Citation Nr: 1337618 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 06-11 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 9, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. He also served in the United States Naval Reserves. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Boston, Massachusetts. In that decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned a 10 percent rating, effective November 26, 2003. In January 2006, the RO increased the rating for PTSD to 30 percent, effective February 5, 2003. In February 2008, the Board remanded the appeal in order to accommodate the Veteran's request for a travel board hearing. In October 2009, the Veteran testified at a hearing held at the RO before another Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In November 2012, the Veteran was notified that this person was no longer employed by the Board and was afforded the opportunity for a new hearing. The Veteran declined the opportunity and asked that his appeal be considered based on the record. In November 2011, the Board remanded the appeal. At that time, the Board determined that the claim for a higher rating for PTSD on appeal did not include an implied claim for a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board determined that the RO had bifurcated the issue and already adjudicated it when entitlement to a TDIU was denied in an August 2006 rating decision. The Board thus determined that consideration of a TDIU under Rice was not warranted. In a July 2012 rating decision, the RO increased the rating for PTSD to 50 percent from February 5, 2003, and 100 percent from December 9, 2011. In January 2013, the Board reiterated its November 2011 findings that consideration of a TDIU under Rice was not necessary. The Board adjudicated the PTSD claim, and awarded an initial increased rating of 70 percent from February 5, 2003 to December 9, 2011. This decision was implemented by the RO in a March 2013 rating decision. The Veteran appealed the Board's January 2013 decision to the United States Court of Appeals for Veterans Claims (Court) to the extent that the Board declined to consider entitlement to a TDIU pursuant to Rice. The Veteran did not appeal the Board's assignment of a 70 percent rating for PTSD. In a July 2013 Order, the Court vacated the January 2013 Board decision to the extent that the Board failed to adjudicate a reasonably raised claim for a TDIU. The Court found that the record contained evidence, received by VA after the final August 2006 denial of TDIU, demonstrating that the Veteran may have been unable to work due to his PTSD. Given this evidence, the fact that the Veteran's claim for an initial increased rating for PTSD was pending before the Board, and the fact that the issue of entitlement to TDIU was part of that claim, the Court determined that the Board should have considered the issue of entitlement to TDIU. The Court remanded the matter back to the Board for development consistent with the parties' Joint Motion for Remand and to Stay Proceedings (Joint Motion). The Board notes that the RO's award of a 100 percent schedular disability rating for PTSD effectively moots a claim for entitlement to a TDIU from the effective date of the 100 percent rating, which in this case, is December 9, 2011. Locklear v. Shinseki, 24 Vet. App. 311, 314, n. 2 (2011) (citing Herlehy v. Principi, 15 Vet. App. 33, 35 (2001)). The claim has been captioned accordingly on the title page. In this vein, the Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability evaluation is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU even where a 100 percent schedular evaluation is already in effect. Here however, as to the period from December 9, 2011, the Veteran has two other service-connected disabilities, neither of which are rated at 60 percent. The disabilities include bilateral hearing loss disability, rated as 20 percent disabling, and tinnitus, rated as 10 percent disabling. As such, the concerns addressed in Bradley are not present in the current case, and the Board need not address whether a TDIU is warranted from December 9, 2011. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. Pertinent records not already associated in hard copy form include CAPRI records, a July 2012 audiological examination, rating decisions of March 2013 and August 2013, and a recent brief from the Veteran's representative. FINDINGS OF FACT 1. Prior to December 9, 2011, the Veteran was service connected for PTSD, rated as 70 percent disabling since February 5, 2003, bilateral hearing loss disability, rated as 20 percent disabling since November 26, 2003, and tinnitus, rated as 10 percent disabling since November 26, 2003. His combined disability rating was 70 percent from February 5, 2003, and 80 percent from November 26, 2003. 2. Prior to December 9, 2011, the Veteran's service connected disabilities rendered him unable to engage in substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to December 9, 2011 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2012). In the decision below, the Board has granted the Veteran's claim for a TDIU. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. 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 his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). In this case, the Veteran has been awarded service connection for PTSD, rated as 70 percent disabling since February 5, 2003, bilateral hearing loss disability, rated as 20 percent disabling since November 26, 2003, and tinnitus, rated as 10 percent disabling since November 26, 2003. His combined disability rating has been 70 percent since February 5, 2003, and 80 percent since November 26, 2003. As noted above, the Veteran's claim for a TDIU rating stems from his February 5, 2003 PTSD claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). He is thus eligible for consideration of a TDIU on a schedular basis for the entire course of the appeal. VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that 'unemployability' is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. The Veteran in this case has a high school education. In various statements, including those dated from February 2003, February 2005, March 2005, and January 2007, the Veteran has contended he is unable to work because of his PTSD symptoms. In the July 2013 Joint Motion, the Court discussed several pieces of evidence that support the Veteran's unemployability, including evidence from January 22, 2007, March 27, 2007, October 20, 2009, December 2011, and records from the Social Security Administration (SSA). This evidence will be addressed below, in conjunction with the remainder of the record. In a January 2003 statement from the Worcester Vet Center, it was noted that the Veteran had been having problems at work for the past 4 years. He had difficulty keeping up with the high levels of stress in a salesman position. He had problems related to both co-workers and management. Approximately 14 months prior, he had been laid off, due to frequent absences and problems producing on the job. He had remained unemployed. In March 2003, the Veteran's wife submitted a letter. She described moodiness, depression, and withdrawal. He did not trust anyone and looked at others in a negative light. She reported that he had brought that negativity to his job as a salesman. He had been unable to maintain an effective working relationship with his co-workers and boss. This eventually cost him his job because he was too confrontational and could not relate to them. He lost his job in 2001 and had not worked since. On VA examination in January 2004, the examiner noted the Veteran had worked as a salesman and had difficulty with his supervisors and authority figures. He would engage in confrontations. He had stopped working about 2 years prior. The examiner determined that the Veteran's psychiatric symptoms had affected his work by way of confrontational behavior, disregard for authority, and mistrust. On VA examination in January 2006, the Veteran reported that he was unable to function at work because of his psychiatric difficulties. The examiner noted that he had been fired from his job and was hospitalized for his PTSD shortly thereafter. He had not been able to go back to work and was supporting himself with SSA and Veteran's benefits. In a January 22, 2007 statement in support of claim, the Veteran contended that he had not worked since 2000 because he had a lot of trouble getting along with his boss and co-workers. The Veteran stated that for 2 years prior to being let go, his productivity had decreased and he had problems motivating himself to accomplish tasks. The Veteran stated that he suffered from depression and fatigue. On VA examination on March 27, 2007, the examiner noted that the Veteran had been unemployed since 2000 in part due to PTSD symptoms. During his October 20, 2009 BVA hearing, the Veteran testified that he was asked to resign from his sales job due to his inability to get along with his manager. Further, the Veteran testified that his PTSD had really affected his job performance and created serious limitations in obtaining and maintaining employment. On VA examination in December 2011, the Veteran reported that he worked from 1972 to 2001 in metal sales, but was fired for panic attacks and an inability to work. He was supposed to meet with people and had gotten to the point where he could not endure it anymore. The Veteran reported that he had lost jobs because of the PTSD, and that it had taken a toll on his family. The examiner determined that the Veteran's symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The examiner found that the Veteran experienced difficulty in adapting to stressful circumstances, including work or a worklike setting, and had difficulty in establishing and maintaining effective work and social relationships. On VA audiological examination in May 2012, the examiner determined that the Veteran's hearing loss and tinnitus impacted ordinary conditions of daily life, including his ability to work. As summarized by the Court, records from the SSA submitted by the Veteran in February 2012, showed that the Veteran had not engaged in any substantially gainful employment since his disability onset date. The Veteran's impairments were noted to be depression with underlying PTSD, and it was noted that the Veteran was unable to perform his past relevant work. Additionally, the Board's own review of the SSA determination shows that the SSA found there were no jobs existing in significant numbers that the Veteran could perform. A VA examination has not been conducted for the combined effect of the Veteran's service-connected disabilities on his employability. In this vein, the Board calls attention to the recent decision of the Federal Circuit in Geib v. Shinseki, No.2012-7164, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013). In Geib, the Federal Circuit held that, "VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." Slip op. at 8. "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Id. at 7. Accordingly, the ultimate issue of whether a TDIU rating should be awarded is not a medical issue, but is a determination for the adjudicator. See also Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator.), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The Board here finds that, collectively, the evidence of record supports a finding that the Veteran's service connected disabilities have rendered him unable to engage in substantially gainful employment prior to December 9, 2011. The Board considered the statements of the Veteran and his wife, as well as the opinions of the VA examiners and the SSA. The Veteran and his wife are competent to testify as to the limitations caused by the Veteran's service connected disabilities and the Board finds their statements credible. As described above, the January 2006 VA examiner found that the Veteran had been unable to return to his job due to psychiatric symptoms. The March 2007 VA examiner determined that the Veteran had been unemployed since 2000 in part due to PTSD symptoms. The SSA determined that there were no jobs existing in significant numbers that the Veteran could perform. Given the Veteran's relatively limited educational background and his occupational history as a steel salesman, the Board finds that the limitations described by the Veteran, his wife, VA providers, and the SSA due to his psychiatric service connected disability preclude him from realistically obtaining and maintaining any form of gainful employment. Significantly, there is no medical opinion explicitly to the contrary. In light of the evidence above, and after resolving any doubt in the Veteran's favor, the Board is satisfied that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. As such, the criteria for entitlement to TDIU prior to December 9, 2011 have been met. ORDER TDIU prior to December 9, 2011 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs