Citation Nr: 1337647 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-23 233 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. This appeal initially came to the Board of Veterans' Appeals (Board) from a January 2009 rating decision. In May 2011, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In April 2012, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). In September 2012, the Board remanded the Veteran's claim to comply with the directives of the JMR. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran is service connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable. His combined disability rating is 60 percent. 2. The most competent, credible, and probative evidence of record demonstrates that the Veteran's service-connected disabilities, alone, are not of such nature and severity as to prevent him from securing or following any substantially gainful employment. CONCLUSION OF LAW The criteria for a total compensation rating based on individual unemployability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran filed a claim in November 2008 seeking entitlement to a total disability rating due to unemployability caused by his service-connected disabilities. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. However, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is service-connected for PTSD, rated at 50 percent; tinnitus, rated at 10 percent; and bilateral hearing loss, rated as noncompensable. The Veteran's combined disability rating is 60 percent. See 38 C.F.R. § 4.25. Because the Veteran does not have one service-connected disability rated as at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent, with one disability rated at 40 percent, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. Nevertheless, the Board must determine whether the Veteran's TDIU claim should be submitted to the Director of Compensation and Pension service for consideration of TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b). A TDIU rating may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). For a veteran to prevail on an extraschedular basis, the record must reflect some factor which takes the case outside the schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As an initial point, the Board would like to acknowledge the point of law raised by the Veteran's representative in his post-JMR brief that a grant of TDIU does not require a showing of 100 percent unemployability but rather requires an inability to undertake substantially gainful employment. The Board does not dispute this point, and has kept it in mind in the adjudication of this appeal. Thus, to the extent that the Board states in this decision that the Veteran is unemployable or not unemployable as a result of his service connected disabilities it is no more than a shorthand for holding that the Veteran's service connected disabilities either are or are not of sufficient severity to preclude him from obtaining or maintaining substantially gainful employment. The record shows that the Veteran completed four years of high school and did not receive any additional training before he stopped working. He last worked for Presto-X, a pest control company, where he worked from 1995 to 2008. See VA From 21-8940, dated November 2008. Prior to that he had worked for approximately 27 years in a feed mill until it closed. In January 2009, the Veteran underwent a VA audiology examination at which he reported difficulty hearing when there was background noise and/or crowds. On speech recognition testing, the Veteran demonstrated 96 percent in both ears. In February 2009, the Veteran was seen by the VA mental health outpatient clinic. He denied feeling hopeless about the present/future, he denied any suicidal ideation; he denied any substance abuse, and he denied experiencing a moderate to severe level of stress. A depression screen was negative. The Veteran asserted that he was retired, having quit his job in the pest control industry, as a result of his symptoms reportedly intensifying. However, the medical professional noted that there was no actual trigger identified for such a reported increase in symptomatology. The Veteran reported being isolated in the winter, but more active in summer with gardening, housework, etc. The doctor diagnosed the Veteran with a history of PTSD, chronic, and major depressive disorder, recurrent, mild to moderate. The doctor assigned a GAF of 55-60. In October 2009, the Veteran was evaluated by J.C., Ph.D., who diagnosed him with PTSD and dysthymic disorder. Dr. J.C. documented the Veteran's courageous military service, which included receipt of the Air Medal, a Vietnam Service Medal with two Bronze stars and a Combat Infantry Badge. He also noted that the Veteran's post-service employment included working at a feed mill for 27 years until it closed and, thereafter, working at a pest management company for 13 years where he worked in sales and providing services to customers. The Veteran reported that he excelled at his work at the feed mill and got along well with most other individuals, although there were several with whom he did not get along with. As to his employment at the pest management company, the Veteran reported that it got to a point where he could no longer tolerate the work, in part because it was unsafe at times, and that he quit in 2008. Dr. J.C. noted that the dominating currently expressed symptoms related to the Veteran's PTSD and his loss of past employment were his susceptibility to irritability and anger arousal. Dr. J.C. also found that the Veteran's loss of employment had resulted in a major depressive disorder, although the Veteran actually denied experiencing any depression at the time of the evaluation. Dr. J.C.'s report also reflects that the Veteran's diagnosis of major dysthymic disorder was characterized primarily by symptoms involving a susceptibility to irritability and rapid arousal of anger. Nevertheless, Dr. J.C. stated that "it appears likely that [the Veteran's] PTSD, his age, and his susceptibility to anger and irritability would interfere with [his] current ability to maintain a productive relationship with an employer," further stating that the Veteran has a "recurrent emotional disorder that is related to his current unemployable and his unemployable status is in part service-connected (i.e. PTSD symptoms)." He estimated that the Veteran's GAF was 65-75. In December 2009 the Veteran underwent a VA psychiatric examination. The examiner reviewed the claims file and met with the Veteran, diagnosing him with PTSD and major depressive disorder. The VA examiner noted that the Veteran had been unemployed since 2007 and the Veteran reported that he did not work due to PTSD and "service-related medical issues." The Veteran stated that he "wouldn't mind working but probably won't". The examiner diagnosed the Veteran with PTSD and major depressive disorder, assigning a GAF of 54. The VA examiner stated that he agreed with Dr. J.C.'s assessment that the Veteran's PTSD played a part or was a contributing factor in his ability to secure gainful employment. However, the VA examiner explained that the Veteran's mild level of intervention, and his PTSD symptom reporting on the PCL-M and CAPS tests, did not show that the Veteran's PTSD was of sufficient magnitude to render him totally unemployable solely due to PTSD. The examiner noted that the Veteran's level of PTSD was moderate as compared to the overall claim of impairment due to his mental disorders. The examiner observed that the Veteran's psychiatric symptomatology from PTSD and major depressive disorder was essentially the same as it had been in 2005. At a December 2009 VA audiology session, the Veteran again reported difficulty understanding speech in background noise. He demonstrated word recognition of 92 and 96 percent in the right and left ears respectively. Amplification was discussed. In January 2010, he was provided hearing aids by VA for the first time, and he reported adequate gain and good sound quality. The medical professional also noted that the sound generator program completely reduced the Veteran's tinnitus to the point that he was not consciously aware of the generated broadband signal. In May 2011, the Board essentially found that the evidence did not support a finding that the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service connected disabilities; and declined to refer the Veteran's claim to the Director of Compensation and Pension Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). As noted, the Veteran appealed the Board's denial to the Court, which vacated the Board's decision and remanded it for development consistent with a JMR. The premise of the JMR was that the Board had insufficiently addressed whether the Veteran's multiple service connected disabilities had combined to render him unemployable, and had instead simply found that the Veteran's PTSD, alone, was not of sufficient severity as to preclude employment. The Board had also stated that the Veteran has not provided any lay or medical evidence showing his tinnitus and hearing loss were severe enough to render him unemployable or even cause a problem; which the JMR took issue with as there were several statements that the Veteran had difficulty with crowd noise and background noise. Having reread the prior decision, the Board acknowledges the statement was an overstatement or oversimplification in that there clearly were medical records showing difficulty hearing with background noise and crowds, and thus some, not no, evidence of impairment. However, as will be discussed below, the Board's ultimate conclusion was correct that the Veteran's tinnitus and hearing loss did not, and do not, render him unemployable; especially in light of the fact that hearing aids were found to greatly improve his hearing acuity and reduce his tinnitus, as evidenced by the VA audiology report from January 2010. The JMR also noted that there was no single examination which made the crucial determination of whether all of the Veteran's multiple service connected disabilities rendered him unemployable. It is worth noting that since the JMR was issued, both the Court and the Federal Circuit Court of Appeals have provided additional guidance regarding examinations for TDIU purposes, explaining that a combined-effects medical examination report or opinion is not required per se by statute, regulation, or policy to properly decide entitlement to TDIU for a veteran with multiple service-connected disabilities. The Federal Circuit specifically held that "VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." Geib v. Shinseki, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013). The Federal Circuit explained further that the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner, meaning that the ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. See id. Following the JMR, the Veteran's representative wrote a post-JMR brief requesting that VA obtain a new medical opinion to address how the Veteran's hearing loss affects his ability to work. The representative also argued that the Board's discounting of the "favorable" private opinion solely on account of a "passing" reference to the Veteran's age was an inadequate reason or basis for discounting the favorable opinion. The representative also argued that the December 2009 VA examination was inadequate, although such a point was not actually raised in the JMR. Essentially, the representative argued that it was insufficient for the Board to deny a TDIU claim absent a specific medical opinion detailing the degree of occupational impairment attributable to the Veteran's PTSD. The representative then suggested that the examiner had employed a "total unemployability" analysis, rather than assessing whether the Veteran was unable to secure or follow a substantially gainful occupation. The Board accordingly remanded the Veteran's claim to comply with the JMR and made an effort to rectify in the remand instructions any perceived inadequacies that had been raised by the Veteran's representative in the aforementioned post-JMR brief. Specifically, the VA examiner was asked to note any functional impairment caused by the Veteran's service connected disabilities, including a full description of the effects of his disabilities upon his ordinary activities, if any. The examiner was also asked to discuss the effect of each of the Veteran's service connected disabilities on his ability to work. Finally, the VA examiner was asked to render an opinion as to whether it was at least as likely as not (fifty percent or greater) that the Veteran's service connected disabilities alone, without regard to age or any non-service connected health problems, rendered him unable to find and maintain substantially gainful employment. In November 2012, the Veteran underwent a VA audiology examination at which he demonstrated speech recognition of 100 and 96 percent in the right and left ears respectively. The examiner found that neither the Veteran's hearing loss, nor his tinnitus, impacted his ordinary conditions of daily life, including his ability to work. In December 2012, the Veteran's claims file was returned to the examiner who had conducted the hearing examination for an addendum opinion. She explained that high frequency hearing loss, such as the Veteran's, does affect hearing in noisy backgrounds in that he might confuse some consonant sounds and need repetition in what was said to him. However, in pest control, the examiner suggested that the anticipated effects would be minimal. She then acknowledged that tinnitus could also cause distress, and noted the Veteran's report that it was extremely bothersome, but she ultimately found that while the Veteran reported some difficulty with background noise and some annoyance from tinnitus, these symptoms alone did not significantly affect his vocational potential or limit his participation in most work activities or render him unable to find or maintain substantially gainful employment. The examiner indicated that her statement was made without regard to age or any non-service connected health problems. She added that the Veteran had normal hearing in the low frequencies and had good word recognition without visual or contextual cues per the prior tests which suggests that the Veteran could hear well enough to perform most work duties in a wide range of environments. In November 2012, the Veteran also underwent a VA psychiatric examination. The examiner diagnosed the Veteran with PTSD and concluded that his depression symptoms appeared to be a component of his PTSD and did not rise to the level of a separate diagnosis per the DSM-IV. The examiner found that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The examiner noted that the Veteran had not received any additional mental health treatment since the VA psychiatric examination in December 2009. The Veteran was noted to live with his wife, and he had some social interaction with fellow Vietnam veterans. The Veteran had not worked for 4-5 years, having last worked in residential and commercial pest control. He indicated that his activities presently involved mostly staying at home looking at the computer. In the afternoons, he liked to accomplish something such as basic housework (dishes, mowing the lawn etc.). The Veteran denied using any medication for his PTSD or receiving any treatment for it. The Veteran reported that he did not like to be around people or big groups. On examination, the Veteran was oriented to person, place and time and his insight and judgment were intact. His memory was also intact. The examiner noted that the Veteran's PSTD caused chronic sleep impairment and depressed mood. The examiner opined that it was less likely than not that the Veteran's service connected PTSD rendered him unable to find and maintain substantially gainful employment. The examiner stated that his opinion was based on a review of previous VA examinations, the evaluation by Dr. J.C., and the VA treatment records. In February 2013, an addendum was obtained to the November 2012 VA psychiatric examination. The examiner indicated that he had reviewed his prior report. Regarding the question of how the Veteran's PTSD impacted his daily activities, the examiner stated the Veteran was uncomfortable in social situations, especially where there were large numbers of people. The Veteran had difficulty interacting because of his short temper and tendency to be explosive in some situations, which would affect his relationship with complained of-workers and supervisors as well as the general public. The examiner suggested that these factors would occasionally decrease the Veteran's efficiency in work situations and cause intermittent inability to perform occupational tasks. However, only under periods of significant stress. The Veteran was generally functioning satisfactorily with normal routine behavior, self care, and conversation. The examiner stated that it was less likely than not that when the Veteran's service connected PTSD was considered with his bilateral hearing loss and tinnitus, this would render him unable to find and maintain substantially gainful employment. The examiner explained that the hearing loss and tinnitus were mild, and noted that the PTSD symptomatology which would cause an inability to perform occupational tasks only appeared under significant stress. The Veteran's representative has since argued that this opinion is inadequate, and the Board will address that argument in the duty to assist portion of this decision. However, because the Board ultimately concludes that the opinion is adequate for rating purposes, the Board will proceed with the adjudication of this appeal. As explained above, for the Veteran to prevail in his appeal the evidence of record must show that his service connected disabilities are of such severity as to render him unable to obtain or maintain substantially gainful employment. The Board has laid out the entirety of the evidence of record above, and while numerous medical opinions have been obtained in an effort to address the Veteran's employability, as recounted, the only medical opinion that even suggests that symptoms from the Veteran's service connected disabilities might render him unable to obtain or maintain substantially gainful employment is the opinion of Dr. J.C. It is observed that the Veteran's representative in a September 2013 brief suggests that this opinion is adequate evidence to support a grant of benefits in this case. The Board disagrees for the following reasons. The Board does not dispute Dr. J.C.'s medical qualifications, as noted by a VA examiner, Dr. J.C. is a well-respected board certified forensic psychologist. Thus his opinion is taken as probative evidence. However, when read in its entirety, the Board does not believe that it supports the conclusion that the Veteran's service connected psychiatric disability renders him unable to obtain or maintain substantially gainful employment. First, Dr. J.C.'s conclusion does not appear to show unemployability. He wrote: it appears likely that [the Veteran's] PTSD, his age, and his susceptibility to anger and irritability would interfere with [his] current ability to maintain a productive relationship with an employer. The Veteran has a recurrent emotional disorder that is related to his current unemployable and his unemployable status is in part service-connected (i.e. PTSD symptoms). The first sentence notes that the Veteran's psychiatric symptoms, along with other factors such as age interfere with the Veteran's employability. However, the regulations specifically provide that age is not a factor that may be taken into account in considering a TDIU claim. 38 C.F.R. § 4.19. Even if he was not taking age into account, Dr. J.C. suggests only that the Veteran's psychiatric symptoms interfere with his employability, not that they preclude or prevent substantially gainful employment. The Board does not dispute that the Veteran's psychiatric symptomatology causes some impairment with employment, as a 50 percent evaluation for PTSD, by definition, would cause the Veteran some problems with a work environment. That is, it would interfere with, not preclude, his ability to maintain productive employment. In this sense, Dr. J.C.'s opinion says very little, and the Board finds that the opinion is entitled to limited probative value on the issue of employability. Moreover, to the extent Dr. J.C. is suggesting that the Veteran's psychiatric disability is precluding him from obtaining or maintaining substantially gainful employment, his opinion appears to be internally inconsistent to the degree that his conclusion would not be supported by his findings. Specifically, Dr. J.C. estimated that the Veteran's GAF for his psychiatric symptomatology was 65-75 (it is noted that Dr. J.C. did not provide separate GAF scores for dysthymic disorder and PTSD). However, a GAF score between 61 and 70 is assigned when an individual presents either some mild symptoms (e.g., depressed mood and mild insomnia); or some difficulty in social, occupational or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. As such, it is unclear how a disability with mild symptoms and where the Veteran is generally functioning pretty well would preclude his ability to obtain and/or maintain substantially gainful employment. However, even if one were to conclude that this opinion, read alone in isolation, could support a grant of benefits in this case, the fact remains that all of the additional medical evidence weighs against such a conclusion. The Veteran's service connected psychiatric disability is currently rated at 50 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411, which directs that a 50 percent rating is to be assigned when psychiatric impairment causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. What is important to glean from this regulation is that the Veteran's assigned psychiatric rating contemplates significant, but significantly less than total, occupational impairment. Higher schedular ratings contemplate greater occupational impairment than does a 50 percent schedular rating. The Veteran did seek a higher rating for his psychiatric impairment, but the Board found that a rating in excess of 50 percent was not supported by the evidence, and denied the Veteran's request in a February 2008 rating decision. This decision was subsequently affirmed by the Court in a February 2010 memorandum decision. The Veteran filed his claim for TDIU approximately nine months after the Board decision, but the current evidence of record does not suggest that the Veteran's psychiatric symptomatology has increased since the Board decision or the Court's affirmance of the appropriateness of the 50 percent rating; or that the underlying disability has worsened. For example, the VA examiner in December 2009 noted that the Veteran's PTSD and major depressive disorder had remained essentially the same since he was examined in 2005. The examiner in 2012 also felt that the Veteran's psychiatric symptomatology was commensurate with a 50 percent rating by virtue of his indication that it caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The VA treatment records support this conclusion, showing that the Veteran is neither taking any medication for his psychiatric disability, nor undergoing any treatment for it. In a November 2011 VA treatment record, the Veteran specifically reported that he felt he had his PTSD under control and he declined any medication for it. As such, the evidence of record does not suggest that the Veteran's service connected disabilities psychiatric disability is worse than the 50 percent rating that is assigned. The Veteran's representative argues in September 2013 that the Veteran's GAF scores which include depression are lower than his GAF scores when depression is not taken into account. The representative appears to suggest that it makes a great deal of difference whether the Veteran has a separate Axis I diagnosis of major depressive disorder or whether depressive symptoms are part of the Veteran's PTSD. However, even accepting this contention for the sake of argument, the Veteran's GAF scores which "include" depression are generally between 51-60; and a GAF score between 51 and 60 is assigned when an individual presents either moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks); or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers). Ironically, the private medical opinion which the representative suggested was fully adequate assigned a GAF of 65-75 for all the Veteran's psychiatric disabilities (both PTSD and dysthymic disorder), which would represent mild to transient psychiatric symptoms. The key here is that even if the representative's theory that the Veteran's depression causes a lower GAF score and consequently greater functional impairment is accepted as accurate, the representative has not identified a GAF score that would represent more than moderate psychiatric symptoms. Again, the Board is not attempting to minimize the impact of the Veteran's psychiatric symptoms, but only to suggest that moderate symptoms are generally not of the severity to preclude a person from obtaining and/or maintaining substantially gainful employment. Moreover, the Board has not found anything unique about the Veteran's psychiatric symptomatology that would suggest that he would be an exception to the norm. While the Veteran's psychiatric impairment alone does not preclude him for obtaining or maintaining substantially gainful employment, the Board most also assess whether the Veteran's other service connected disabilities (bilateral hearing loss and tinnitus) combine with the psychiatric impairment to preclude substantially gainful employment. Here, the evidence shows some impact from hearing loss and tinnitus, but does not show that it would greatly impact the Veteran's employability. As the VA examiner explained in her addendum in December 2012, the Veteran's bilateral hearing loss and tinnitus could cause some difficulty with background noise and some annoyance from tinnitus, but the symptoms alone did not significantly affect the Veteran's vocational potential or limit his participation in most work activities or render him unable to find or maintain substantially gainful employment. This opinion was well supported by the examiner, and it is also supported by the evidence of record, including the VA treatment record which noted that the Veteran was having good results from his hearing aids, and good reduction of the tinnitus impairment. The point the Board wishes to make clear is that there is not any disagreement that hearing loss and tinnitus impair the Veteran's functioning to some degree. It is for that reason that service connection was established. However, these conditions are simply not of the severity to render the Veteran unable to work. Moreover, the Veteran's main problem from his hearing loss and tinnitus is an inability to hear with background noise and in crowds. However, as the VA examiner pointed out, neither situation would appear to be present in the conducting of pest control. This conclusion was endorsed and echoed by the VA examiner who provided the November 2012 psychiatric examination and February 2013 addendum. As such, the VA treatment records and all of the VA examination reports support the conclusion that the Veteran's bilateral hearing loss and tinnitus cause minimal interference with his employment. The Board has also considered the Veteran's statements. From his claim for TDIU, it is assumed that the Veteran believes that he is unable to obtain or maintain substantially gainful employment on account of his service connected disabilities. However, his statements throughout the course of his appeal have called this into question. For example, the Veteran told Dr. J.C. that he stopped working because he could no longer tolerate the work, in part due to safety concerns, with no mention of specific PTSD symptoms affecting his ability to secure and/or maintain employment. The Board also notes that prior to working as an exterminator, the Veteran had worked for many years, switching jobs only when the mill he was working in for years closed. He also told one VA examiner that he "wouldn't mind working"; and he told another VA medical professional in November 2011 that he felt he had his PTSD under control and he declined any medication for it. As such, the Veteran's own statements, as well as his work history, are found to provide highly probative evidence against his claim. As directed by the JMR, the Board obtained several medical opinions which precisely identified the symptoms the Veteran was experiencing as a result of his service connected disabilities, and the functional limitations that such symptoms caused. Having reviewed those symptoms, the Board is of the opinion that they clearly and unmistakably do not preclude the Veteran from either obtaining or maintaining substantially gainful employment, consistent with his education and past occupational experience. The Veteran's psychiatric disability is shown to cause at most moderate impairment, but would not appear to prevent him from working; likewise, the Veteran's bilateral hearing loss and tinnitus would not have a major impact on the Veteran's employment, given his past types of employment. For this reason, the evidence of record is against the Veteran's claim, and a TDIU is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in November 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Under these circumstances, the Board continues to find that the notification requirements of the VCAA have been satisfied as to both timing and content. It is noted that in an April 2013 statement (as he had previously written in May 2009 and January 2010), the Veteran asserted that VA had a duty to advise him how to substantiate his claim, as well as the existence of negative evidence and how to counter this evidence. The Board does not disagree with this assertion, and it is unclear from this statement whether the Veteran is insinuating that he was not properly notified. The Board does not wish to misread any assertion, but will assume that the Veteran is asserting lack of proper notification for the purpose of thoroughness of analysis in this case, and in an effort to avoid an additional remand from the Court. To the extent that the Veteran believes he has not been notified, as described above, VA has fully strived to keep the Veteran informed of his claim; and the Veteran's statement comes after the Board has already issued a decision in this case that was appealed to the Court, suggesting that the Veteran should by this point have actual knowledge of what the evidence of record is in this case and what the evidence must show. In the JMR motion, the parties made no mention of any flaws in the duty to assist. Additionally, the Veteran is represented by a private attorney who is clearly aware of what is required to establish TDIU, as evidenced by his letters to the Board in 2013, and from a reading of the JMR. More importantly, neither the Veteran, nor his representative, has asserted that the Veteran has in any way been prejudiced by any notice failures. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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). VA treatment records have been obtained, and the Veteran has not alleged receiving any private treatment beyond the single evaluation by Dr. J.C. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. It is also noted that VA granted the FOIA request, made by the Veteran's representative, and supplied him with a copy of the Veteran's claims file. VA, and the Board, then provided him with ample additional time to review the records and provide comment, and argument was received by the representative in a September 2013 letter. In his letter, the Veteran's representative argued that the December 2012 VA psychiatric examination and subsequent addendum were inadequate for rating purposes. The Board disagrees. The representative argues that the examiner in February 2013 only accounted for the effect of PTSD on the Veteran's employability instead of the effect of the Veteran's PTSD and diagnosed major depressive disorder. The representative suggested that this was relevant because the Veteran had reportedly been assigned lower GAF scores for his functioning due to his major depressive disorder. The Board notes that the representative did not cite any examples for this assertion. The one medical opinion that the representative cited to as adequate to support a grant did not assign a separate GAF score. The Board reviewed the claims file in an effort to identify the medical records the representative suggests show lower scores for depression, but has not identified such evidence. Essentially, the representative's argument is that the current psychiatric examination in inadequate in that it did not give as much weight to depressive symptoms as earlier medical professionals had. However, the VA examiner in 2012 and 2013 specifically considered the Veteran's depression symptoms (concluding the symptoms are part of PTSD), and the earlier psychiatric evaluations, including depression findings, did not show a severity of psychiatric symptomatology that would suggest that the Veteran would be precluded from obtaining or maintaining substantially gainful employment. As such, the Board believes that any failure by the VA examiner to parse out a more specific opinion as to depression is at most harmless error and does not prejudice the Veteran. Turning back to the examination reports, the VA examiner in 2012 and 2013 reported the psychiatric symptoms the Veteran experienced and addressed the functional impairment caused by those symptoms. This report provided the Board with the information it needed as finder of fact to assess the impact of the Veteran's service connected disabilities on his ability to work. Again, the ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. See Geib, supra. The VA audiology examination likewise provided the symptoms of and functional impairment caused by the Veteran's hearing loss and tinnitus. Therefore, the Board finds that the most recently obtained VA examinations are fully adequate. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. 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. ORDER A TDIU is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs