Citation Nr: 1334725 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-30 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In March 2009, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In a March 2012 decision, the Board found the Veteran's TDIU claim was inferred on appeal as a result of a May 2011 statement in which the Veteran asserted that his service-connected posttraumatic stress disorder (PTSD) affected his employability. The Board remanded the case to the RO via the Appeals Management Center (AMC) for additional development, including sending proper notice to the Veteran and providing any appropriate VA examinations to determine whether the Veteran's service-connected disabilities prevent him from being employed. In this regard, the Veteran was sent proper notice in August 2012, underwent several VA examinations in February 2013, and the claim was subsequently readjudicated in a June 2013 Supplemental Statement of the Case (SSOC). Therefore, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD and diabetes, as well as entitlement to service connection for an eye disorder, as secondary to service-connected diabetes, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA must inform the claimant of any information and 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present appeal, the VCAA duty to notify was satisfied by an August 2012 letter that informed the Veteran of the evidence required to substantiate a TDIU claim, his and VA's respective duties for obtaining evidence, and the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records; statements in support of the claim by the Veteran, his representative, and his wife; VA treatment records; private medical records; and several VA examinations, to include a series of examinations performed in February 2013 that focused on the Veteran's employability. The examinations were adequate because the examiners reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board notes that in the Informal Hearing Presentation (IHP), the representative submitted a document to show that the Veteran has received Social Security disability benefits since February 2011. The Veteran waived review of the evidence by the AOJ, and therefore the Board will consider it in the decision below. See 38 C.F.R. § 20.1304. The newly submitted evidence consists of a one-page document entitled "Your Monthly Benefit" with the Veteran's name hand-written across the top of the page. The document indicates that the Veteran's benefits began in February 2011. However, the benefits are identified as monthly retirement benefits and not disability benefits. The Board notes that the Veteran was born in 1947 and was therefore sixty-three years old in February 2011. Moreover, VA requested the Veteran's Social Security Administration (SSA) records, but received a response from SSA in January 2013 indicating that SSA could not send the medical records requested as such records did not exist and further efforts to obtain them would be futile. As a result, the Board finds that VA's duty to assist with regard to attempting to obtain the SSA records has been satisfied. The Veteran testified at a March 2009 Board hearing. With respect to that hearing, the United States Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above 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. Here, the VLJ fully explained the issue on appeal, which was entitlement to a disability evaluation higher than 50 percent for service-connected posttraumatic stress disorder. In addition, the Veteran was assisted at the hearing by an accredited representative, and the VLJ and the representative asked questions pertaining to the criteria necessary for establishing the Veteran's claim, including questions regarding specific evidence that may help substantiate his claim. The VLJ also asked questions regarding any occupational impairment resulting from the Veteran's PTSD symptomatology. Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. In conclusion, the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's 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). Analysis TDIU may be assigned 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. 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. § 4.1, 4.15 (2013); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). As an initial matter, the Veteran contends that he is unable to secure employment due to his service-connected PTSD, which is currently evaluated as 70 percent disabling from September 22, 2006. He is also service-connected for diabetes mellitus, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and hearing loss, evaluated as zero percent disabling. His combined disability evaluation is 80 percent from November 20, 2009 (prior to the date of the TDIU claim), which is the entire period under consideration for a TDIU. Thus, the Veteran meets the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU, and entitlement to TDIU is considered based on the combined rating percentages met under 38 C.F.R. § 4.16(a). Turning to the evidentiary record, in a May 2011 statement, the Veteran indicated that he had taken an early retirement and was unable to obtain or maintain substantially gainful employment due to anxiety and other symptomatology associated with his PTSD. Subsequently, in the September 2013 IHP, the representative referenced the Veteran's November 2010 PTSD examination, which showed that the Veteran reported having mistakes at work and poor concentration, as well as the report from the Veteran's counseling therapist which indicated that the Veteran "suffers from alienation and mistrust of his coworkers." The IHP also identified the Veteran's limited social interactions with others and emphasized the results of the February 2013 PTSD examination that showed that any employer "would have to accommodate [the Veteran's] physical limitations and provide low stress environment to avoid exacerbating his PTSD and related depressive symptoms." In his September 2012 VA Form 21-8940, the Veteran indicated that he last worked full-time in January 2011. He also indicated he had a college education. The Veteran also discussed his employment history in detail during the November 2010 VA examination. The Veteran reported that he was currently employed as a revenue clerk at Bay Pines VA, where he has worked in various positions for the previous eighteen years. Prior to his employment at Bay Pines, the Veteran worked for Dunn and Bradstreet for approximately ten years. The Veteran was afforded several other VA examinations in February 2013 to determine whether his service-connected disabilities prevent him from being employed. The Board notes that one of the examinations provided to the Veteran was an eye examination. As indicated in the Introduction, the Board has referred the issue of service connection for an eye disorder as secondary to service-connected diabetes mellitus to the AOJ. However, the Board notes that in the examination report, the examiner specifically opines that the Veteran's cataracts "minimally impact his central visual acuity and do not render him unable to secure or follow a substantially gainful occupation during the period of the pending claim." Moreover, the Veteran has not indicated that his erectile dysfunction, which has also been referred to the AOJ, prevents him from being employed. Therefore, the Board will now proceed with the adjudication of the TDIU claim based on the Veteran's current service-connected disabilities, beginning with a discussion of each of the most recent VA examinations from February 2013. First, a general medical examination indicated a normal physical exam, except as noted in the examination reports discussed below, and found that there were no additional conditions that impact the Veteran's ability to work. In a diabetes mellitus (DM) examination, the examiner noted that the Veteran did not require regulation of activities as part of medical management for DM. The examiner noted the Veteran had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions in the previous twelve months and that there were no known recognized complications of DM. The examiner noted that the Veteran reported taking care of his wife and home and taking care of all the housework. The examiner concluded that the Veteran's DM did not impact his ability to work. Next, in a hearing loss and tinnitus examination, the Veteran reported difficulty hearing in background noise and needing to put the television volume up to a high level to hear. Testing revealed normal hearing for VA compensation purposes and excellent speech recognition ability. The Veteran also described constant tinnitus with ringing in his ears that has been present since service. The examiner concluded that neither the hearing loss or tinnitus impact the Veteran's physical and sedentary employment. In the PTSD examination, the examiner acknowledged that the Veteran's PTSD and related symptoms require "ongoing mental health follow-up." The examiner indicated that the Veteran experienced symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and suicidal ideation. The examiner also identified symptoms associated with depression and anxiety. However, the examiner indicated the Veteran's thought content and progression were unimpaired, and that his attention and concentration were within normal limits. In addition, the examiner noted the Veteran's abstract reasoning was within normal limits "and a function of intelligence not reduced by mood." The Veteran's insight and judgment were fair. Speech rate and tone was unremarkable, and there was no identified difficulty in understanding complex commands. The examiner noted the Veteran did not experience hallucinations or delusions, but there was impaired impulse control. In describing his social functioning, the examiner indicated that the Veteran's relationships were limited, noting that the Veteran reported talking with his children one time monthly and having no friends with whom he socializes besides his wife. However, the examiner also reported that the Veteran was looking forward to resuming an active lifestyle with his wife once she overcame her health issues. The examiner also indicated that the Veteran reported trying to maintain a structure in his daily routine, including getting out of the house for several hours a day. In discussing the frequency of symptoms and current stressors, the examiner indicated that the Veteran constantly experienced symptoms and he was stressed by his wife's health issues. The examiner noted the Veteran had difficulty adapting to stressful circumstances, including in work or work like settings. The examiner described the Veteran's symptoms as moderate. Ultimately, the examiner found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner indicated that the Veteran's was "not considered unemployable based on mental health standards alone." The examiner did acknowledge, however, that "any occupational placement would have to accommodate [the Veteran's] physical limitations and provide a low stress environment to avoid exacerbating his PTSD and related depressive symptoms." Therefore, the examiner's conclusions tend to show that the Veteran's PTSD symptoms indeed impair his social and occupational functioning, however, such impairments have not rendered the Veteran unemployable. In sum, the February 2013 examinations provide evidence that the Veteran's service-connected diabetes mellitus, hearing loss, tinnitus, and PTSD have not rendered him incapable of securing or maintaining gainful employment. The Board finds the opinions cited above to be competent and probative evidence because the examiners offered conclusions with supportive rationales, referencing objective evidence as well as the Veteran's statements and other lay statements of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Evidence of record also includes a September 2012 evaluation from the Veteran's clinical therapist that addressed his PTSD. The clinical therapist noted that the Veteran's Global Assessment of Functioning was "characterized by serious and clinically distressing impairment in Social, Occupational and Interpersonal functioning." The Board acknowledges that the Veteran's PTSD symptoms are indeed serious, as exhibited by his current rating of 70 percent disabling. However, the clinical therapist's evaluation does not state that these symptoms prevent the Veteran from securing or maintaining gainful employment. Similarly, the Veteran's wife, in an April 2012 statement, discussed the Veteran's PTSD symptoms, such as increased anger, insomnia, and decreased motivation. She opined that the changes in the Veteran's symptomatology could be due to the fact they both retired and have been spending more time together. Thus, while the Veteran's wife provides evidence of the severity of the Veteran's PTSD symptoms, her statements do not suggest that his symptoms have prevented him from being employed. In addition, the Veteran's May 2011 statement contains the specific examples he believes demonstrates unemployability. The Veteran described experiencing dizziness and cold sweats when trying to interview for a job. He stated he was anxious when working and noted, "cannot see myself working again." Although the Veteran was employed at the time of the November 2010 PTSD examination, the representative specifically referenced the examination in the September 2013 IHP, asserting that the examination report contained statements regarding the Veteran's social and occupational functioning in support of his current TDIU claim. While it is true that the Veteran discussed his social and occupational impairment at the November 2010 examination, to include his reports of difficulty concentrating and focusing at work and limited relationships with friends and family, the Veteran himself did not indicate that his PTSD symptoms prevented him from working. Moreover, the examiner concluded that there was no total occupational and social impairment due to the Veteran's PTSD. Therefore, the November 2010 examination does not show that the Veteran was incapable of securing or maintaining gainful employment at that time. Although the Veteran maintains that his service-connected disabilities render him unemployable, the preponderance of the evidence is against such a conclusion. There are no medical opinions of record indicating that the Veteran is totally disabled or unemployable due to his service-connected disabilities or that he is incapable of doing any type of productive work. Rather, medical professionals have consistently concluded that although the Veteran may be limited in his abilities by his service-connected disabilities, they are not of sufficient severity to result in unemployment. The Veteran's limitations from the service-connected disabilities are recognized by the combined rating of 80 percent. However, the evidence does not show that the Veteran's service-connected disabilities have rendered him unemployable. Given the Veteran's occupational history, his service-connected disabilities do not prevent him from engaging in sedentary work or some other type of substantially gainful employment. Indeed, the Veteran's primary contention is that he is unable to work due to his PTSD. However, a medical professional indicated that the Veteran could be employed as long as he worked in a low stress environment and that he was not precluded from employment based on his mental health issues. Finally, even considering the effect the combination of his disabilities would have on employability, the Board concludes a total rating is not warranted. That is because the medical opinions reflect no limits from a physical standpoint and the only limitation from a mental perspective is that he would have difficulty in a stressful environment. Such limitations simply do not amount to an inability to work, especially in light of his occupational history, which demonstrates significant experience at a "desk" job. There is simply no evidence of unusual or exceptional circumstances to warrant a total disability rating based on the Veteran's service-connected disabiities alone. See Van Hoose, 4 Vet. App. at 363. The record does not reflect any periods of hospitalizations for the Veteran's service connected disabilities, and the preponderance of the evidence shows that the Veteran is not unable to engage in gainful employment due to his service-connected disabilities. Accordingly, the Board finds that the Veteran's service-connected disabilities alone do not result in marked interference with employment. Although the Veteran has not held employment since 2011, the preponderance of the evidence is against the finding that his service-connected disabilities have resulted in his unemployability. In the absence of any evidence of unusual or exceptional circumstances beyond what is contemplated by the assigned disability evaluation of 80 percent, the preponderance of the evidence is against the Veteran's claim that he is precluded from securing substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. Thus, a TDIU rating is not warranted in this case. ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs