Citation Nr: 1332822	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  05-39 273A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 27, 2008.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel






INTRODUCTION

The Veteran had active military service from May 1968 to May 1970.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from February 2004 and May 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, that denied the Veteran's claims for entitlement to a TDIU and service connection for hypertension, including as due to service-connected diabetes mellitus, respectively.

Procedurally, in October 2005, the Board remanded the Veteran's claim for a TDIU to the RO for issuance of a statement of the case (SOC).  The Veteran subsequently perfected his appeal as to that matter.  In a March 2008 decision, the Board denied the Veteran's claims for service connection for hypertension, including as due to service-connected diabetes mellitus, a rating in excess of 70 percent for posttraumatic stress disorder (PTSD), and a TDIU.

The Veteran appealed the Board's March 2008 decision to the United States Court of Appeals for Veterans Claims (court).  In April 2009, the Veteran and the VA General Counsel filed a Joint Motion for Partial Remand (Joint Motion) requesting that the matter of entitlement to an increased rating for PTSD be dismissed.  It was further requested that the issues of entitlement to service connection for hypertension and entitlement to a TDIU be remanded back to the Board.  In an April 2009 Order, the court granted the parties' Joint Motion.  The court dismissed the Veteran's claim for an increased rating for PTSD, and remanded his claims for service connection for hypertension and a TDIU to the Board for further action consistent with the Joint Motion.

In a May 2008 rating decision, the RO granted a 70 percent rating for the Veteran's PTSD, effective June 6, 2006. 

In September 2009, the Board remanded the Veteran's claims to the RO for further development.  While the remand was pending, in a January 2011 decision, the RO granted the Veteran's claim for a TDIU, effective from March 27, 2008.  As the TDIU was not granted for the appellate period prior to March 27, 2008, this was not a full grant of the benefit sought on appeal.  Thus, the issue of entitlement to a TDIU prior to March 27, 2008 remained in appellate status. 

The January 2011 rating decision also assigned an effective date of December 19, 2005, for the 70 percent rating for PTSD.

In an April 2012 decision, the Board granted an effective date of October 21, 2005 for the award of a 70 percent rating for PTSD.  At that time, the Board remanded the Veteran's claims for service connection for hypertension and a TDIU prior to March 27, 2008 to the RO for further development.

Thereafter, in January 2013, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claim of entitlement to service connection for hypertension.  See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2013).  See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995).  A VHA medical opinion was rendered in March 2013.  

In a July 2013 decision, the Board granted the Veteran's claim for service connection for hypertension.  At that time, the Board remanded the matter of entitlement to a TDIU prior to March 27, 2008 to the RO via the Appeals Management Center (AMC), in Washington, D.C.  In a July 2013 rating decision, the AMC effectuated the Board's determination, and granted service connection for hypertension that was assigned an initial noncompensable rating, effective January 28, 2005.


FINDINGS OF FACT

1.  Prior to March 27, 2008, service connection is in effect for PTSD, evaluated as 50 percent disabling from January 30, 2002 and 70 percent disabling from October 21, 2005; diabetes mellitus, evaluated as 20 percent disabling from January 8, 2001; carpal tunnel syndrome of the left and right arms, each evaluated as 10 percent disabling from October 2, 2006, and hypertension, malaria, and erectile dysfunction, each assigned noncompensable disability evaluations.  The Veteran's combined disability rating is 60 percent from January 30, 2002, and 80 percent from October 21, 2005.

2.  Resolving all doubt in the Veteran's favor, from October 21, 2005, but no earlier, the evidence of record reflects that he was unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities.  Prior to October 21, 2005, the weight of the evidence is against a finding that the Veteran's service-connected disabilities (PTSD and diabetes mellitus) precluded him from engaging in substantially gainful employment consistent with his occupational experience.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for assignment of a TDIU have been met from October 21, 2005, but no earlier.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.3.340, 4.3, 4.7, 4.16 4.18 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act (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). 

Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486. 

VCAA notice must be provided prior to an initial unfavorable 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).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent letters in June 2003, January, March, and June 2006, and June 2007, that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The March 2006 letter provided notice as to how VA assigns an appropriate disability rating or effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty 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.  All reasonably identified and available VA and non-VA medical records were obtained.  A review of the Veteran's Virtual VA electronic file shows VA medical records dated to June 2012, but does not reveal any additional evidence relevant to the claim on appeal for a TDIU prior to March 27, 2008.

The Veteran was afforded multiple VA examinations during the pendency of his claim and the examination reports are of record.  See 38 C.F.R. § 3.326 (2013).

As noted above, in July 2013, the Board remanded the Veteran's case to the AMC for further development that included assigning a disability rating for hypertension and then reconsidering his claim for a TDIU prior to March 27, 2008.  There has been substantial compliance with this remand, as in July 2013, the AMC assigned an initial noncompensable disability rating for hypertension, effective from January 28, 2005.  The Veteran's claim for a TDIU prior to March 27, 2008 was reconsidered in a July 2013 supplemental statement of the case.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  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 private treatment and examination.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. 

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.  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, 16 Vet. App. 183 (2002).

II. Factual Background and Legal Analysis

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

In February 2003, the RO received the Veteran's current claim for a TDIU.  In a December 2005 formal application for a TDIU (VA Form 21-8940), he reported that he had been unable to work since 2001, when he was worked as a laborer for Toshiba.  He had held that job since 1992.  The Veteran reported having four years of high school education.  (A May 2002 VA General Medical Note indicates that he reported dropping out of high school in the middle of twelfth grade and getting his general equivalency diploma in service.) 

In written statements in support of his claim, the Veteran variously contends that he was unable to work since 2002 or 2005 and that his TDIU claim should be effectuated from May 2004.  See Veteran's April 2011 and March 2012 written statements.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 

It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  A total disability may or may not be permanent.  Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.  38 C.F.R. § 3.340(a). 

A TDIU may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent, when it is found that the service-connected disabilities render the veteran unable to secure or follow a substantially gainful occupation.  38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013).  Unemployability associated with advancing age or intercurrent non-service-connected disability may not be considered in determining entitlement to a total compensation rating.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).  See also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Factors to be considered are the Veteran's employment history and his educational and vocational attainment.  Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). 

Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability shall be ratable at 60 percent or more; 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. 

The sole fact that a veteran is unemployed for non-service-connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant.  A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can, in fact, find employment.  See 38 C.F.R. §§ 4.1, 4.15 (2012).  In evaluating a claim for a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  As noted, consideration may not be given to the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). 

In discussing the unemployability criteria, the Court has indicated that, in essence, the unemployability question, that is, the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant.  See Moore v. Derwinski, 1 Vet. App. 83 (1991).  Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 

Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16(a).  See Faust v. West, 13 Vet. App. 342 (2000). 

The VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances.  Thus, the criteria include a subjective standard.  It was also determined that "Unemployability" is synonymous with the inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91 (1991).  In determining whether a veteran is entitled to individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered.  Van Hoose v. Brown, 4 Vet. App. at 361.  Thus, in deciding the claim, the Board may not favorably consider the effects of the Veteran's nonservice-connected disabilities with respect to their degree of interference with the Veteran's employability. 

Indeed, the Court stated that in order for a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes his case outside of the norm.  The sole fact that he is unemployed or has difficulty obtaining employment is not enough.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  See Van Hoose v. Brown, supra.  If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability.  See Gary v. Brown, 7 Vet. App. 229 (1994). 

Prior to March 27, 2008, service connection is in effect for PTSD, evaluated as 50 percent disabling from January 30, 2002 and 70 percent disabling from October 21, 2005; diabetes mellitus, evaluated as 20 percent disabling from January 8, 2001; carpal tunnel syndrome of the left and right arms, each evaluated as 10 percent disabling from October 2, 2006, and hypertension, malaria, and erectile dysfunction, each assigned noncompensable disability evaluations.  The Veteran's combined disability rating is 60 percent from January 30, 2002, and 80 percent from October 21, 2005.

Thus, prior to October 21, 2005, the Veteran did not meet the percentage prerequisites for entitlement to a TDIU under 38 C.F.R. § 4.16(a) (one disability rated at least 60 percent, or a combined rating of 70 percent or more, with one service-connected disability rated at 40 percent or more). 

In any case, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability.  38 C.F.R. § 4.16(b).  38 C.F.R. § 3.321(b)(1) (2013), that concerns extraschedular cases, indicates that extraschedular ratings are warranted for "an exceptional or unusual disability picture."  Accordingly, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based upon individual unemployability on an extraschedular basis prior to October 21, 2005.  See Van Hoose v. Brown, 4 Vet. App. at 363.

The Board recognizes that it is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b).  Bowling v. Principi, 15 Vet. App. 1 (2001).  However, here there is no favorable medical opinion to support the Veteran's claim for unemployability prior to October 21, 2005, such as to warrant referral for extraschedular consideration. 

The historical medical record shows that, prior to October 21, 2005, the Veteran was rendered unable to work by non-service-connected orthopedic injuries associated with a 1997 motor vehicle accident.  

Private neurological treatment records, dated from September 2001 to January 2003, describe the Veteran's treatment for neck and right upper extremity pain after his motor vehicle accident.

VA medical records demonstrate that the Veteran's orthopedic symtoms apparently worsened and, in November 2001, his VA primary physician took him out of work.  He subsequently stopped working due to increased neck and shoulder pain and right arm and hand numbness.

The Veteran gave a post-service history of drifting and having many jobs, according to a November 2010 VA examination report.  He worked for ten years in a cheese factory and for four years for Toshiba until his 1997 motor vehicle accident after which, he received New York State disabiity benefits.  He reported that the year before he stopped working he was written up for inappropriate behavior in a work setting and received a poor work evaluation.  The Veteran stated that he was told by his VA primary care physician in November 2001 that PTSD symptoms interfered with his ability to work successfully.

However, the pertinent medical evidence includes a November 20, 2001 VA outpatient record in which the Veteran's VA primary care physician reported that the Veteran was unable to work, as of November 26, 2001, because of severe neck pain, cervical spinal stenosis, and varicosities of both lower extremities.  This record is not referable to disablement associated with service-connected PTSD or diabetes mellitus.

A December 2001 private internal medicine evaluation, completed for the New York State Division of Disability Determinations, indicates that the Veteran complained orthopedic pain and was unable to work since November 2001 due to headache, dizziness, and hand numbness.  Diagnoses included diabetes mellitus, hypertension and cervical spondylopathy.  

In a December 2001 medical report for the New York State Office of Disability Determinations, the Veteran's VA primary care physician reported that the Veteran's treating diagnoses included diabetes mellitus, hypertension, degenerative joint disease, cervical stenosis with radiculopathy and carpal tunnel syndrome.  Neck pain radiating into the right arm and hand was noted.  A depressed mood, tearfulness, insomnia, and anhedonia were also noted. 

February, May, and August 2002 private orthopedic treatment records demonstrate that the Veteran was disabled from gainful employment due to residual injury associated with his 1997 motor vehicle accident.

March and May 2002 VA medical records show that the Veteran was diagnosed with a depressive disorder.  According to the March 2002 record, the Veteran was unemployed and left Toshiba in November 2001 because he could not tolerate the stress.  

In May 2002, a VA psychiatric examiner noted that the Veteran was easily irritated and his capacity for impulse control was compromised.  Difficulty with concentration and focusing was noted.  A score of 50 was assigned on the Global Assessment of Functioning (GAF) scale, commensurate with serious occupational impairment.  PTSD was diagnosed by that psychiatrist in August 2002.  

In October 2002, a VA social worker assigned a GAF score of 43.

The Social Security Administration (SSA) found the Veteran totally disabled primarily due to disorders of the back (discogenic and degenerative) and, secondarily, to essential hypertension, according to a March 2003 SSA Disability Determination and Transmittal record.  In his application for SSA benefits, the Veteran said he was limited in his ability to work by orthopedic injuries.

VA outpatient psychiatric clinic records, dated from June 2003 to April 2005, reflect a GAF score of 55, commensurate with moderate occupational impairment.  

VA hospitalized the Veteran for several days in May 2004, for treatment of PTSD, and the discharge summary shows a GAF score of 41, indicative of major impairment.  In July 2004, the Veteran's treating VA clinic psychiatrist assigned a GAF score of 55, reflective of moderate occupational impairment.

VA outpatient records during this time also show that the Veteran's diabetes was well-controlled with medication although, in a September 2005 signed statement, his VA primary care physician indicated that the diabetes mellitus became uncontrolled due to psychiatric stress.  A GAF score of 50 was noted in August 2005.

Here, the record shows that, prior to October 21, 2005, the Veteran was unable to work due to non-service-connected disabilities associated with his 1997 motor vehicle accident.

The schedular rating of 50 percent for PTSD is reflective of occupational impairment with reduced reliability and productivity, see 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013), and recognition that the Veteran's PTSD caused difficulty in establishing and maintaining effective work and social relationships.  As such, it contemplates significant occupational impairment due to the PTSD disability alone.  

GAF scores are a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32). 

A GAF score of 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a 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). 

Prior to October 21, 2005, the assigned GAF scores, with two notable exceptions, have been indicative of moderate to serious disability.  On one occasion the Veteran was noted to have a GAF of 43 (in October 2002) and, on another occasion (in May 2004), a score of 41, indicative of major impairment.  These were isolated findings, and importantly, even at those points, specific symptoms equating to total occupational disability due to PTSD, were not reported.  Therefore, the GAF scores on those particular occasions in this instance do not justify assignment of a TDIU. 

The schedular rating of 20 percent for diabetes mellitus is reflective of a need for insulin and restricted diet, see 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013).  As such, it contemplates essentially moderate occupational impairment due to the diabetes disability alone. 

The record shows that the Veteran has four years of high school education and, after military service, had work experience as a laborer.  During the pendency of his claim for a TDIU, initially filed in February 2003, he that he last worked full time in 2000 or 2001.  

The February 2003 SSA administrative law decision finding the Veteran totally disabled noted his "severe" impairment due to herniated discs in the cervical spine with radiculopathy, carpal tunnel syndrome, PTSD, and depressive disorder.  It was also noted that the Veteran had only moderate carpal tunnel syndrome, no limitations associated with diabetes mellitus, and that his hypertension was controlled with medication.  PTSD was noted to have a GAF score of 50.

Upon review of the pertinent evidence of record, the Board does not find evidence that service-connected disabilities (PTSD and diabetes mellitus), by themselves, precluded the Veteran from gainful employment prior to October 21, 2005.  Rather, the evidence reflects that the Veteran had significant disability due to his service-connected PTSD and diabetes disabilities that interfered with his ability to work but was rendered unemployable by non-service-connected disorders associated with his 1997 motor vehicle accident.

In the aggregate, and against the background of the Veteran's employment situation prior to October 21, 2005, the nature and extent of his service-connected disorders were such that he was not unable to obtain or maintain any type of substantially gainful employment.  

However, as of October 21, 2005, the Veteran satisfies the schedular requirements for consideration of a TDIU.  See 38 C.F.R. §§ 3.340, 4.16. 

Medical evidence indicates that, during 2006, the Veteran's GAF scores ranged from 45 to 50, commensurate with major to serious impairment.  Moreover, as will be explained below, the accompanying medical evidence for this time period supports that the Veteran's symptomatology was commensurate to such GAF scores.

A January 13, 2006 VA psychiatric treatment note reflects that the Veteran said he stayed indoors and stared at the television.

In August and December 2006, the Veteran was re-examined by the psychiatrist who performed the May 2002 VA examination.  The Veteran was noted to be easily volatile and his capacity for impulse control was compromised.  In December 2006, the Veteran's behavior showed increased psychomotor activity and he was easily excitable and thought likely to lash out.  A GAF score of 45 was noted during each examination.  

A January 2007 VA general medical examination report indicates that the Veteran had not worked since 2000 and was told he could not work because of neck problems and depression.  Before his motor vehicle accident, the Veteran never missed work.  

A January 2007 VA diabetes mellitus examination report indicates that the Veteran's diabetes mellitus restricted him.  The Veteran experienced fatigue, hit things, and bruised his shins.  

A February 2007 VA medical record indicates that the Veteran was doing well with his diabetes mellitus, but had diabetic neuropathy because of complications of generalized pain and cold feet.

In an April 26, 2007 signed statement, a VA supervisory social worker noted that the Veteran attended regular outpatient PTSD group sessions.  He noted the that records from the past few years showed GAF scores that ranged from 41 to 50, indicative of serious impairment and there where times when the Veteran bordered on a GAF of 40.  It was noted that the Veteran's years with no treatment solidified his maladaptive coping mechanisms.

According to an October 27, 2007 VA treatment record, a neurologist reported that the Veteran's diabetes predisposed the Veteran to developing neuropathy and radiculopathy.  He did not have diabetic polyneuropathy but developed carpal tunnel syndrome and lumbar radiculopathy.  The radiculopathy was exacerbated by the service-connected diabetes mellitus and the Veteran was more prone to developing neuropathic problems due to his service-connected diabetes mellitus.

The current schedular rating of 70 percent for the Veteran's PTSD is reflective of occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  As such, it further supports a finding of severe, or at least very significant, occupational impairment due to PTSD.

The Veteran's current 20 percent rating for diabetes mellitus is commensurate with moderate occupational impairment, as discussed above.  See 38 C.F.R. § 4.119, Diagnostic Code 7913.

The current schedular ratings of 10 percent for left and right arm carpal tunnel syndrome are reflective of mild incomplete disability of the median nerve.  See 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2013).  As such, the ratings further support a finding of mild occupational impairment due to carpal tunnel syndrome.

From October 21, 2005, the probative evidence of record demonstrates that the Veteran has been severely disabled by service-connected PTSD, diabetes mellitus, right and left arm carpal tunnel syndrome, hypertension, erectile dysfunction, and malaria.  The evidence is deemed to be at least in equipoise on the essential question at issue, whether the Veteran is precluded from employment due to his service-connected disabilities.

When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  In Gilbert, supra, the court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  In Gilbert, the court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. 

Resolving all doubt in favor of the Veteran, the Board finds that he is entitled to a grant of a TDIU from October 21, 2005, but no earlier.  As such, the benefit sought on appeal is allowed to this limited extent.

The Board further finds, based on the preponderance of the evidence of record, that prior to October 21, 2005, the Veteran's service-connected PTSD and diabetes mellitus did not preclude him from obtaining and maintaining substantially gainful employment consistent with his education and past work experiences, and the Veteran's claim for TDIU is denied prior to October 21, 2005.  See 38 C.F.R. §§ 3.340, 3.341, 4.16. 

Given that the Veteran's PTSD and diabetes mellitus has not been shown to have precluded unemployability prior to October 21, 2005, referral for an extraschedular opinion in this case is not necessary as noted supra, as the Board has not found evidence of unemployability in the first instance which demonstrates an "exceptional or unusual disability picture" on which an extraschedular evaluation could be based.  See 38 C.F.R. § 3.321. 


ORDER

Entitlement to a TDIU is granted from October 21, 2005, but no earlier, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs