Citation Nr: 1334934 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-16 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2003 to April 2006. He is the recipient of the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial 30 percent disability rating, effective March 26, 2009. The Veteran appealed with respect to the propriety of the initially assigned rating. Subsequently, in a March 2011 rating decision, the Veteran's disability rating was increased to 70 percent, effective January 24, 2011. In a March 2012 decision, the Board granted the Veteran a higher initial rating of 50 percent, but no higher, prior to January 24, 2011, which was effectuated in an April 2012 rating decision, and denied an initial rating in excess of 70 percent as of January 24, 2011. The Board also noted that the issue of entitlement to a TDIU was not certified for appeal, but took jurisdiction of it pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). The Board remanded such issue for additional development and adjudication. In a February 2013 supplemental statement of the case, the agency of original jurisdiction (AOJ) denied entitlement to a TDIU and the issue now returns to the Board for further appellate review. In April 2010, the Veteran filed his VA Form 9, requesting a Board video-conference hearing. He was notified in June 2011 of his hearing date, to be held the following month, in July 2011. However, the Veteran failed to appear for his hearing, and there is no correspondence of record from him requesting to reschedule the hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals additional VA treatment records, which have been considered by the AOJ in the February 2013 supplemental statement of the case. FINDINGS OF FACT 1. The Veteran, without good cause, failed to report for a scheduled VA examination in the form of a Social and Industrial (S & I) Survey deemed necessary in order to determine whether his service-connected disabilities render him unemployable. 2. The Veteran's service-connected disabilities of tinnitus, traumatic brain injury (claimed with headaches), and posttraumatic stress disorder do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.655, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an April 2012 letter detailed the elements of a TDIU claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such evidence and information. The April 2012 letter also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Attached to the April 2012 letter was VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, which the Veteran was instructed to submit if he felt he met the requirements for a TDIU. While the April 2012 letter was sent subsequent to the initial adjudication of the Veteran's underlying increased rating for his PTSD in the July 2009 rating decision, the Veteran's TDIU claim was adjudicated in the February 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006) (VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter); Prickett v. Nicholson, 20 Vet. App. 370 (2006) (the issuance of a statement of the case could constitute a readjudication of the Veteran's claim). Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records and post-service VA treatment records have been obtained and considered. He has not identified any additional, relevant records that have not been requested or obtained. In this regard, the Board notes that, pursuant to the Board's March 2012 remand, additional VA treatment records dated through July 2012 were associated with the Veteran's Virtual VA file and were considered by the AOJ in the February 2013 supplemental statement of the case. In the Board's March 2012 remand, it was determined that an examination in the form of a Social and Industrial (S & I) Survey was necessary to determine whether the Veteran's service-connected disabilities render him unemployable. Documentation in the claims file shows that a VA social worker made several attempts to contact the Veteran to schedule his S & I Survey, and that the Veteran eventually made contact with the office in August 2012, scheduling an appointment for the next day. However, on the day of the appointment, his mother cancelled it, reporting that the Veteran did not have transportation. As subsequent attempts to contact the Veteran to reschedule his appointment were unsuccessful, the Veteran's mother was contacted and she stated the Veteran could not be contacted by telephone. A September 2012 document from the Oklahoma VA Medical Center reflects that the Veteran failed to report for his scheduled Social and Industrial Survey. In the February 2013 supplemental statement of the case, the Veteran was informed that his claim for TDIU was denied because he failed to attend the examination that was scheduled in order to evaluate such claim. Additionally, the other evidence of record, to include VA treatment records, failed to show evidence that would support the grant of such benefit. To date, the Veteran has not contacted the RO to reschedule his S & I Survey, nor has he submitted a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Based on the above development, the Board finds that the AOJ has substantially complied with the March 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent schedular evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of this analysis, disabilities resulting from common etiology or a single accident will be considered a single disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Veteran has three service-connected disabilities: tinnitus, rated as 10 percent disabling, traumatic brain injury (claimed with headaches), rated as 10 percent disabling, and PTSD, rated as 50 percent disabling prior to January 24, 2011, and 70 percent disabling thereafter. As the Veteran's service-connected disabilities originate from his combat experience, they may be considered a single disability, such that he satisfies the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU at all times relevant to this appeal. The type of claim that is at issue, i.e., a TDIU, qualifies as a claim for increased disability compensation. The Court determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). 38 C.F.R. § 3.655 provides that, when an evaluation cannot be determined without a current VA examination, and the claimant, without good cause, fails to report for such examination, when it pertains to a claim for increase, the claim shall be denied. In the instant case, while the Veteran had actual knowledge that a S & I Survey was necessary to decide his TDIU claim and would likely have yielded information material to substantiating such claim, he failed to submit to an examination without good cause. However, out of fairness to the Veteran as he attended numerous VA examinations in connection with his underlying claim for an increased rating for his PTSD, the Board will adjudicate his claim on the evidence of record. Here, the record reflects that, during a June 2009 VA examination, the Veteran reported that he had lost two jobs since returning from Iraq, due to anger and severe anxiety attacks. The Veteran was currently working as a waiter, and he said his relationship with his supervisor and co-workers was good and that he had not lost any time from work. The examiner indicated that the Veteran's chronic headaches and tinnitus impact his workplace/social interactions and noted that the Veteran "has chronic headaches, shortened attention span, and has had problems with irritability which cost him a job last year." The examiner found that the Veteran's psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. The Veteran was evaluated as having a Global Assessment of Functioning (GAF) score of 55, consistent with moderate impairment in social and occupational functioning. See the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 46-47 (4th ed. 1994). During a June 2009 VA audiological examination, the Veteran reported that he does not experience any functional impairment from his tinnitus, and the examiner likewise found that there was no occupational impact from such. Also in June 2009, the Veteran underwent a VA examination to assess his TBI. He was diagnosed with post concussion syndrome and migraine headaches as a result of his TBI, which the examiner found had a "moderate" impact on his usual occupation. A December 2009 VA treatment note, which denotes that the Veteran is "semi-skilled," indicates that his usual employment pattern over the past three years was full-time, including the past month. The Veteran reported that, in the past 30 days and over his lifetime, he has had significant periods of having serious problems getting along with his co-workers. A March 2010 VA treatment note indicated that the Veteran recently quit his job of the past seven months working as a waiter, and that he has mainly worked general labor jobs. At a January 2011 VA examination, the Veteran stated he had only worked for two weeks over the last year, and that he had had gotten a job at a health food store because "he thought he would be able to tolerate being around people if he was working in the back." He referred to his previous job as a waiter, stating he could no longer tolerate being around other people because he feels too anxious. He reported attempting to take college courses, but that he did not attend class. He stated he planned to take classes online to avoid being around other people. The examiner noted that the Veteran's occupational functioning had worsened since his last examination, and assigned a GAF score of 50, which is commensurate with serious, but not total, social and occupational impairment. See DSM-IV 46-47. In March 2011, a VA treatment record reflects that the Veteran was currently seeking employment. A June 2011 VA treatment note shows that the Veteran worked briefly in a clothing retail store, but was not currently seeking employment. July 2011 and August 2011 VA treatment note documents that the Veteran has mostly worked general labor jobs and was currently seeking employment. It was noted that the Veteran had briefly worked at a local clothing store, but had since left such position. In a September 2011 VA psychiatric consult, the Veteran stated that he hoped to find a job as a dishwasher because "he could keep to himself and listen to music while he was working." In November, 2011, December 2011, and February 2012, it was noted that the Veteran was not working and not seeking employment. A March 2012 treatment note indicates that the Veteran had been working as a bartender but was again unemployed. It was observed that he was not pursuing at a job at the time and declined a vocational rehabilitation consultation. It was further noted that he had his GED plus one year of college (physics). After a careful review of the Veteran's claims file, the Board finds that the Veteran is not entitled to a TDIU. The above evidence shows that the Veteran has had periods of full-time employment during the appeal period, and also, that, by his own admission, he has struggled in the workplace over his "lifetime." Such does not lead to the conclusion that the Veteran's service-connected disabilities render him unemployable. Given his education and work experience, the above facts do not establish that the Veteran is incapable of performing any type of employment due to his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty finding employment is not enough to award TDIU, since a high compensation rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. In this regard, the Board notes that the Veteran currently has a 70 percent rating in light of the social and occupational impairment caused by his PTSD. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant could find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As indicated above, despite some limitations imposed by his service-connected PTSD, as well as his tinnitus and TBI, the weight of the probative evidence is against a finding that the Veteran's service-connected disabilities solely would prevent him from employment when considering his education and experience. While the Veteran has expressed difficulties maintaining employment due to his service-connected disabilities-mainly his PTSD-he has not asserted that he is actually unemployable due to such, nor has a medical expert made such a finding. Indeed, medical experts have found that the Veteran's tinnitus does not have any occupational impact, his TBI a "moderate" occupational impact, and his PTSD, as noted in the Board's March 2012 decision, a serious occupational impact, but specifically one that does not rise to the level of total social and occupational impairment. There is no medical opinion of record stating that the Veteran's service-connected disabilities render him unemployable. In sum, the evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for a TDIU rating must be denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A TDIU is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs