice requirements. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Even if the letters were insufficient, any error is harmless. Insufficiency in the timing or content of VA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (Notice errors are reviewed under a prejudicial error rule). The May 2013 Supplemental Statement of the Case (SSOC) set forth the criteria for a TDIU and the Veteran was also informed of the raised claim for entitlement to a TDIU in the Board's remand. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Of final note, the record shows that the SSOC was returned as undeliverable to the RO in June 2013 after it was initially mailed to a street address rather than a PO Box address. However, the SSOC was re-sent in July 2013 and there is no indication that the SSOC was returned as undeliverable or that the Veteran did not receive the SSOC. There is a presumption of regularity that government officials "have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found. Ind. 272 U.S. 1, 14-15 (1926). As to the duty to assist, VA has secured all available and identified evidence including the Veteran's service treatment records, VA treatment records, and private treatment records. In April 2012, following the Board's remand, the Veteran requested that all medical treatment from VA be associated with his claims file. The updated VA treatment records were obtained and considered in the SSOC. In addition, the Veteran was provided a VA examination in April 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The April 2013 VA examiner reviewed the claims file, examined the Veteran, considered the Veteran's history, and provided an opinion with a supporting rationale. Therefore, the examination and opinion are adequate. The Board acknowledges that the Veteran is service-connected for PTSD, but was not examined with respect to his service-connected PTSD by the April 2013 examiner. However, the prior VA examination reports conducted with respect to the Veteran's PTSD are associated with the claims file and the Veteran has not contended that his PTSD has worsened since the June 2010 VA examination. The VA examiner reviewed the entire claims file and provided an opinion that the veteran does not currently have migraines or any combination of service connected conditions which render him unable to follow a substantially gainful occupation. Therefore, the examiner considered the effects of all service-connected disabilities and the examination and opinion are adequate. The June 2011 remand directives were substantially completed. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran testified at a March 2011 hearing before the Board with respect to his claims for an increased rating for migraines and entitlement to service connection for hypertension. At the time of the hearing, a claim for entitlement to a TDIU was not raised by the Veteran or indicated by the record at that time. While the Veteran discussed that he missed work, he testified that he was currently employed. Subsequently, in the June 2011 decision, the Board found that the issue of entitlement to a TDIU had been raised. Therefore, at the time of the March 2011 hearing, the VLJ was not required to comply with 38 C.F.R. § 3.103(c)(2) with respect to the issue of entitlement to a TDIU as the issue was not raised or on appeal. The Veteran has not claimed otherwise and has not requested a hearing in connection with the issue of entitlement to a TDIU. No further discussion of 38 C.F.R. § 3.103(c)(2) is required. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 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); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In this case, service connection is in effect for posttraumatic stress disorder (PTSD), rated at 70 percent disabling; irregular heartbeat, rated at 30 percent disabling; migraine headaches rated at 30 percent disabling; tinnitus, rated at 10 percent disabling; hypertension rated at 0 percent disabling, and erectile dysfunction rated at 0 percent disabling. The minimum schedular criteria for TDIU are met. 38 C.F.R. § 4.16(a). The question therefore becomes whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. The VA treatment records reflect treatment for the Veteran's service-connected disabilities. In a January 2007 VA treatment record, the Veteran stated that he was afraid of having an anxiety attack at work and losing his job. A June 2008 VA treatment record noted that the Veteran missed work frequently because of his depression and anxiety. A VA treatment record shows that the Veteran was hospitalized for suicidal and homicidal thoughts from June 2, 2008 to June 6, 2008. In an August 2010 VA treatment record, the Veteran discussed that he missed several days at work due to poor energy and motivation. He stated that that he needed to get another kind of job that was less stressful. He planned to continue working, but may consider other options when the opportunity comes up. The Veteran was provided a VA examination for his PTSD in January 2008. The Veteran reported that he was employed full-time and was employed at his current job for two to five years. The Veteran stated that he lost four weeks of work during the last twelve month period. He missed work a lot because of depression and he was not getting up out of bed. He was suspended from work for two weeks and written up at work due to his temper. The Veteran reported an increased difficulty of getting along with others at work, which affected his future employment status. The examiner noted that the Veteran reported recently missing a week and a half of work due to feeling tired and unmotivated. He had been cited at work and penalized for poor work performance during the past year. The examiner stated that there was not total occupational and social impairment due to PTSD signs and symptoms, but there was reduced reliability and productivity due to PTSD symptoms. The examiner listed a Global Assessment of Functioning (GAF) score of 45. The examiner explained that the Veteran's symptoms seemed to be worse with increased absentness from work and difficulty getting along with peers at work. In May 2008, the RO received copies of requests for leave from the Veteran's job at Wal-Mart. The Veteran requested leave under Family and Medical Leave Act (FMLA) for the following dates: December 3, 2005 to December 6, 2005, from July 29, 2005 to August 2, 2005, from February 25, 2006 to March 3, 2006, from March 10, 2006 to March 20, 2006, from May 8, 2006 to May 11, 2006, from October 28, 2006 to October 30, 2006, from November 25, 2006 to November 27, 2006, from April 1, 2007 to April 4, 2007, from July 13, 2007 to July 15, 2007, and from November 17, 2007 to November 20, 2007. In a May 2008 letter, the Veteran stated that his migraines caused him to miss work and left him unable to do everyday activities. He stated that he enclosed all of his leaves of absence that his physician signed when he had to miss work because of his migraines. The Veteran was provided a VA examination for his PTSD in July 2008. The Veteran reported that he was working full-time and lost 8 weeks of work during the last twelve month period. The cause of the time lost from work was hospitalization for suicidal ideation and lack of motivation and energy to go to work. The examiner indicated that there was not total occupational and social impairment due to PTSD signs and symptoms, but there was reduced reliability and productivity due to PTSD symptoms. The Veteran reported a significant history of social estrangement and increased irritability which affected his ability to get along with others at work. He was counseled at work for aggressive behavior and anger toward his peers. He experienced a lack of motivation and decreased energy resulting in a poor job performance. The examiner assigned a GAF score of 45. The Veteran was provided VA examinations in July 2008 with respect to his service-connected irregular heartbeat and erectile dysfunction. The examiner indicated that the Veteran's irregular heartbeat had significant effects on his occupation to include memory loss, decreased concentration, lack of stamina, weakness or fatigue, and pain, which resulted in increased absenteeism. With respect to erectile dysfunction, the examiner indicated that there were no significant effects on his occupation. With respect to migraine headaches, there were no significant effects on his occupation. During migraine attacks, normal activity was not possible, but when migraines were not present, there was no effect on daily activity or work activity. In a June 2009 statement, the Veteran explained that he averaged about three to four migraine attacks per month and they lasted roughly two to three days. He stated that a migraine will keep him home for the first couple of days and leave him unable to do anything. He stated that he missed a lot of work due to his migraines and he missed a lot of work due to his PTSD and depression. He stated that he had been hospitalized several times for PTSD and depression. The Veteran was provided a VA examination in June 2010 with respect to his PTSD. The Veteran stated that he worked at Wal-Mart since 2003 and he was currently an area manager at a Wal-Mart distribution center, overseeing the shipping department. The Veteran reported that the job was stressful and in the last twelve months, he estimated that he missed work about half the time. He had no leave left, so this was a salary reduction. The Veteran reported that he lost two weeks per month in the last twelve month period. The Veteran had inappropriate behavior which manifested in episodes of acting out with verbal hostility at work and regrettably directed at his supervisor. The examiner listed a GAF score of 41, which indicated "serious symptoms" or "any serious impairment in social/occupational functioning." The examiner stated that the Veteran had serious/severe PTSD symptoms with associated severe depression symptoms, causing serious/severe impairment both occupationally and socially. The examiner stated that there was not total occupational and social impairment, but PTSD signs and symptoms resulted in deficiencies in judgment, thinking, family relations, work, mood, or school. The examiner indicated that the capacity for occupational function was serious (but not totally) impaired. Examples of occupational problems included having missed work about half the time during the past year, often due to effects or trauma dreams and poor sleep, episodes of inappropriate anger directed at his supervisor, and problems with memory and concentration undermining capacity to follow instructions and general occupational productivity/efficiency. The Veteran was provided VA examinations in June 2010 with respect to his other disabilities. In regard to migraine headaches, he experienced weekly migraines. He reported that he missed work about five days per month on average. The effects on occupational activities were decreased concentration and pain. The Veteran was listed as currently employed at Wal-Mart and he reported that he lost approximately twelve weeks of work during the past twelve month period. With respect to hypertension, the examiner stated that the hypertension had no effects on the Veteran's usual occupation. The examiner explained that there were no effects on employment or usual daily activities when taking medication as prescribed and blood pressure was at least partially controlled. During the March 2011 hearing, the Veteran testified that he missed about five days per month due to his migraines. He stated that his employer counseled him on missing so much time and that termination was a possibility if this continued. The Veteran submitted copies of certifications of health care provider for associate's serious health condition for leave from his employment. In a July 2011 certification, the Veteran's physician stated that the Veteran had PTSD, diabetes mellitus, heart condition, migraines, and hypertension. The physician checked the box "No" when asked if the associate was unable to perform any of his/her job functions due to the condition. The physician checked the box "Yes" when asked if the Veteran needed follow-up treatments or work part-time or on a reduced schedule because of the associate's medical condition. The physician stated that the Veteran's treatment schedule was two times per month. The physician indicated that the condition can cause episodic flare-ups periodically preventing the associate from performing his/her job functions and that it was medically necessary for the associate to be absent from work during flare-ups. The physician stated that PTSD and migraines were a problem that caused the Veteran to miss the most work. His diabetes and cardiac arrhythmias were uncontrolled and medications caused drowsiness. The Veteran was unable to work efficiently when in pain or when PTSD flared. The frequency of flare-ups was listed as one time per month for approximately two to three days per episode. In a January 2011 certification, the Veteran's physician noted that the Veteran had PTSD, diabetes mellitus, heart condition, and migraines. The physician checked the box "No" when asked if the associate was unable to perform any of his/her job functions due to the condition. The physician checked the box "Yes" when asked if the Veteran needed follow-up treatments or work part-time or on a reduced schedule because of the associate's medical condition. The physician stated that the Veteran's treatment schedule was two times per month. The physician indicated that the condition can cause episodic flare-ups periodically preventing the associate from performing his/her job functions and that it was medically necessary for the associate to be absent from work during flare-ups. The physician stated that PTSD and migraines were a problem that caused him to miss the most work. His diabetes and cardiac arrhythmia were uncontrolled and medications caused drowsiness. He was unable to work efficiently when in pain or when his PTSD flared. The Veteran was provided a general VA examination in April 2013. The claims file was reviewed. The examiner noted that the Veteran worked from 2004 to the present at Wal-Mart and was a manager in a distribution center. He was currently assigned to work forty hours per week. With respect to irregular heartbeat, the examiner found that there were no limitations or effects from this condition on the Veteran's ability to perform physical or sedentary work. With respect to migraine headaches, the examiner stated that the Veteran missed ten to twenty hours of work per week out of his scheduled forty hours of work due to migraines. He occasionally developed a migraine while at work, but not very often. He had been able to maintain his position as a manager for Wal-Mart for several years despite the absences for migraines. Since he never goes to work or stays at work while having a migraine, there were no additional effects besides missing the work hours as described above. With respect to erectile dysfunction, the examiner noted that there were no effects on his ability to perform physical or sedentary work activity. The examiner stated that the Veteran had migraines two to three times per week. They usually started in the morning or early afternoon before he went to work. He worked from 3:30 PM to 2:30 AM four days per week. When he has a migraine, he takes abortive medications at the onset but reported that he still was not able to go to work. He missed on average one to two days per week (ten to twenty hours out of his scheduled forty hours) per week due to his migraines. He occasionally developed a migraine while at work but not very often. He has been able to maintain his position as a manager for Wal-Mart that he has been doing for several years despite the absences due to migraines. From the Veteran's description, he was unable to perform any work for one to two days out of every four assigned work days when he is unable to perform any work. The remaining days, he was able to function fully and complete all job tasks in his current occupation as a manager for Wal-Mart which he held for several years. The examiner stated: ". . . the veteran does not currently have migraines or any combination of service connection conditions which render him unable to follow a substantially gainful occupation." This was based on an understanding of "substantially gainful occupation" being more than marginal employment. In a notice of designation from FMLA, it was decided that the Veteran's FMLA leave request was approved and that all leave taken for this reason (medical) will be designated as FMLA leave up to the maximum of available FMLA leave time. FMLA checked the box that indicated: "Provided there is no deviation from your anticipated leave schedule, the following number of hours, days, or weeks will be counted against your leave entitlement: All Hours missed 8/12/11 - 2/12/12." In consideration of the above and the entire record, the Board finds that the most probative evidence does not reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In arriving at this conclusion, the Board recognizes that the Veteran's service-connected disabilities undoubtedly impact his occupation. The Veteran has reported that he missed work due to his PTSD and migraine headaches. As indicated above, the treatment records and VA examination reports show that the Veteran reported impaired concentration, decreased motivation and energy, memory impairment, pain, increased irritability, and poor interaction with co-workers. During the April 2013 VA examination, the Veteran reported that he missed ten to twenty hours of assigned work per week due to migraines. In the certifications of health care provider for associate's serious health condition for leave, the Veteran's physician indicated that the Veteran missed work due to his migraines and PTSD and must miss work when he had flare-ups. However, the Veteran's physician checked "No" when asked if the Veteran was unable to perform any of his/her job functions. Nonetheless, the relevant inquiry is whether the Veteran is "unable to secure or follow a substantially gainful occupation," by reason of his service-connected disabilities. The Board points out that the assignment of a disability rating is "based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it." 38 C.F.R. § 4.15. 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. The Board finds that the April 2013 VA examiner's opinion is the most probative evidence of record addressing the question as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The examiner reviewed the claims file, examined the Veteran, discussed the Veteran's history including his absenteeism from work, and opined that ". . . the veteran does not currently have migraines or any combination of service connection conditions which render him unable to follow a substantially gainful occupation." Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner explained that the Veteran has held his job for several years despite his absences and when he does not experience migraine headaches, he was able to fully perform his job duties. Therefore, the Board finds that the Veteran is not entitled to a TDIU. The Veteran has submitted several statements and expressed his belief that his PTSD and headaches have caused him to miss work and indicated that he was experiencing difficulty following his occupation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran has not indicated that he is unemployed or cannot continue to work, but that he missed a lot of work due to his service-connected disabilities. While the Veteran is certainly competent to attest to the lay observable symptoms of his service-connected disabilities and his experiences at work to include his absenteeism, the Board finds that the April 2013 VA examiner's opinion is the most probative evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In this respect, the VA examiner has medical expertise, reviewed the entire claims file and the Veteran's history, discussed the Veteran's statements, and found that the Veteran was not unable to secure or follow a substantially gainful occupation due to his migraines alone or a combination or his service-connected disabilities. Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against entitlement to TDIU. As such, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, a TDIU is not warranted. ORDER Entitlement to a TDIU is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs