Citation Nr: 1339751 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-21 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder, effective August 11, 2006, and in excess of 50 percent, effective May 15, 2012. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to TDIU, and also denied service connection for PTSD and major depressive disorders at that time. The Veteran timely appealed those issues. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2011, at the RO; a transcript of that hearing is associated with the claims file. The Board notes that this case was initially before the Board in November 2011, when the two service connection and TDIU claims were remanded for further development. During the pendency of that remand, the Veteran was awarded service connection for PTSD and major depressive disorders in an August 2012 rating decision. Thus, the Board finds that those issues are no longer on appeal and will no longer be addressed in this decision as that rating decision represents a full award of benefits sought on appeal with respect to those issues. The sole issue that remains on appeal at this time is the Veteran's claim for TDIU. The development requested in the November 2011 remand having been completed, the case has been returned to the Board for further appellate review at this time. The issue of increased evaluation for his PTSD and major depressive disorders has been raised by the record and is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The evidence of record demonstrates that the Veteran is currently employed full-time at a home improvement center; his service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful, full-time employment at this time. CONCLUSION OF LAW The criteria establishing entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in September 2006 that provided information as to what evidence was required to substantiate the claim for TDIU herein decided and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an April 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. Finally, the Board acknowledges that his TDIU claim was the subject of a November 2011 Board remand. In that remand, the Board instructed that the Veteran be afforded an examination regarding his claimed PTSD; such was performed on May 15, 2012-which is the predication of his increased evaluation of his PTSD on that date. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran is current evaluated as noncompensable for ureteroliathiasis and 30 percent for his PTSD from August 11, 2006 to May 14, 2012, and 50 percent thereafter. As the Veteran does not have a single service-connected disability rated at 60 percent or more and the combined rating for his service-connected disabilities is either 30 or 50 percent throughout the appeal period, he does not meet the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that 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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court, citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), noted that it was clear that "a 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. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. In this case, however, the Board finds that the evidence does not demonstrate that the Veteran is precluded from obtaining and maintaining substantially gainful, full-time employment at this time, and therefore a referral to the Director is not necessary. The Veteran submitted his claim for TDIU in August 2006, in which he indicated that he was "unable to work or keep steady job." In a December 2006 statement, the Veteran indicated that he could not hold a steady job and was drawing unemployment benefits at that time. A VA treatment record from February 2007, however, noted that the Veteran had multiple jobs over the years. He owned his own freight business, which was rather successful; that job was stressful, however, and he suddenly closed it in 2004. Since closing his business, the Veteran worked selling motorcycles and was doing well, before walking off the job after fighting with his manager. The Veteran was shown to be currently working at home improvement center full-time in sales. The Veteran's other VA treatment records from September 2006 to September 2009 generally demonstrate similar findings and reports with respect to the Veteran's employment. The Veteran's private treatment records document that he has had treatment for depression and anxiety, but those records do not comment on his employability. The Veteran underwent a VA psychiatric examination in October 2007, at which time it was reported that he was currently employed full-time as a salesperson, and had been employed there for 2 to 5 years. He had lost a week of work in the last 12-month period due to his psychiatric symptomatology. The examiner noted in his conclusion that the "Veteran functions relatively well in his full-time job. [His psychiatric disorder] is not severe enough to interfere with his occupational functioning." In a May 2009 statement, the Veteran reported that since discharge from service he has had 30-plus jobs. He stated that he is "unable to control situations that allow [him] to succeed in any given field, and [he has] had many." In his April 2011 hearing, the Veteran testified that he was currently working at a home improvement center in a non-sales position; he set up sales displays as a full-time employee, which limited his interaction with customers. He reported that he moved from a sales position to a non-sales position as an accommodation with his boss, who is aware of the Veteran's situation. The Veteran underwent another VA psychiatric examination on May 15, 2012. Again, in that examination report, it is noted that the Veteran sold his freight company around 2005. He has been working full-time at [the home improvement center] for five to six years. He started in sales, but was pulled from the floor after numerous altercations with customers. He stated that he was fortunate to have a supervisor that has given him consideration enough to place him in a more solitary position (doing inventory and setting up displays) in which his interactions with others are minimal. The Veteran noted that he has good days and bad days, and is comfortable enough expressing his needs and disposition (on any given day) to his boss, so as to avoid problematic situations. The Veteran finally stated in his October 2012 statement, in which he was disagreeing with his PTSD evaluations assessed in the August 2012 rating decision, that his "overall work history is tenuous." He also stated that, "The fact that I have fabricated a way in which to work, does not mean that my symptoms have not greatly affected my work now or in the past. . . . Although I work, workplace interaction is the greatest exacerbation of my symptoms." Based on the foregoing evidence, the Board finds that the evidence demonstrates that the Veteran is currently not unemployable due to his service-connected disabilities. The Board notes that throughout the appeal period, the Veteran has been employed full-time, first as a sales position and then in a non-sales position as an accommodation by his employer to lessen his social interactions which exacerbate his psychiatric symptomatology. While the Board notes that while his psychiatric disorder affects his employability, such a disability evaluation is assigned to the Veteran in order to compensate him for that effect on his occupational functioning. Such effects do not render the Veteran unemployable at this time, as the evidence of record clearly demonstrates he is working in a full-time capacity despite his psychiatric difficulties. Accordingly, the Board finds that entitlement to TDIU must be denied at this time based on the fact that the Veteran is a full-time employee at the home improvement center throughout the appeal period, and that his service-connected disabilities do not do not preclude him from obtaining and maintaining substantially gainful, full-time employment at this time. See 38 C.F.R. §§ 3.102, 4.16(b). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to TDIU is denied. REMAND The Board notes that the Veteran was awarded service connection for his PTSD and major depressive disorder in an August 2012 rating decision; he was assigned a 30 percent disability evaluation, effective August 11, 2006-the date on which he filed his claim for service connection-and was increased to 50 percent disabling, effective May 15, 2012-the date of his most recent VA examination. In an October 2012 correspondence, the Veteran indicated that he disagreed with his assigned evaluations for PTSD and major depressive disorder. Therefore, the Board finds that the Veteran has properly initiated the appeals process with respect to that claim. See 38 C.F.R. § 20.200 (2013). Accordingly, VA has a duty to issue a statement of the case on that issue so that the Veteran may complete an appeal by filing a Substantive Appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, a remand is necessary as to that issue. Accordingly, the case is REMANDED for the following action: The RO should readjudicate the issue of increased evaluation for his psychiatric disorder. If the claim remains denied, the RO is directed to promulgate a statement of the case on that issue and to provide the appellant with the appropriate notice of appellate rights. If the claim is not resolved to the appellant's satisfaction, he should be provided with a statement of the case and an appropriate opportunity to respond thereto. This issue should be returned to the Board only if a timely substantive appeal is received. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs