Citation Nr: 1334717 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-16 341 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a total rating due to individual unemployability caused by service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from November 2001 to November 2005. This case was previously before the Board of Veterans' Appeals (Board) in September 2012. The Board noted that in conjunction with an increased rating claim, the Veteran had raised contentions to the effect that he was entitled to a TDIU. Therefore, the Board remanded the case to the RO for further development. The Board directed the RO to 1) notify the Veteran of the information and evidence necessary to substantiate his claim; 2) provide the Veteran with formal claim for a TDIU (VA Form 21-8940) and request that he complete and return the form; and 3) schedule the Veteran for a VA general medical examination to address whether or not his service-connected disabilities rendered him incapable of securing and following a substantially gainful occupation. Following the requested development, the RO denied the Veteran's claim of entitlement to a TDIU. Thereafter, the claim was returned to the Board for further appellate action. In July 2012, during the course of the appeal, the Veteran had a hearing before the Acting Veterans Law Judge whose signature appears at the end of this decision. The hearing transcript shows the presiding Acting Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) (2013) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript of the hearing shows the presiding Acting Veterans Law Judge clarified the fact that the Veteran was seeking a TDIU, permitted the Veteran's representative to question the Veteran, clarified points raised by the Veteran, and as the hearing was closing, asked the Veteran and his representative if they had anything to add. As such, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). FINDINGS OF FACT 1. The Veteran has a combined rating of 70 percent due to the following service-connected disabilities: posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling; right shoulder strain with instability, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; right carpal tunnel syndrome, evaluated as 10 percent disabling; bilateral pes planus, evaluated as noncompensable; and a left ear hearing loss disability, evaluated as noncompensable. . 2. The Veteran has a high school education and work experience in service in communications in which he did a lot of typing, as well as after service as a construction worker and shrimper and with a telephone answering service. 3. The Veteran's service-connected disorders do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of his claim of entitlement to a TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In February 2013, VA notified the Veteran of the criteria for a TDIU and the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. 38 U.S.C.A. § 5103(a). Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of records reflecting the Veteran's VA treatment from February 2006 through August 2010; the report of a February 2006 psychological evaluation by R. S. K., III, Psy.D; the records reflecting the Veteran's private medical treatment for a right shoulder disorder in 2007; the Veteran's Social Security records; and the transcript of his July 2012 hearing before the undersigned Acting Veterans Law Judge. In September 2005, July and September 2007, August 2010, and May 2013, VA examined the Veteran to determine the extent of impairment attributable to his various service-connected disorders. In May 2013, multiple VA examinations were performed to consider whether the Veteran's service-connected disabilities, individually or collectively, precluded the Veteran from securing and following a substantially gainful occupation. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran; documented his medical conditions, and rendered findings, diagnoses, and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal When the veteran's schedular rating is less than total, a total rating may nonetheless be assigned. When, as in this case, there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more. In addition, the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. VA adjudication manual, M-21-1 Part VI, Para. 7.14(a) (Change 52, Aug. 26, 1996). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Any consideration as to whether the veteran is unemployable is a subjective one, that is, one that is based upon the veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); VAOPGCPREC 75-91. Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to TDIU. 38 C.F.R. § 3.341(a), 4.19 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During his July 2012 hearing, the Veteran testified that he was unable to work due to his multiple service-connected disorders. He stated that they caused difficulty walking, impaired lifting ability, and an inability to work overhead. In addition, he reported that his PTSD made it difficult to comprehend instructions. Therefore, he maintained that he was unemployable and entitled to a TDIU. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. A review of the evidence discloses that the Veteran has a combined rating of 70 percent due to the following service-connected disabilities: PTSD, evaluated as 50 percent disabling; right shoulder strain with instability, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; right carpal tunnel syndrome, evaluated as 10 percent disabling; bilateral pes planus, evaluated as noncompensable; and a left ear hearing loss disability, evaluated as noncompensable. These ratings meet the criteria for a TDIU under 38 C.F.R. § 4.16(a); and, therefore, the salient question is whether those disorders preclude him from securing and following a substantially gainful occupation, consistent with his education and work experience. Although the Veteran did not complete and return VA Form 21-8940, the report of his September 2005 VA examination shows that in service, his primary duties were in communications in which he did a lot of typing. His post-service medical records and Social Security records show that he has a high school education and work experience as a construction worker and shrimper and at a telephone answering service. He was part owner of a shrimp boat with his father, and he worked part-time while going to school for a residential construction certificate. The work with the telephone answering service was reportedly seasonal in nature and only lasted approximately 3 months. While part time employment in a protected environment or short-term employment is not a substantially gainful occupation, the evidence does not show that he is precluded for pursuing an occupation due to his service-connected disabilities. The Veteran's multiple service-connected disabilities impair his ability to work. Such impairment is contemplated by his current disability ratings and was noted during assessments of the Veteran's functional capacity and psychiatric processes in conjunction with his claim for Social Security benefits. It was also noted during May 2013 VA examinations of each of the Veteran's service-connected disabilities, as well as a general medical examination to determine the combined effect of those disabilities on his ability to work. During a January 2010 Social Security assessment of the Veteran's functional capacity, the examiner noted that the Veteran's primary physical symptom was pain. The examiner found the Veteran's complaints partially credible but noted that the severity of his complaints was not consistent with the total medical picture. He noted that the Veteran was able to shower, dress, and drive, and that he cared for his 2 year old daughter. The examiner noted that the Veteran had some difficulty with reach but that occasionally, he could lift 20 pounds and could frequently lift 10 pounds. Moreover, the examiner found that the Veteran could stand or walk for 2 hours out of an 8 hour work day and could sit for 6 out of 8 hours. In addition, the Social Security psychiatric evaluation revealed that he maintained relations with his family and friends, shopped, went out to eat, attended church, and went hunting. The psychiatric examiner noted that the Veteran was fully oriented with adequate attention and concentration and that his psychiatric limitations were no more than mild. In light of the foregoing, the Social Security Administration denied the Veteran's claim of entitlement to Supplemental Security Income. The Social Security Administration found that his primary diagnosis of osteoarthritis and his secondary diagnosis of an anxiety-related disorder did not render the Veteran disabled. While such a finding is not dispositive with respect to the Veteran's claim for a TDIU, it is relevant evidence which needs to be weighed and evaluated. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000). The reports from the Social Security Administration are generally consistent with those from the VA as well as the other sources noted above, such as the psychiatric assessments in December 2009 by R. S. K., III, Psy.D. and in May 2013 by VA. The report of the Veteran's May 2013 VA psychiatric examination shows that his PTSD makes it difficult for him to establish and maintain effective work and social relationships. However, Dr. K. and VA concur that his GAF score is 60. GAF is the score on the veteran's Global Assessment of Functioning (GAF) Scale. That scale is found in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV) and reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996). The nomenclature in DSM IV has been specifically adopted by VA in the evaluation of mental disorders. 38 C.F.R. § 4.125, 4.130 (2013). A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. Id.; see Carpenter v. Brown, 240, 242 (1995). In May 2013, the Veteran also underwent a VA audiologic examination, a joint examination, a foot examination, a right shoulder examination, and a peripheral nerve examination to determine the impact of each of his service-connected disabilities on his ability to work. The audiologic examiner found that the Veteran's bilateral hearing loss was mild to moderate and that it could present difficulty in work situations where the Veteran had to communicate with the public in a noisy environment or when large portions of his time were spent on the radio, telephone, or intercom. However, the VA examiner noted that completely deaf people work successfully in a variety of work environments and that a hearing loss disability is rarely disabling to the point of being unable to work in any capacity. The VA audiologic examiner further noted that the Veteran's service-connected tinnitus could present a challenge in settings requiring intense conversation but that it should not create a major functional impairment in a physical or sedentary occupational environment. During the May 2013 VA joint examination, the Veteran reported that he had stopped working in 2006 or 2007, due to a bad attitude. The examiner noted that the Veteran was independent in his activities of daily living and that he had had no physician-prescribed bedrest or periods of incapacity during the previous 12 months, due to his service-connected right shoulder strain, pes planus, or right carpal tunnel syndrome. Indeed, the VA examiner found that those disorders should not be an impediment in his ability to engage in light duty or sedentary employment should the Veteran choose to do so. During the May 2013 VA foot examination, it was noted that the Veteran had a diagnosis of pes planus but that imaging studies were negative for any abnormalities. The Veteran reportedly required no assistive devices for ambulation, and the VA examiner concluded that the Veteran's service-connected foot disorder did not impact his ability to work. During the May 2013 VA shoulder examination, the VA examiner noted that the Veteran had a diagnosis of right shoulder strain and that he had undergone surgery on two occasions: in December 2006 to correct recurrent right shoulder dislocation and in August 2007 to effect rotator cuff repair and debridement and to correct recurrent dislocation. The Veteran reported continued anterior right shoulder pain with certain movements, but it was noted that he had not dislocated the shoulder for the last few years. The Veteran was able to raise his right arm above shoulder level with pain occurring at shoulder level. His right shoulder strength was normal, but repetitive testing resulted in continued pain and less movement than normal. He was unable to perform tests associated with his rotator cuff impairment. Despite those manifestations, the examiner opined that the Veteran's right shoulder disability would not impact his ability to work. During his May 2013 VA neurologic examination, it was noted that the Veteran had right carpal tunnel syndrome, manifested by mild numbness and paresthesias or dysesthesias. However, his right wrist strength, reflexes, and sensation were all found to be normal. Following the examination, the examiner opined that the Veteran's right carpal tunnel syndrome would not impact his ability to work. In May 2013, the Veteran underwent a VA general medical examination, during which the examiner determined that individually or collectively, the Veteran's service-connected disorders did not preclude his ability to obtain and maintain all forms of substantially gainful employment. Rather, the examiner concluded that the Veteran was capable of light duty or sedentary employment. That finding was consistent with the January 2010 decision by the Social Security Administration to deny the Veteran's claim for Supplemental Security Income. In light of the foregoing discussion, the Board finds that the Veteran's service-connected disorders do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. The only evidence to the contrary is the testimony from the Veteran and his mother at his July 2012 hearing. As lay persons, they are competent to give testimony about the symptoms they observe, such as pain, limitation of motion, or a lack of concentration. However, the preponderance of the objective evidence is against a finding that the Veteran's service-connected disabilities, by themselves, prevent his from working in sedentary occupations or those requiring light duty. As such, he does not meet the criteria for a TDIU. Accordingly, the appeal is denied. In arriving at this decision, the Board has considered the representative's July 2012 hearing request for extraschedular consideration. A total disability rating may be assigned on an extra-schedular basis for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Such cases are referred to the Director of the VA Compensation and Pension service with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In this case, however, the Veteran has met the percentage standards set forth in section 4.16(a). Moreover, the Board has considered the Veteran's employment history, educational and vocational attainment, and all evidence in the claims file having a bearing on the issue. Indeed, the Veteran's representative has not identified any reason which would warrant extraschedular consideration. Accordingly, referral to the Director of the VA Compensation and Pension Service for extraschedular consideration is not warranted. Finally, the Board has considered the doctrine of reasonable doubt. That doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013). ORDER Entitlement to a TDIU is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs