Citation Nr: 1337152 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 05-02 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities ("TDIU") prior to November 28, 2011, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Columbia, South Carolina, which, in pertinent part, denied the Veteran's claim of entitlement to a TDIU. In March 2006, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge at the Columbia RO. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In November 2007, the Board remanded the case for additional development. Thereafter, in a November 2009 Supplemental Statement of the Case ("SSOC"), the Appeals Management Center ("AMC") continued the denial of the Veteran's original claim of entitlement to a TDIU. In March 2010, the Board again remanded the claim for further development. Thereafter, a June 2011 SSOC again denied the claim for a TDIU. Following a third Board remand in November 2011, a September 2012 rating decision granted the Veteran's TDIU claim, with an effective date of November 28, 2011; however, as the award was not effective from the date of the Veteran's claim, the issue of entitlement to a TDIU prior to November 28, 2011 remains on appeal to the Board. In April 2013 the Board remanded the claim so that the case could be referred to the Director of Compensation and Pension for an opinion as to whether the Veteran was entitled to a TDIU prior to November 28, 2011 on an extraschedular basis. Thereafter, the RO granted an increased rating of 70 percent for PTSD, effective September 9, 2011; but continued the denial of entitlement to a TDIU prior to November 28, 2011. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Effective January 14, 2004, the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met, effective January 14, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). 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). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A letter dated in November 2007 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The claim was subsequently readjudicated in supplemental statements of the case dated from November 2009 to August 2013, thereby curing any timing defects in the notice. Regarding the duty to assist, the RO has obtained the Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and private treatment records. The RO also has provided him with VA examinations addressing all the relevant criteria. The Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in March 2006, in which he presented oral argument regarding his TDIU claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the 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, both the VLJ and the Veteran's representative acknowledged that the TDIU claim was on appeal and the Veteran provided testimony regarding his inability to work due to his service-connected disabilities. The VLJ asked the Veteran questions regarding his work history and his employment background, directed at identifying the criteria for a TDIU. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and present symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Also, 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. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. TDIU A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). In general, applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(a) (2013). An effective date for such an increased rating or TDIU claim may date back as much as one year before the date of the formal application for increase if it is "factually ascertainable that an increase in disability had occurred" within that timeframe. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). Stated in other terms, the earliest date possible for a TDIU rating is one year prior to receipt of the claim. VA law provides that a total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a) (2013). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. In such cases, consideration is given to the veteran's background, including his employment and educational history. 38 C.F.R. §4.16(b) (2013). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance, but rather, must refer the case for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Board remanded this case in April 2013 so that the case could be referred to the Director of VA's Compensation and Pension Service for extraschedular consideration. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered in determining whether unemployability exists are the veteran's education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran's age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). For a veteran to prevail on a claim of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran filed his claim for TDIU on January 14, 2004. A TDIU was granted effective November 28, 2011. The Veteran contends, however, that he became unemployable prior to November 28, 2011, based primarily on the severe symptomatology due to his service-connected PTSD. The Veteran's representative also submitted argument in September 2013 that since the RO granted an increased rating of 70 percent for PTSD, effective September 9, 2011 that entitlement to a TDIU should be at least effective as of that date. However, his representative further argues that entitlement to a TDIU was factually ascertainable one year prior to September 9, 2011, and that entitlement to a TDIU on extraschedular basis should also be considered given the Veteran's limited education and occupational skills. At the time of his claim, the Veteran was not service connected for any disabilities. His original claim was denied in the July 2004 rating decision. However, in the interim, service connection has been established for several disabilities. See November 2009 and June 2013 rating decisions. The Veteran's current service-connected disabilities are: (1) posttraumatic stress disorder ("PTSD"), rated 10 percent from November 14, 2003, 50 percent since June 2, 2010, and 70 percent since September 9, 2011; (2) post-traumatic arthritis, left great toe, rated zero percent from August 17, 1969, rated 10 percent from November 14, 2003, and rated 30 percent from November 28, 2011; (3) coronary artery disease, rated 10 percent from November 14, 2003; and (4) chondromalacia patella, left knee, rated zero percent from November 14, 2003, and 10 percent from November 28, 2011. See generally 38 C.F.R. §§ 4.25 and 4.26 (the latter provides for calculating the bilateral factor). In this case, from August 1969, the Veteran's combined disability rating was 0 percent; and from November 14, 2003, the Veteran's combined disability rating was only 30 percent. Thus, he did not meet the schedular criteria for a TDIU rating. From June 2, 2010, his combined disability rating was 60 and the highest single disability rating he had was 50 percent for PTSD. Therefore, he still did not meet the schedular criteria for a TDIU rating. It was not until September 9, 2011 that his combined disability rating reached 70 percent, when his PTSD was assigned a 70 percent rating, which was implemented in a June 2013 rating decision. As noted, the RO assigned an effective date of November 9, 2011 for the assignment of a TDIU. Thus, the issue is whether the Veteran is entitled to a TDIU prior to November 9, 2011, to include on an extraschedular basis. A review of the evidence of record demonstrates that according to a September 2005 SSA disability determination, the Veteran took disability retirement from his job in the textile industry on January 1, 2003. VA treatment reports of record beginning in January 2004 show that he was being treated for severe depression and PTSD. It was noted that his symptoms increased after he lost his job and he became despondent. Treatment records since January 2004 show his Global Assessment Functioning (GAF) scores ranged from 35 to 50. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the DSM-IV, p.32)). In this case, the score of 35 indicated some impairment in reality testing or communication or major impairment in several areas, such as work, and the score of 50 suggested moderate symptoms, such as few friends, conflicts with peers or co-workers. A January 14, 2004 VA treatment record notes that the Veteran had been to the emergency room the previous week with suicidal thoughts; he was hopeless because he could not find a job. A March 2004 treatment record notes the Veteran was very depressed and in pain; he had not had a regular job since 2002 when he worked for a month doing housing renovations, but he was not physically able to do it. He complained of pain in both legs, especially the left leg. His GAF score was 50. April 2004 VA treatment records note the Veteran was unable to work and could not find employment. He was given GAF scores of 40 and 50. Treatment records dated from May 2004 to September 2004 note severe symptoms of PTSD affecting every area of life and functioning, with GAF scores ranging from 35 to 38. In June 2004, as part of his SSA examination, the Veteran noted that he stopped working after taking some time off for symptoms of depression and PTSD. The GAF score was 50-52 and it was noted that his symptoms of PTSD were moderate most of the time. His SSA disability determination in September 2005 further showed that he had a 10th grade education and had worked in manual labor his entire life, the last 23 years of employment at a single company as a repairer in a textile factory. He said he lost his job because of his temper and a disagreement with his supervisor. The SSA decision also noted that, in addition to his service-connected PTSD and coronary artery disease, the Veteran's other "severe" disabilities for SSA disability insurance purposes included angina, aseptic necrosis sesamoid fracture, depression and dysthymic disorder. However, according to his SSA disability determination, he was disabled due to a primary diagnosis of coronary artery disease and a secondary diagnosis of depression. In June 2004, the Veteran underwent a vocational rehabilitation evaluation by the state of South Carolina. It was noted that he complained of flashbacks, anger, occasional nightmares, pain in his left foot and knee, and symptoms of depression. The diagnosis was PTSD and dysthymic disorder. However, the assigned GAF score at that time was 50-52, suggestive of moderate symptomatology. In a June 2005 SSA evaluation, it was noted that emotional factors contributed to the severity of the Veteran's physical condition and during a typical workday, his mental condition was constantly severe enough to interfere with his attention and concentration. The examiner further opined that the Veteran was incapable of even a low-stress job due to his PTSD, anxiety and depression. Moreover, it was noted that he demonstrated a severely-limited ability to tolerate customary work pressures, including co-workers and supervisors. Subsequent treatment records show the Veteran continued to experience severe to moderate PTSD symptomatology, as his GAF score during a January 2006 outpatient mental health evaluation was 45, indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A July 2010 VA examination report addressing the foot and knee noted that the Veteran was not unable to sustain employment due to his foot and knee disabilities, as he could still do sedentary work. An April 2011 VA examination report also noted that the Veteran had a moderate level of impairment in employability due to his PTSD and that he was not unable to secure or follow substantially gainful employment due to his PTSD alone. The examiner indicated that the Veteran had other impairments, primarily his foot condition, which had limited his employability, but PTSD alone did not render him unable to secure or follow a substantially gainful occupation. November 28, 2011, the date of a VA TDIU examination addressing the foot, was originally assigned as the effective date for his current TDIU rating. While the November 2011 examiner addressing the Veteran's PTSD found that the Veteran was not unemployable as a result of his PTSD, the November 2011 examination addressing the foot found that the Veteran was unemployable as a result of his foot disability. As noted above, during the course of the remand, the RO granted an increased rating of 70 percent for the Veteran's PTSD, effective September 9, 2011. For the period between January 1, 2003 and September 9, 2011, the Veteran did not meet the schedular criteria under 38 C.F.R. § 4.16(a) for a TDIU rating. Nonetheless, based on the evidence of record, the Board found that referral for extraschedular consideration for entitlement to a TDIU prior to (then) November 28, 2011, was in order and in April 2013, remanded this case. The Board concluded that the evidence suggested that the Veteran's service-connected PTSD, although rated only at 10 percent from November 14, 2003 to June 1, 2010 (with a combined 20 percent rating for all service-connected disabilities), and 50 percent from June 2, 2010 to (then) November 27, 2011 (with a combined 60 percent rating for all service-connected disabilities), resulted in marked interference with his ability to secure and follow a substantially gainful occupation, particularly in light of his limited education and occupational skills. The Director of Compensation and Pension provided an opinion in July 2013 essentially finding that the Veteran was not entitled to a TDIU on an extraschedular basis prior to November 28, 2011. The Director noted much of the evidence that was cited by the Board above including the finding from SSA in September 2005 of the Veteran being disabled, but noted that the SSA decision was also based on the Veteran's nonservice-connected disabilities. The Director further noted that the Veteran had only two years of high school and had worked primarily in physical occupations since military discharge. The Veteran had stated at the Board hearing that he was fired or released from his last two jobs after getting into arguments with his supervisor and having a poor attitude. The Director also noted that VA and private treatment records showed difficulty sleeping, hypervigilance, paranoia, sleep issues, treatment with medication for PTSD and depression, and an emergency room visit in January 2004 for PTSD symptoms. A July 2004 SSA examination noted difficulty with co-workers and supervisors but PTSD symptoms were moderate most of the time. VA examinations in July 2009 and June 2010 also showed moderate PTSD and foot conditions. Examinations in July 2010 and April 2011 noted that the Veteran was not unemployable due to his foot condition or PTSD. Thus, the Director found that the evidence showed moderate impairment due to PTSD. While there was a decrease in functional abilities due to the service-connected foot and knee disabilities, the Director determined that the evidence did not show that physical or sedentary employment was precluded due to the Veteran's service-connected conditions. The Director further found that the Veteran could still perform physical work to which he was accustomed; and while there might be attendance issues and problems with interoffice relationships the Veteran's PTSD would not have precluded substantially gainful employment. In consideration of the evidence of record, the Board finds that the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful occupation prior to September 9, 2011, and as far back as the date of his TDIU claim on January 14, 2004. The Veteran's PTSD symptoms have been shown to be severe since January 14, 2004 through November 2004 with GAF scores as low as 35-45 during that time frame. There also have been findings that the Veteran's PTSD was of a more moderate level with GAF scores of 50-52, but this does not overshadow the low scores, as well. The treatment records in 2004 specifically noted that the Veteran's PTSD was severe affecting every area of his life and that he had not worked since 2002, was unable to find another job, and was unable to work. In addition the Veteran has only two years of high school education and work experience in physical occupations. While July 2010 and April 2011 VA examiners found that the Veteran was not incapable of employment as a result of his foot and PTSD disabilities, the June 2005 examination as part of the Veteran's SSA assessment determined that the Veteran was unable to work because of his PTSD symptoms. In addition to the GAF scores as low as 35 dated since 2004, and the Veteran's limited employment and educational background, the Board finds that the record shows the Veteran has been unemployable, primarily as a result of his PTSD since the date of his original claim for a TDIU on January 14, 2004, and as supported by medical evidence dated that same month. The Director's opinion noted that the VA examiners in July 2010 and April 2011 found that the Veteran was not unemployable due to his PTSD or foot condition. However, the Director did not address the findings of severe PTSD and low GAF scores for PTSD dated since January 2004, or the SSA examination finding in June 2005 noting that the Veteran was, in fact, unemployable as a result of his PTSD. While the Director acknowledged that SSA had found the Veteran disabled, he determined that this was a result of a combination of service-connected and non-service connected disabilities. However, the SSA determination showed that the primary diagnoses used to base the disability determination were coronary artery disease and depression (both of which are service-connected disabilities, his depression being reasonably considered as a symptom of PTSD). Notwithstanding the findings of PTSD in the more moderate rating in 2010 and 2011, the Board resolves all doubt in the Veteran's favor that the preponderance of the evidence shows the Veteran has had severe PTSD since 2004 and has been unemployable since that time as a result, primarily, of his PTSD. Based upon the evidence in this case, the exact onset of the Veteran's current symptoms/level of disability cannot be determined with any certainty. The earliest record in the file is a January 13, 2004 telephone report from the Veteran's wife indicating that the Veteran was crying uncontrollably. A January 14, 2004 treatment record also noted that the Veteran had been to the emergency room the previous week for suicidal thoughts, though the exact date of the emergency care was not mentioned. The Veteran further indicated on his TDIU application received on January 14, 2004 that he had not been under medical care for the past 12 months. The earliest that that it can be factually ascertained that he met the criteria for a TDIU was the date VA received his claim on January 14, 2004. For these reasons, January 14, 2004 is assigned as the effective date for entitlement to a TDIU. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU is granted, effective January 14, 2004, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs