Citation Nr: 1438136	
Decision Date: 08/26/14    Archive Date: 09/03/14

DOCKET NO.  09-11 491	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. Jones, Associate Counsel






INTRODUCTION

The Veteran had active military service from September 1966 to September 1969. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating effective June 4, 2007.

In a decision dated in January 2011, the Board granted an initial 50 percent disability rating for PTSD and remanded the issue of entitlement for a TDIU for further development to include providing VCAA notice and adjudicating the claim of entitlement to a TDIU.  In a supplemental statement of the case (SSOC) dated in January 2013, the RO denied entitlement to a TDIU.


FINDINGS OF FACT

1. The Veteran is service-connected for PTSD, (rated as 50 percent disabling); tinnitus (rated as 10 percent disabling); and right ear hearing loss (rated as 0 percent disabling).  His combined evaluation is 60 percent.

2. The Veteran's service connected-disabilities do not preclude employment consistent with his education and occupational experience.


CONCLUSION OF LAW

The criteria for a TDIU rating 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

Duty to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

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).

In this case, the Veteran received a notice letter dated in January 2011 that informed him of what evidence was required to substantiate a claim of entitlement for a TDIU and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.  He was also apprised of how VA determines disability ratings and effective dates.

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).

Service treatment records (STRs) are associated with claims file.  All post-service treatment records identified by the Veteran have also been obtained.  The Veteran has not identified any additional records that should be obtained prior to appellate consideration.  VA's duty to further assist the Veteran in locating additional records has been satisfied.  

Additionally, the Veteran was afforded three VA examinations in conjunction with his claim for a TDIU.  
In light of the forgoing, the Board finds there has been substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Further, the Board finds that the duty to notify and duty to assist provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA.

Legal Criteria

In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, 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).

For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

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).

VA policy is; however, to grant a TDIU in all cases where a Veteran is unable to work due to service connected disability.  Rating boards are required to submit to the Director, Compensation and Pension Service (Director), for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disability(ies), 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). 

Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a total disability evaluation based on individual unemployability under 38 C.F.R. § 4.16(b).  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  The Board may, however, refer the claim to the Director for extraschedular consideration.  The governing norm for the Board in making the determination is whether there is a plausible basis for concluding that the Veteran is unable to secure and follow a gainful occupation.  Bowling, 15 Vet. App. at 9-10.

Analysis

The claimant asserts that his service-connected PTSD and tinnitus prevent him from securing or following a substantially gainful occupation.

Service connection is currently in effect for PTSD (50 percent disabling); tinnitus (10 percent disabling); and right ear hearing loss (noncompensable).  The combined disability rating is 60 percent.  Thus, the Veteran does not meet the percentage requirements for consideration of a TDIU on a schedular basis.  38 C.F.R. § 4.16(a).  The question remains whether the service-connected disabilities, regardless of age, prevents him from securing and following substantially gainful employment per 38 C.F.R. § 4.16(b).

The Veteran's VA Form 21-8940 reflects that he is a high school graduate.  It further notes that he last worked full time in 2007 as a self-employed painter until he became too disabled to work in 2008.  The Veteran indicated that he worked part time as a painter from 2009 to 2010.  

In August 2012, the Veteran was afforded a VA audiological examination to determine whether his hearing loss disability and tinnitus rendered him unable to secure and maintain substantially gainful employment.  At the time of the examination, the Veteran reported that he has difficulty hearing and understanding conversation in most situations.  After evaluation of the Veteran, the examiner determined that the claimant's hearing loss disability would certainly impact his ability to understand general conversation and potentially make various responsibilities within any occupation more challenging.  However, with proper amplification, hearing impairment alone will not render the Veteran unemployable.  The examiner further determined that tinnitus did not impact ordinary conditions of daily life, including ability to work.  

The Veteran was afforded a VA examination in October 2012 to determine the impact his service-connected PTSD had on his ability to obtain and follow substantially gainful employment.  The examiner noted that the claimant's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation.  The examiner noted that because he was self-employed, and that he would arrive at jobs late and have anger issues.  The Veteran also had trouble controlling his emotions.  The examiner further noted that that PTSD caused symptoms of anger and mood problems along with motivation problems that interfere with employment.  However, the examiner did not provide an opinion as to whether the Veteran's PTSD prevented him for obtaining and following substantially gainful employment.  

The Veteran was afforded an additional VA examination in November 2012 to determine his employability as impacted by his service-connected PTSD.  The examiner determined that that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity.  The examiner determined that due to the Veteran's symptoms of anxiety, hypervigilance, irritability, lack of concentration and depressed mood, he is likely moderately impaired in a work environment that requires frequent interaction with customers, co-workers or supervisors; that requires the ability to sustain concentration and focus as normally found in most jobs; and in an environment that is fast paced, complex, and/or frequently changing.  He further determined that the Veteran is likely to be mildly impaired in a work environment that requires driving or a rigid adherence to a set work schedule.

The examiner opined that due to a long history of being able to work successfully, even with mild to moderate impairment, the Veteran would be able to maintain successful gainful employment.  The examiner further noted that the Veteran reported more difficulties due to physical complaints and a general statement about trouble dealing with stress.  The examiner determined that while these statements are likely true, they do not prevent him from being able to work in a physical or sedentary environment.  

In an October 2011 statement submitted by a former employer, he noted that he hired the Veteran after he experienced difficulty maintaining a sufficient work load during his later years of working.  The employer noted that the claimant demonstrated difficulty concentrating on various tasks and displayed outbursts of depression and anger with aggressive behavior towards himself and other employees.

After a review of the evidence of record, the Board finds that the Veteran's disability picture does not warrant referral for extraschedular consideration of a TDIU.  In this regard, both the August 2010 VA audiological examiner and the November 2012 VA examiner determined that the Veteran's service-connected disabilities did not render him unable to secure and follow gainful employment.  Moreover, while the evidence suggests that the Veteran's PTSD symptoms cause some occupational impairment, the November 2012 VA examiner opined that the Veteran would be able to maintain successful gainful employment.  Additionally, the examiner indicated that the Veteran reported more difficulties due to non-service connected physical complaints and stress than to his PTSD symptoms.

The Board acknowledges the lay statements of record with respect to the Veteran's PTSD symptoms and their effects on occupational functioning.  While lay persons are competent to provide statements as to observations of PTSD symptoms, the overall weight of the evidence here, including multiple opinions from medical providers, indicates that the symptoms do not preclude gainful employment in this case.  Indeed, even the October 2011 statement from a former employer, which detailed some of the Veteran's difficulties, did not state that the Veteran was unable to perform his job.

In sum, the evidence does not demonstrate that the Veteran's service connected disabilities have rendered him unemployable.  Thus, the Board finds no basis upon which to refer the claim for an extraschedular consideration.

The evidence is against the award of a TDIU.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to a TDIU is denied.



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs