Citation Nr: 1337201 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-29 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jeffery J. Bunten, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2006 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to a TDIU. The Veteran testified before a Decision Review Officer at the RO in October 2009. A transcript is included in the claims file. FINDINGS OF FACT 1. The Veteran is service connected for an adjustment disorder, rated at 30 percent disabling, and residual of right cheek surgery with scar, rated at 10 percent disabling. The combined total rating is 40 percent. 2. The Veteran does not meet the schedular criteria for a TDIU. 3. The evidence of record weighs against finding that the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in February 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. Additionally, the Veteran's Social Security Administration disability records have also been obtained and added to the Veteran's claims file. The Veteran underwent VA examinations in December 2008, March 2010, and November 2012 to determine the severity of his service-connected and claimed disorders. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); 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]. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background The Veteran asserts he is unemployable due to his service-connected disabilities. In a June 2007 private treatment note, the Veteran was seen for a physical examination for wrestling. He reported he is a professional wrestler. During a March 2008 private treatment note, the Veteran's mother reported that the Veteran was recently separated from the military because he had some sort of tumor on his face on the right side. She asserted that the Veteran cannot get a job because nobody with hire him out of concern with what is wrong with his face. In an October 2007 private psychiatric evaluation, the Veteran reported ongoing difficulty with sleep. He stated he worked for a security company prior to the military. After he left the Air Force in 2007, he attempted to work for a claims processing center but was fired after one and a half month. He had difficulty with attendance because of his problems with sleep. He has not attempted to return to work since being dismissed in May 2007. Upon mental status evaluation, the Veteran complained his mood goes up and down and he is easily upset. He also reported feeling stressed. The diagnosis was cyclothymic disorder. The examiner determined that the Veteran's symptoms interfere with employment, but with proper treatment, he should be able to maintain a job. During a December 2008 VA psychiatric evaluation, the Veteran reported he is a high school graduate and had not taken any college-level courses. Since his discharge, the Veteran worked at a claims processing center doing data entry for about four months. His tenure was characterized by low motivation, poor attendance secondary to sleep problems, and frequent headaches on the job. The Veteran was given verbal and written warnings about his inability to consistently present for work resulting in the Veteran quitting. The Veteran reported he had not worked since then and that he believes that he will encounter similar problems with any figure job he secures. The examiner conducted a mental health examination. The assessment indicated that he Veteran reported difficulty sleeping, poor appetite, depressed mood, feelings of guilt, decreased interest in pleasurable activities, low energy, and poor concentration. These symptoms have interfered with his ability to maintain gainful employment and have also impacted his social functioning. The diagnosis was major depressive disorder. The assigned GAF score was 55 which the examiner noted is meant to reflect his impairment in occupational and social functioning as reflected by his lack of a job, history of inability to maintain employment since his discharge. During a December 2008 VA examination, the Veteran was evaluated for his non-service connected headaches. The examiner noted that the Veteran is unable to perform non-physical work and that his headache disorder interferes with nonphysical work at least once every week. During a March 2010 VA examination, the examiner determined that the Veteran is not impaired to the extent that he is unemployable. The Veteran's functional occupational impairment is likely to be mild to moderate in nature which is suggestive that the Veteran would be able to maintain some type of gainful employment. He did not provide any data during the examination to suggest that he is grossly unemployable at this time due to his symptoms of depression. Vocational Rehabilitation and Employment records indicate the Veteran began career training classes in September 2009. In a report dated in March 2010, the Veteran indicated that his service-connected disorders caused a small attendance problem in January and February, but he was doing better. The Veteran received a certificate of completion from the Broadcast Center in April 2010. In a November 2011 statement, the Veteran stated that he became employed in September 2011. He stated that his jaw and headache issues have not been affected since he is inside away from the cold weather so he considers this to be suitable employment. Legal Criteria and Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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. 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, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). 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. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Board notes that the Veteran is service connected for an adjustment disorder, rated at 30 percent disabling, and residual of right cheek surgery with scar, rated at 10 percent disabling. As such, his combined rating is 40 percent. Therefore, his service-connected disabilities do not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). The RO considered whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 6. Here, the Board has also considered with extraschedular evaluation is warranted at any time during the appeal, and finds that it is not. In this case, the Veteran asserts that he is unable to work because of the severity of his service-connected psychiatric disability and scar. However, having reviewed the record, the Board finds that the preponderance of the evidence weighs against finding that he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. Lay persons can attest to factual matters of which they had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). Here, the Veteran described his limitations caused by his service-connected disabilities, and the Board acknowledges that his statement in that regard is competent and of some probative value. However, the Board also notes that the complexity of his medical history and variety of health problems including non-service connected headaches create some limitation as to his ability to distinguish to what degree those limitations are a result of his service-connected disabilities impacts his ability to work. In this case, the Board ultimately places more weight on the March 2010 VA examination opinion regarding whether the Veteran is unemployable due solely to service-connected conditions. In reaching this conclusion, the Board has considered the opinions of the October 2007 private examiner and December 2008 VA examiner which indicate the Veteran's psychiatric disorder interferes with employment. Both examiners stated that the Veteran's psychiatric disorder interferes with employment. However, neither the October 2007 private examiner nor December 2009 VA examiner specifically states that the Veteran is unemployable due to his service-connected disorders. In contrast, the March 2010 VA examiner reviewed the entire claims file, conducted a mental status examination, and considered his assertions before rendering an opinion that is consistent with the remainder of the evidence of record. The Board finds that the most probative medical evidence of record on the matter is against a finding that the Veteran is unemployable due to his service-connected disabilities so as to warrant entitlement to TDIU on an extraschedular basis. In summary, while the Board does not doubt that the Veteran's service-connected disabilities have some effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment at any time during the course of the appeal. Based on the evidence in the claims file, the Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 40 percent rating which is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: '[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.' See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to total disability based on individual unemployability (TDIU) due to service connected disabilities is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs