Citation Nr: 1338843 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-42 858 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) by reason of service-connected disability. ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to December 1979. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an August 2009 rating decision of the RO. The Board remanded the case in April 2011, June 2012 and August 2013 for additional development of the record. It has now been returned to the Board for appellate disposition. FINDINGS OF FACT 1. Prior to October 19, 2011, the Veteran was service-connected for an anxiety disorder not otherwise specified (NOS), rated 50 percent disabling, and status post (s/p) left knee injury with ossification of the medial collateral ligament, rated 10 percent disabling. His combined disability rating was 60 percent. Beginning October 19, 2011, the disability rating for the service-connected anxiety disorder was increased to 70 percent, and his combined disability rating was 70 percent. 2. The Veteran is not shown to be precluded from securing and following substantially gainful employment consistent with educational and work background solely by reason of his service-connected disabilities during any portion of the period of the appeal. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating have not been met during the period of the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in March 2009 which explained how VA could assist him with developing information in support of his claims. The letter explained what the evidence needed to show in order to establish entitlement to TDIU and also explained how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service records, electronic and paper VA treatment records, treatment notes from the Veteran's private psychiatrist, lay statements, the written submissions of the Veteran, employment information submitted by the Veteran, and letters from his psychiatrist and therapist. The Board notes that no underlying treatment records from the therapist are in the claims file. The Veteran submitted a release for records from his therapist is December 2008 in connection with an accompanying increased rating claim and these records were not obtained at the time. In accordance with an April 2011 remand, the Veteran was requested to provide a current release to enable VA to obtain his therapy records insofar as the prior release was several years old. He did not provide the requested release; therefore, the records could not be obtained. The Board finds that VA took appropriate efforts to obtain all relevant evidence in support of the Veteran's claim. He was also provided with multiple VA psychiatric examinations in support of his claim which included review of the claims file and personal interviews of the Veteran and which together fully documented his reported symptoms and their effects on his employability. He also was provided with VA examinations to evaluate his service-connected knee disability and to document the symptoms and functional effects of that disability with reference to effects on employment. Thus, the Board finds that the requirements of VCAA have been met in this case. The Board's most recent remand of this case in August 2013 required VA to obtain updated VA treatment records and readjudication of his claim. Updated treatment records were associated with the Veteran's electronic Virtual VA claims file. His claim was readjudicated in a September 2013 Supplemental Statement of the Case (SSOC). Therefore, there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU The Veteran asserts that he is prevented from working due to his service-connected psychiatric and knee disabilities. He primarily asserts that his anxiety symptoms cause him to be unable to work. Prior to October 19, 2011, the Veteran was service connected for an anxiety disorder not otherwise specified (NOS), rated as 50 percent disabling and status post (s/p) left knee injury with ossification of the medial collateral ligament, rated as 10 percent disabling. His combined disability rating was 60 percent. Beginning on October 19, 2011, the disability rating for the service-connected anxiety disorder was increased to 70 percent and his combined disability rating was 70 percent. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Prior to October 19, 2011, the scheduler requirements for a TDIU rating were not met. They were met on October 19, 2011, which was the effective date for the 70 percent rating for the service-connected anxiety disorder. It is VA's policy that all Veterans who are unable to follow a substantially gainful employment by reason of service connected disabilities shall be rated totally disabled. Therefore, referral to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of 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). 38 C.F.R. 4.16(b). When a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Rather, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. To make this determination, the Veteran's level of education and previous work experience may be considered, but not his age or any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court of Veterans Appeals (Court) observed that the regulations governing the award of benefits for individual employability are "apparently conflicting as to whether an objective ('average person') or subjective ('the veteran') standard applies in determining 'unemployability' in a particular case." Id at 167. The VA General Counsel addressed the Court's concern in a precedential opinion, concluding that Veterans who are unable to secure and follow any substantially gainful occupation as the result of their service-connected disabilities, viewed in light of their individual circumstances, but without regard to age, should be rated totally disabled without regard to whether an average person would be rendered unemployable by the circumstances. Further, the General Counsel clarified that the term 'unemployability' is synonymous with 'inability to secure and follow a substantially gainful occupation.' VAOGCPREC 75-91. Additionally, as observed by the Court in Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994), a claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). 'Substantially gainful employment' is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 38 C.F.R. § 4.16(a) states that "[m]arginal employment shall not be considered substantially gainful employment." The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore, 1 Vet. App. at 359 (citing Timmerman, supra at 442). The Veteran's reported employment history was that as an electrician in the 1980s, followed by a period of unemployment due to inability to find work, and later working at odd jobs and as a self employed building cleaner. The Veteran apparently never tried to learn any employment skills or obtain any type of sedentary employment after losing his electrician job more than 20 years ago. Rather, he chose to do odd jobs such as minor car repairs and washing cars. The service-connected left knee disability was evaluated by an examination in September 2008. At that time, he reported having knee pain, occasional stiffness and popping, and occasional giving way. Repeated squatting or running caused flare ups, and the pain was alleviated by rest. The Veteran did not use a cane at that time and was able to remove his shoes and socks on his own. Upon examination, there was no apparent functional limitation on walking and standing. However, the examiner felt that the knee disability limited the Veteran's ability to do physical employment, although it did not significantly affect his daily activities. The Veteran reported being unable to stand for a long time or do heavy lifting and avoiding prolonged standing and walking and running. The Veteran also was examined by VA in September 2008. At that time, the Veteran reported being irritable and avoiding social relationships because people got on his nerves. He initially showed some hypervigilence at the interview, but was able to calm down and relax in time. His memory appeared intact. Due to memories of a car accident in service, the Veteran was noted to have anxiety driving and avoided driving at night. He had a past history of substance abuse. When asked why he stopped working, he reported that he just got tired of it. He reported still having some dreams about the car accident. He was diagnosed with anxiety disorder NOS and a personality disorder which correlated with a strong sense of entitlement and irritability. The examiner assigned a global assessment of functioning (GAF) score of 65 for anxiety disorder, generally denoting mild symptoms. The examiner noted that the symptoms of personality disorder were more serious and would warrant a GAF of 50 for that and was on the least severe end of the spectrum of symptoms that would be considered serious in nature. The personality disorder seemed to have led to some of the difficulties with employment. The Veteran was reevaluated in October 2011. He was again diagnosed with anxiety disorder NOS and a personality disorder by history. The examiner felt that the symptoms of these could not be differentiated. Symptoms included anxiety while driving and avoiding driving at night or on the highway. He continued to have nightmares related to his car accident. The Veteran also was noted to display a depressed mood, anxiety, difficulty establishing and maintaining work and social relationships, and difficulty adapting to stressful circumstances. His depression was not severe enough to warrant a separate diagnosis. The examiner assessed the Veteran's symptoms as causing occupational and social impairment with reduced reliability and productivity. He was assigned a GAF of 58, denoting the less severe end of the range of symptoms that would be considered moderate in nature. The Veteran was examined again in June 2012. At that time, he was diagnosed with anxiety disorder NOS. The examiner assessed his symptoms as causing occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily and a mild phobia related to riding in cars. He reported having some homicidal thoughts without intent. He was assigned a GAF score of 65, although the examiner stated that in fact the Veteran's anxiety symptoms were moderate. The Veteran was again examined by VA in January 2013. He was diagnosed with anxiety disorder, NOS; personality disorder; and substance abuse. Symptoms included anxiety and chronic sleep impairment, although the examiner noted that the Veteran's sleep problems were largely caused by his nonservice-connected sleep apnea. The examiner observed that there were indications that the Veteran was exaggerating his symptoms and that his personality disorder played a large part in his functional impairment. A GAF score of 65 was assigned. The examiner noted this assessment was inclusive of impairment caused by the personality disorder and, were it to be excluded, the GAF would be even higher. He had done an excellent job maintaining sobriety. The Veteran's symptoms were assessed as causing occupational and social impairment due to mild or transient symptoms. His anxiety, and even including his personality disorder, did not cause specific problems with work functioning. The examiner also addressed statements from the Veteran's therapist, discussed hereinbelow. He felt the therapist's assessment was less accurate than the June 2012 VA evaluation that was performed by a licensed psychologist who had extensive experience working with Veterans and who conducted a more thorough evaluation. The Veteran submitted multiple letters from his therapist, a masters level licensed psychological associate (LPA), from 2008 and 2012. Although they were cosigned by a doctoral level provider, it is unclear whether the cosigning provider personally saw the Veteran or what if any documentation she had reviewed prior to cosigning the letters. The Veteran's therapist opined that the Veteran's symptoms significantly interfered with all aspects of his life and that he was unable to work due to his symptoms. She cited difficulties with memory and concentration, irritability, isolating behaviors, and mood swings that made it difficult to establish relationships with others. In June 2012, the therapist related that the Veteran had posttraumatic stress disorder (PTSD) and a depressive disorder. In addition to other symptoms previously reported, he also had cognitive problems that caused him to be unable to perform work that involved sustained concentration, problem solving, or decision making and that his irritability, isolative behaviors and hypervigilance made it difficult for him to initiate or sustain relationships. The therapist reiterated her opinion that the Veteran could not work and assigned a GAF of 30 that denoted behavior that was considerably influenced by delusions or hallucinations or serious impairment in communication of judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or inability to function in almost all areas (e.g. stays in bed all day, no job, home, or friends). The Veteran also submitted a February 2013 letter from a psychiatrist. The psychiatrist stated that the Veteran had nightmares, panic attacks, severe memory impairment and hallucinations. In direct contrast to the VA examinations, the psychiatrist opined that the Veteran was very depressed and at times suicidal. He assigned a GAF of 35 and opined that the Veteran could not work. The treatment records reflect that, at the time of this evaluation, the psychiatrist had seen the Veteran only one time for 20 minutes. The VA treatment records reflect complaints of various problems with pain and pain management, primarily foot pain from neuropathy rather than left knee pain. He was seen in a mental health one time in December 2012 for pain and depression due to foot pain and complaints of nightmares. There was no suicidal or homicidal ideation. GAF was recorded to be 50. After that, he elected to see the private psychiatrist. The Veteran's wife reported that the Veteran was irritable and suspicious, had mood swings and nightmares, had trouble accepting change, and that learning new tasks caused him increased anxiety. The evidence does not support a finding of unemployability due to service-connected disabilities either prior to or after the Veteran met the schedular requirements. While the service-connected left knee disability had some effect on physical employment, it was not shown to have any effect on sedentary employment. Additionally, the Veteran was able to perform the work that he bothered to obtain, including cleaning work, washing cars, and minor repairs, despite his knee problem. His activities of daily living were largely unaffected by his left knee disability in that he was able to walk and stand but avoided doing these activities for prolonged periods. The level of functional impairment from the left knee disability, which consists primarily of left knee pain, is not severe enough to materially limit employment or to render the Veteran unemployable. The service-connected psychiatric disability also is not shown to be so disabling as to preclude the Veteran from securing and following substantially gainful employment. The Veteran's therapist and psychiatrist opined that the Veteran was unable to work due to PTSD and depression, their opinions were in clear contrast to the findings of all of the four VA examination of the Veteran, incidentally none of which even diagnosed PTSD, and all which were consistent over time in evaluating the Veteran's service-connected disability and assessing his employability. The Board notes that, while the VA examiners reviewed the claims file and conducted comprehensive evaluations of the Veteran, there is no evidence that the Veteran's therapist or psychiatrist had access to the claims file or any treatment records other than their own. Significantly, the psychiatrist appears not to have spent a significant amount of time in evaluating the Veteran in contrast to the several VA examinations. Neither the psychiatrist's findings nor those of the Veteran's therapist were supported by the evidence obtained from four extensive VA examinations of the Veteran. While there was some overlap in symptoms between what was documented by the therapist and psychiatrist and the VA examiners, the VA examiners' review of the records and comprehensive assessments did not identify any level of memory impairment or evidence of the cognitive difficulties documented by the Veteran's therapist or psychiatrist and associated by them with the service-connected anxiety disorder. There also was no showing of symptoms such as suicidal ideation or hallucinations mentioned by any of the VA examiners, although the psychiatrist claimed that the Veteran experienced these symptoms without addressing the manifestations in detail. Significantly, the Veteran's wife did not describe such behavior in her statement in support of the claim. Symptoms such as anxiety and irritability were noted by all of the VA examiners in additional to the private health care providers, but the VA examiners assessed these symptoms, as well as the Veteran's full constellation of symptoms, as causing only mild to moderate impairment. Notably, in determining the level of the Veteran's impairment in 2011, 2012, and 2013, the VA examiners identified symptoms of the service connected anxiety disorder and a nonservice-connected personality disorder, but considered all of his psychiatric symptoms, regardless of their cause, in assessing his level of social and occupational impairment. Thus, the VA examiners' assessments were actually more favorable to the Veteran than they would have been if his anxiety and personality disorder symptoms were addressed separately and only his anxiety disorder considered. Yet, the VA examiners still did not identify manifestation to warrant a finding of unemployability. While the Veteran is unemployed and has been so for quite some time, the evidence does not show that this is caused by his service-connected disabilities alone. Rather, the Veteran has reported that simply decided that he did not want to work anymore. To the extent that this decision not to work is not shown to be due to either service-connected disability, a TDIU rating cannot be assigned. Rather, the inability to work must be caused solely by the service connected disabilities, in this case the anxiety disorder and left knee disability. The left knee disability has minimal effect on employment and no effect on sedentary employment, with some functional limitation on heavy lifting and prolonged walking and standing. The psychiatric disability, even when viewed most favorably to the Veteran, has at most a moderate effect on his ability to work. When viewed together, the level of limitation created by these service-connected disabilities does not preclude him from engaging in substantially gainful employment. The benefit of the doubt rule has been considered; however, the weight of the evidence is against the Veteran's claim. ORDER A TDIU rating is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs