Citation Nr: 1333884 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 05-04 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to July 1981. This matter is on appeal from rating decisions in September 2003 and January 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied a claim of entitlement to a rating in excess of 30 percent for a right shoulder disability. Although the issue of entitlement to TDIU was not explicitly raised, a claim for an increased rating is construed as a claim for the highest rating possible to include entitlement to TDIU if raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In a September 2012 decision, the Board determined that a rating in excess of 30 percent was not warranted for the Veteran's right shoulder disability, but remanded the issue of entitlement to TDIU for further development and consideration. The necessary development having been completed, the appeal is now ready for disposition. FINDING OF FACT For the period since May 30, 2013, the evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU for the period since May 30, 2013, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist 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, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in August 2006 and April 2013 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. They also provided the Veteran with notice of what type of information and evidence was needed to establish TDIU, and notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records and records submitted in conjunction with a claim to the Social Security Administration (SSA). Further, the Veteran submitted treatment records from a private facility and his own statements in support of his claim. VA examinations relevant to the issue on appeal were also obtained in November 2007 and January 2011. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. In any event, as the question before the Board relates to his current symptomatology, there is no reasonable method to correct any deficiencies in prior examinations. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, it is noted that this appeal was remanded by the Board in September 2012 for further development. Specifically, the Board instructed the RO to send the Veteran notice on the evidence necessary to warrant TDIU and to afford him a new VA examination for an opinion as to whether his service-connected disabilities preclude his ability to obtain gainful employment. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was sent a new notice letter in September 2012, and he was provided a VA examination in May 2013, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in June 2013. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any nonservice-connected disabilities or a Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose, 5 Vet. App. at 375. In this case, the Veteran is service connected for an acquired psychiatric disability, instability of the right shoulder, stomach disorder and erectile dysfunction. While his original total disability rating was 50 percent, a June 2013 rating decision increased the disability rating for his psychiatric disability from 30 to 70 percent, effective May 30, 2013. This also increased his combined disability rating to 80 percent. As a result, he did not have a single disability rating of 60 percent or more, or a combined disability rating of 70 percent or more, and the requirements under 38 C.F.R. § 4.16(a) have were not met prior to May 30, 2013. However, since he has a single disability rating in excess of 60 percent since May 30, 2013, the requirements of 38 C.F.R. § 4.16(a) have been met since that date. As the Veteran did not meet the schedular criteria for TDIU prior to May 30, 2013, the Board must now consider whether TDIU may be warranted on an extraschedular basis for the period prior to this date. As an initial matter, it is not entirely clear in the record how the Veteran became unemployed in the first instance. At a November 2007 VA psychiatric examination, he stated that he was not currently employed, and had not been employed for approximately "10 to 20 years." He explained at that time that he took time off from work to take care of his sick mother, and that "6 months turned into 5 years because she kept getting sick." By that time, the Veteran explained that he "would not know what to do with a job." Despite his relatively mild psychiatric symptoms observed by psychiatrists at that time, he stated that he did not like leaving his home. As such, the Veteran does not attribute his unemployment to any specific event. Indeed, he has never truly asserted that he was unemployable, but instead indicated that he had no motivation to seek employment. The evidence also does not indicate that he was unemployable due to his service-connected disabilities. For example, at a VA examination in January 2011 that was specifically directed toward his right shoulder disability (his only physical disability that is at a compensable level), the examiner noted that the Veteran was unable to position his right arm above chest level for purposes of doing any work. However, he nevertheless would be able to place his arm on a table and use it in this capacity without pain. The examiner also believed that the Veteran would be able to perform less work-intensive tasks such as handling or assembling small parts, use light tools and keyboard use. While the examiner also noted that the Veteran would not be able to drive a commercial vehicle or use potentially hazardous equipment, using public transportation was not beyond his abilities. As such, while many have observed that the Veteran is unemployed, no evaluating professional has asserted that he is necessarily unemployable during this period. The Board has also considered the Veteran's statements regarding his unemployability, and 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence that is to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify whether or not he is unemployable due to his service connected disabilities. Moreover, the Board finds that any assertions that the Veteran has made regarding his unemployability are of diminished credibility. Notably, while he has complained of pain that has led to a certain amount of incapacitation, much of his pain is to nonservice-connected areas. For example, although he has pain to his shoulder, he has also attributed much of his pain to a hand injury in 1989 and a knee injury, neither of which is service connected. The Veteran's assertions of unemployability are also somewhat offset by the observations made by his brother-in-law, who submitted a statement to the Social Security Administration in February 2005. Specifically, although the Veteran has routinely characterized himself as antisocial and unmotivated, this appears contradicted by his brother-in-law's observation that the Veteran does have hobbies and interacts with his family. The brother-in-law also noted that there was no problem with the Veteran's attention span and that the Veteran "would like to be more proactive" in working toward gainful employment. As a result, the Board determines that TDIU is not warranted prior to May 30, 2013, as he does not meet the schedular requirements for this benefit. Moreover, although the Veteran has not been employed for many years, the evidence does not establish that he is necessarily unemployable due specifically to his service-connected disabilities. Consequently, referral to the Director of Compensation and Pension Service for extra-schedular consideration is also not warranted for this period. However, in view of the June 2013 rating decision that increased the Veteran's rating for his acquired psychiatric disability to 70 percent, effective May 30, 2013, the Board determines that TDIU is warranted from this date. As an initial matter, since he now has a single service-connected disability that is rated at 60 percent or more, the requirements under 38 C.F.R. § 4.16(a) have now been met. Moreover, given the apparent worsening of the Veteran's psychiatric symptoms, the evidence now indicates that he is unemployable due to his service-connected disabilities. For example, at his VA psychiatric examination in May 2013, he stated that he had stopped bathing and "even goes a couple of days without eating." He also experiences symptoms such as panic attacks, insomnia and nightmares. His motivation is reduced and he gets angry easily. While the examiner noted that the Veteran handles his own finances, it was also noted that he filed for bankruptcy on two occasions. After the completion of the psychiatric evaluation, the VA examiner opined that the Veteran "had the mental capacity to secure and sustain gainful employment under modified conditions and only if he remains in psychiatric treatment." However, in the Board's view, the fact that the examiner felt necessary to place qualifiers on her opinion undermines its probative value. Moreover, she further stated that, if the Veteran's mood declines, he was "unlikely to work until his depression stabilizes again." Obviously, proper treatment and control of the Veteran's symptoms would likely increase his employability. However, the evidence of record does not suggest that this is reasonably likely to happen. The Board also notes that the Veteran underwent a separate VA examination in May 2013 that was directed specifically toward his physical disabilities. On that occasion, after a full review of the Veteran's medical history and a physical evaluation, the examiner opined that the Veteran was not unemployable due to his service-connected physical disabilities. In support of this opinion, the examiner reflected that, under SSA regulations and criteria, the Veteran should be able to perform sedentary and light skilled or unskilled workloads. Citing http://www.ssa.gov/disability/step4and5.htm (October 23, 2013). Although this VA examiner has opined that the Veteran is not unemployable due to his physical disabilities, there was no discussion of the impact of the Veteran's psychiatric disorder on his ability to overcome the challenges presented by his service-connected physical disabilities. In fact, the evidence suggests that it is his psychiatric disorder that is most predominant of his disabilities. Moreover, it was improper for the VA examiner to rely on SSA rules and regulations in supporting her opinion. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994) ("There is no statutory or regulatory authority for the determinative application of SSA regulations to the adjudication of VA claims"). As a consequence, even though this VA examiner has opined that the Veteran is employable despite his physical disabilities, the opinion is not adequate for adjudication purposes. Therefore, in view of the apparent worsening of psychiatric symptoms observed at the Veteran's May 2013 VA examination, the Board determines that his service-connected disorders preclude gainful employment effective from that date. As such, TDIU is warranted from May 30, 2013, and the appeal is therefore granted to this extent. ORDER TDIU for the period since May 30, 2013, is granted, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs