Citation Nr: 1340306 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-41 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio. In May 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge held at the RO. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran is service-connected for an anxiety reaction with posttraumatic stress disorder (PTSD), with a 50 percent disability rating, and with irritable bowel syndrome (IBS) with chronic diarrhea and gastroesophageal reflux disease (GERD), with a 30 percent disability rating. 2. The Veteran's overall combined disability rating with two or more service-connected disabilities is 70 percent, effective December 6, 2006, with at least one disability rated at 40 percent or more and the combined rating at 70 percent or more. Therefore, the Veteran meets the schedular criteria for a TDIU. 3. The evidence is at least in equipoise regarding whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation during the entire appeal period. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), of any information and any 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service connection claim, to include veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Considering the determination reached in this decision the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of the TDIU claim without detriment to the due process rights of the Veteran. TDIU - Laws and Regulations Total disability means that there is present an impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A veteran is determined to be unable to engage in a substantially gainful occupation when jobs are not realistically within his physical and mental capabilities. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or 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). Two different means exist to determine whether a veteran is totally disabled. The Schedule for Rating Disabilities provides for a finding of total disability to be made on an objective basis. A veteran is considered totally disabled if his service-connected disability is, or combination of service-connected disabilities are, rated at 100 percent. 38 C.F.R. § 3.340(a)(2). Even if the veteran is less than 100 percent disabled, he still will be considered totally disabled if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent rating. If he has one service-connected disability, it must be rated at 60 percent or more. If he has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran seeks a TDIU due to his service-connected disabilities. In his written submissions and Board testimony, he contends that he should be granted a TDIU because he has met the schedular rating, because his service-connected PTSD interfered with his long-time employment with the post office and led him to take a lower paying job there as well as early retirement, and because otherwise he is too disabled to work. In this case, the Veteran is currently service-connected for two disorders: for an anxiety reaction with PTSD, with a 50 percent disability rating, and for IBS with chronic diarrhea and GERD (secondary to his anxiety/PTSD disorder), with a 30 percent disability rating. His combined evaluation for compensation purposes is 70 percent. The Board notes that the Veteran's digestive system disorder is evaluated at the maximum rating pursuant to Diagnostic Code 7319 at 30 percent. Further, in his May 2009 Notice of Disagreement (NOD) the Veteran indicated that he was appealing only the denial of his TDIU claim. He did not appeal the RO's determination in April 2009 that the Veteran's current disability ratings for an anxiety reaction with PTSD (at 50 percent) and for IBS with chronic diarrhea and GERD (at 30 percent) be continued. Further, information found in the claims file and in the Veteran's eFolder indicates that the RO interpreted the submission of Vet Center records in March 2011 "for my claim for unemployability due to PTSD" as a claim for a rating in excess of 50 percent for an anxiety reaction with PTSD. In a June 2013 rating decision the RO then again denied any higher rating. There is no indication in the record that the Veteran has appealed the June 2013 denial of a higher rating or that he even wanted to raise another increased rating claim for his mental disorder while his TDIU claim was still on appeal. Thus, as the Veteran has two service-connected disabilities and one disability is rated at more than 40 percent, with a combined rating of 70 percent, he clearly meets the minimum percent rating requirement of 38 C.F.R. § 4.16(a). Consequently, the schedular standards for consideration of a TDIU under 38 C.F.R. § 4.16(a) are met. The remaining question before the Board, therefore, is whether the Veteran is unemployable by reason of his service-connected disabilities alone, taking into consideration his educational and occupational background. The fact that a veteran is unemployed is not enough. The question is whether his service-connected disorders without regard to his nonservice-connected disorders or lack of work skills or advancing age made him incapable of performing the acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record reflects that the Veteran is currently 65 years old. During his period of active duty, he served with the Marines in the Republic of Vietnam where he received the Combat Action Ribbon. He indicated on his VA Form 21-8940 (Veteran's Application For Increased Compensation Based on Unemployability), received in January 2009, that he had completed four years of college. He also indicated on this form that he had worked full-time for the United States Postal Service from June 1985 to October 2006 as a custodian and maintenance man and had lost 40 weeks from work due to illness. The Veteran also indicated that his service-connected PTSD and IBS prevented him from securing or following any substantially gainful occupation. According to information in the claims file, the Veteran worked for a railroad for some unspecified period of time between discharge from service and employment with the post office. His employer's July 2010 notice to VA indicated that the Veteran voluntarily retired from the post office after working there as a custodian from June 1985 to October 2006 and that since retirement he has received a monthly lifetime pension. Vet Center records dated from January 2008 to November 2010 show counseling for anger management, agitation and anxiety. VA treatment records dated from January 2008 to March 2013 show continuing treatment for his two service-connected disabilities. A problem list of medical disorders associated with VA medical records included the following: hypertension, hyperlipidemia, hypothyroidism, renal calculi, bronchitis, a pain in the joint involving ankle and foot, and dyspepsia. The Veteran also testified at his Board hearing that a dispute over his nonservice-connected shoulder injury contributed to his early retirement from the post office. The Veteran underwent a VA examination of his service-connected digestive disorder in February 2009. He told the examiner that he had retired from the post office two years before due to his PTSD disability. A weight gain of more than 32 pounds over the past 10 years was noted and the Veteran's weight was given at 251 pounds. The Veteran reported three to four loose episodes of diarrhea daily and that he took Loperamide up to four times daily as needed. He also reported daily lower abdominal pain and cramps, some nausea, epigastric pain on a daily basis, daily regurgitations, and dysphagia. The VA examiner noted no effects on occupational functioning because the Veteran had retired from the post office. The examiner diagnosed IBS and GERD, noted IBS did not cause the Veteran to retire from the post office, and opined that IBS would not prohibit sedentary employment. She also noted that GERD would not impact his employment since he had retired from the post office two years before after 25 years of employment. The Veteran underwent a VA mental examination in February 2009. The report noted that the Veteran served as a machine gunner in active combat while in Vietnam where he witnessed deaths and injuries. Post-discharge, the report noted that the Veteran was 10 hours shy of a bachelor's degree in special education due to the unavailability of a teaching position, alcohol drinking, and PTSD symptoms. He then worked two years in a tool shop; seven years on the railroad; and 25 years for the post office. It was noted that the Veteran retired after the suicide of a close Vietnam veteran friend and after he was reassigned to a job where he was unable to work alone. The Veteran denied taking current psychiatric medications, but said he had received individual counseling at the Vet Center since May 2008. Psychiatric symptoms included: recurrent and intrusive distressing thoughts or images and nightmares related to the Vietnam War; sleeping difficulties; irritability and anger outbursts, such as road rage; difficulty concentrating; hypervigilance; exaggerated startle response; and intermittent depressive mood with survivor's guilt. He denied recurrent suicidal ideation. On mental status examination, the Veteran's affect was slightly irritable and congruent with an "OK" mood. He had no suicidal or homicidal ideation or delusions and showed good insight and good judgment. Diagnosis was PTSD with a Global Assessment of Functioning (GAF) score of 55 assigned for moderate symptoms. The VA psychiatrist noted that the Veteran was experiencing a high moderate number and frequency of moderate PTSD symptoms. The VA examiner also noted that these symptoms would cause significant reduced productivity and markedly interfere in his ability to interact effectively and work efficiently. However, the examiner noted that there was no evidence of deterioration in functioning or major changes in severity of the PTSD disorder since a previous examination. In his May 2009 NOD the Veteran acknowledged that he reported on his claim form that he did not retire from the post office because of his disability. However, he stated that in reality he was forced to retire only because the post office could not find a job for him to do because of his service-connected disabilities. He said he had been placed on light duty in August 2004 due to a shoulder injury. He said he later retired because they could not find a job for him to do. He said he was told that if he did not take the job that was offered he would be fired, which he said left him no alternative. He also stated that he was penalized for retiring early. The Veteran also claimed that he only worked four years as a letter carrier and then had to switch to the maintenance department because of his PTSD condition. A March 2010 notice from the Social Security Administration (SSA) revealed that the Veteran never filed an application for SSA disability benefits. In his October 2010 VA Form 9, Substantive Appeal, the Veteran explained that he decided to retire early from the post office rather than run the risk of being fired because his immediate supervisor was going to change his job position. In a November 2010 signed statement, the Veteran revealed that while his anger and irritability issues were being treated he had no tolerance for people who got too close to him and did explode into road rage when driving. He stated that he generally did not trust those who were not veterans. He also explained that he often came close to soiling his pants when out in public because of his bowel disorder. During his May 2011 Board hearing, the Veteran testified that he first worked for four years as a letter carrier at the post office, but transitioned to a lower-paying custodial job to avoid some time pressures and supervision. He said his divorce was extremely hard - he said his wife ran off with another woman - and at this point he transferred to the afternoon shift where he had less supervision and was able to work more by himself. He told the undersigned that he was "boxed" into retirement because he had filed a claim for a shoulder injury and was told that if he did not accept a light duty job he would be fired. Only a few months before a Vietnam service buddy who spent 34 years with the post office committed suicide. The Veteran testified that he reacted with his temper when his boss gave him the ultimatum and he went to personnel and retired for his "own sanity." The Veteran also testified to a constant daily problem with bowel movements. See hearing transcript at pp. 3-6. The Veteran's service representative told the undersigned that he felt the comments of the February 2009 VA PTSD examiner indicated that the examiner felt the Veteran was unable to work. The Veteran told the undersigned that he went to the Vet Center probably at least once a week for counseling. Id. at pp. 7-8. In light of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran is not capable of securing and following a substantially gainful occupation as a result of his service-connected disabilities. There is no evidence that the Veteran's nonservice-connected disorders noted in his VA treatment records affect his ability to obtain and maintain employment or render him unemployable. However, the evidence of record suggests that the Veteran's service-connected disabilities, coupled with consideration of his limited work experience, preclude him from securing and following substantially gainful employment. The medical and lay evidence suggests that the combination of his service-connected disabilities - especially his anxiety reaction with PTSD - operate as an occupational impairment. While it appears from the Veteran's Board testimony that a dispute with his supervisor concerning his nonservice-connected shoulder injury led to his early retirement from the post office, the totality of the medical and lay evidence above suggests that the Veteran's PTSD, particularly his lack of anger management, operates as an occupational impairment as do his difficulties with diarrhea and digestion. Though the claims file does not contain the opinion of a VA examiner to the effect that one of the Veteran's service-connected disabilities, or both in combination, preclude his gainful employment, resolving all reasonable doubt in the Veteran's favor, and taking into consideration the credible testimony of the Veteran during his May 2011 Board hearing, the Board will find that it is at least as likely as not that the Veteran's service-connected disabilities, considered together as a whole, preclude the Veteran from obtaining and maintaining substantially gainful employment. See Geib v. Shinseki, No. 2012-7164, 2013 WL 5788671, at*3 (Fed. Cir. Oct. 29, 2013) (noting that the ultimate determination of a TDIU is on VA and not a medical examiner and that VA's duty to assist a claimant does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities). In this case, given the Veteran's combination of service-connected disabilities, especially the temperamental and anti-social symptoms of his anxiety reaction with PTSD, he would likely have difficulty working again in a maintenance or custodial position with the federal government or with any other private or governmental entity. Moreover, there is no indication from the record that he could perform his former job on the railroad, which apparently involved much travel, in view of his service-connected IBS disorder with chronic diarrhea and GERD. There is no indication from the record that he has any previous work experience or training outside of these trades, except for the notice in the February 2009 VA examination that he had worked for two years in a tool shop. The record does not indicate any training or skills for desk-type sedentary employment or any capacity to successfully acquire those skills. Moreover, there is no indication from the record that the Veteran has any previous work experience or training involving sedentary work. It thus appears that the Veteran has no specific skills to re-enter the work force at a job that would not involve some type of manual labor and supervision and implicate his service-connected disabilities. The Board finds that the Veteran is essentially precluded from securing substantially gainful employment in even sedentary positions due to his service-connected disabilities. According to the available record, the Veteran has little or no experience or qualifications for sedentary, clerical employment. His previous work experience consisted of working on a railroad, in a tool shop, and for the post office as both a letter carrier and then as a custodian. Given this relevant job experience, it is highly unlikely that the Veteran would be able to obtain a sedentary position. Therefore, it appears that jobs are not realistically within the Veteran's physical capabilities. Moore, 1 Vet. App. at 359. In addition to his service-connected disabilities, the Veteran also suffers from the other diseases noted above. But even apart from these nonservice-related disorders, the lay and medical evidence of record indicates that he would most likely be unable to secure or maintain substantially gainful employment due alone to his service-connected disabilities. In other words, even if his nonservice-connected disorders were not present, he still would be unable to obtain or maintain substantially gainful employment because of the severity of his anxiety reaction with PTSD and IBS with chronic diarrhea and GERD disabilities considered together. As the Veteran has many disabilities, both service-connected and not, there can be no doubt that further inquiry could be undertaken with a view towards development of this TDIU claim. However, under the "benefit-of- the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). The Board is of the opinion that, at a minimum, this matter is at the point of equipoise. On the one hand, the Veteran has credibly testified before the undersigned that his PTSD not only led him to quit and take early retirement during his last dispute with his supervisor, but that years ago it led him to take a lower paying job at the post office to escape the pressures of time quotas and supervision he faced as a letter carrier. On the other hand, no VA examiner has found that any one of the Veteran's service-connected disabilities, alone or in combination, would render him unable to secure or follow a substantially gainful occupation, although the February 2009 PTSD examiner opined that the Veteran's current PTSD symptoms reflected significant reduced productivity and markedly interfered with his ability to interact effectively and work efficiently. While there is evidence reflecting that the Veteran has nonservice-connected disabilities that may contribute to his unemployability, overall the evidence strongly suggests that the Veteran's service-connected disabilities, alone and in combination with one another, are significant enough in their own right to preclude him from obtaining substantially gainful employment. Therefore, based on its review of the relevant evidence, and giving the benefit of the doubt to the Veteran, the Board finds that it is as likely as not that the Veteran is precluded from work due to his service-connected disorders. As such, a TDIU is warranted. ORDER Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is granted during the entire appeal period, subject to the laws and regulations governing the award of benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs