Citation Nr: 1333140 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-34 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from July 1967 to July 1971, to include a tour of duty in the Republic of Vietnam. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas. In April 2013, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that his service-connected disabilities preclude him from engaging in substantially gainful employment consistent with his education and occupational experience. Total disability ratings for compensation will 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. 38 C.F.R. §§ 3.340 and 4.16(a). However, if there is only one such disability, it shall be ratable at 60 percent or more, and, 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. § 4.16(a). For the above purpose of one disability rated at 60 percent, or one disability rated at 40 percent, the following are to be considered a single disability: disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system. Id. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court noted that "a claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity." The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate 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 (1993). Service connection is in effect for PTSD, rated at 30 percent from November 18, 2005, and 50 percent from October 29, 2012; diabetes mellitus with impotency, onychomycosis, and nephropathy with hypertension, rated at 20 percent from October 8, 2001, and 40 percent from October 2007; peripheral neuropathy of the right upper extremity associated with diabetes mellitus, rated at 10 percent from October 8, 2001; peripheral neuropathy of the left upper extremity associated with diabetes mellitus, rated at 10 percent from October 8, 2001; peripheral neuropathy of the right lower extremity associated with diabetes mellitus, rated at 10 percent from October 8, 2001; peripheral neuropathy of the left lower extremity associated with diabetes mellitus, rated at 10 percent from October 8, 2001; tinnitus, rated at 10 percent from June 19, 2002; and bilateral hearing loss, rated as noncompensable from June 9, 1986, and at 10 percent from December 12, 2007. The Veteran's claim for service connection for PTSD was received on November 18, 2005, and his claim of entitlement to a TDIU was received in December 2007. The Veteran has had a combined disability rating of 70 percent from November 18, 2005; 80 percent from October 17, 2007; and 90 percent from October 29, 2012. In light of the disabilities associated with the Veteran's service-connected diabetes mellitus, which can be described both as arising from a common etiology and affecting a single body system, as per 38 C.F.R. § 4.16, the Veteran has met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), over the entire period of this appeal. The remaining question is whether his service-connected disabilities, either alone or in the aggregate, prevent him from securing or following a substantially gainful occupation. In this regard, a VA examination report dated in December 2005 shows that the Veteran was said to have been employed part-time in security over the preceding two to five years. He described that he would typically keep his job for two to three years, but that he had a tendency to say what was on his mind and to want things right which would lead to his dismissal. A Social Security Administration disability determination dated in April 2008 shows that the Veteran was found to be disabled with a primary diagnosis of diabetes and a secondary diagnosis of affective disorder. A VA examination report dated in April 2009 shows that the Veteran reported that he would typically quit jobs because he would get into fights, and that he had a tendency to say what was on his mind and to want things right. The VA examiner added that it appeared that the Veteran had occupational difficulties in the past related to his rigidity and "perfectionist" tendencies. A medical report from a VA psychiatrist dated in February 2010 shows that the Veteran was diagnosed with chronic PTSD. The examiner indicated that with his current symptoms, it would be difficult to get or maintain a job. A VA examination report dated in October 2012 shows that it was indicated that the Veteran had not worked since 2008 due to his mother's continued poor health and decline in his own health. He added that he had a buttock injection in June 2012 that that, since then, he had problems with chest pain, hand pain, and aching all the time. He also reported problems with walking. The examiner indicated that the Veteran's psychiatric disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). In light of the foregoing, the Board finds that the Veteran's claims file does not provide sufficient information to render an opinion as to whether he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either alone or in the aggregate, taking into consideration his level of education, special training, and previous work experience. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. As such, on remand, the Veteran should be afforded a VA examination, to determine the extent of his service-connected disabilities, and to determine whether they render him unable to secure or follow a substantially gainful occupation, either alone or in the aggregate, taking into consideration his level of education, special training, and previous work experience. The Board notes that the Court has held that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant appeals period but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). On remand, the VA examiner should also be requested to provide a retrospective medical as to whether the Veteran was not employable due to his service-connected disabilities over the entire course of this appeal. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his service-connected disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall ask the Veteran to identify all locations of VA treatment or evaluation for his service-connected disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall schedule the Veteran for a VA examination, to assess the effect the Veteran's service-connected disability has on his ability to work. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. All testing deemed necessary by the examiner must be undertaken. The examiner is requested to opine as to whether it is at least as likely as not that the Veteran's service-connected disabilities, either alone or in combination, precluded him from securing or following substantially gainful employment, taking into consideration his level of education, special training, and previous work experience, and if so, when service-connected disability rendered him unemployable. The opinion must include an assessment on the Veteran's ability to secure or follow substantially gainful employment over the entire course of this appeal by providing a retrospective medical opinion following a review of the medical and lay evidence of record. It is noted that service connection is in effect for PTSD; diabetes mellitus with impotency, onychomycosis, and nephropathy with hypertension; peripheral neuropathy of the right and left upper and lower extremities associated with diabetes mellitus; tinnitus; and bilateral hearing loss. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it shall be undertaken prior to further claims adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).