Citation Nr: 1509863 Decision Date: 03/10/15 Archive Date: 03/17/15 DOCKET NO. 12-11 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). Additional evidence has been received since the most recent supplemental statement of the case (SSOC) in August 2012. As the evidence is not pertinent to the TDIU claim, a remand for another SSOC is not necessary. See 38 C.F.R. § 20.1304(c) (2014). In August 2014, the Veteran submitted a new power of attorney for a state veteran service organization (VSO) (seemingly in connection with a different claim) rather than the national VSO listed on the title page. Later, in September 2014, the national VSO continued to advocate for the Veteran with a brief. Because the request to change representation was more than 90 days after the case was certified to the Board, and because no motion for good cause has been submitted, the Board finds that the national VSO remains the representative for this claim. The change in representation is therefore referred to the RO for any future claims. Id. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.16 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). A standard December 2010 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. Post-service VA treatment records have also been obtained. During the pendency of the appeal, the Veteran was provided a VA medical examination in February 2012. The examination, along with the medical opinion, is sufficient evidence for deciding the claim. The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the Veteran's service-connected posttraumatic stress disorder (PTSD) as it relates to his ability to secure or follow a substantially gainful occupation in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. Thus, VA's duty to assist has been met. II. Analysis A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). In this case, service connection has been established for PTSD, evaluated as 30 percent prior to August 13, 2010, and 50 percent thereafter; for tinnitus, evaluated as 10 percent; for scars, bilateral sides of the nose, evaluated as 10 percent; for bilateral hearing loss, evaluated as noncompensable; and for residuals of a gunshot wound to nose, evaluated as noncompensable. The combined disability rating for all service-connected disabilities is 60 percent. 38 C.F.R. § 4.25, 4.26 (2014). Although this combined rating is below the general schedular criteria for multiple disabilities, the schedular criteria for a TDIU are nevertheless met as all the service-connected disabilities were incurred in action with the enemy. See 38 C.F.R. § 4.16(a)(4). The Veteran contends that he is unable to secure or follow a substantially gainful occupation as the result of his service-connected PTSD. In his application for benefits, he stated that he last worked full-time as a truck driver in April 2010 and that he has a high school education. Prior to the claim, the Veteran underwent a VA PTSD examination in January 2009. It was noted that he was easily irritated with others and avoided contact with most people. He worked fulltime as a truck driver. He stated that he was the most senior driver at the trucking company, but that his dependability had suffered due to his psychiatric symptoms which prevented him from making his runs. He experienced intermittent periods of inability to perform his duties as a truck driver, but his employer had worked around this difficulty. It was noted that his functioning was impaired in the social realm and was that he was withdrawn. The Veteran submitted a letter dated in August 2010 from L.N., the Safety Director at the Trucking Company where he was formerly employed. L.N. noted that the Veteran was unable to deal with people in a rational manner. L.N. also noted that the Veteran's anger had become very profound and that he was unable to react in a professional manner when in a stressful situation. It was reported that the Veteran was unable to handle his work duties in a safe manner. L.N. stated that the Veteran should not be driving a commercial motor vehicle and that it was not safe for the Veteran to be in the office and around other employees or customers. The Veteran also submitted a letter dated in August 2010 from R.M, the owner of the Trucking Company. R.N. stated that the Veteran had always had problems coping with people since separation from service. R.N. noted that the Veteran could become angry and aggressive dealing with people and then become depressed and withdrawn. However, due to his unstable coping abilities, driving a commercial motor vehicle, where he dealt with customers on a daily basis, could not be continued. The Veteran underwent another VA PTSD examination in September 2010. It was noted that the Veteran had been laid off from his job two months prior to the examination. He had worked at the company for over 24 years as a driver. The Veteran noted that he suffered from "road rage." He noted that his relationship problems with the owner, who was his ex-wife's brother, may have contributed to his lay-off. He thought that his higher salary and high amount of vacation time was part of the reason for his departure from the company. It was noted that the Veteran's routine behavior, speech and self-care appeared to be unimpaired and that he demonstrated the ability to carry on a normal conversation during the examination. A November 2010 letter from L.N. indicated that due to the medications that the Veteran was taking, and the adverse effects on drowsiness, it was felt that the Veteran was a safety risk on the road as a truck driver. In a January 2011 VA medical opinion, the examiner opined that it was his professional opinion, to a reasonable degree of professional certainty, that the Veteran was able to function in an occupational environment with no significant functional impairment related only to his diagnosed PTSD. It was noted that the Veteran reported working satisfactorily, and had a long history of successful employment until his unexpected release from the trucking company. The examiner reported that the Veteran enjoyed multiple activities. His affect and speech were normal, there was no observed impairment in understanding complex commands during the examination and there was no impairment of short or long term memory. His judgment, insight and abstract thinking skills were within normal limits. The Veteran reported having a good marriage. It was reported that the Veteran was able to establish and maintain effective work and social relationships. The Veteran underwent a VA PTSD examination in February 2012. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform with normal routine behavior, self-care and conversation. It was reported that the Veteran's speech was spontaneous, clear and coherent. His affect was normal. His self-described mood was "not very good." His attention was intact. His thought process and content were unremarkable. Delusions were none apparent and his judgment was sound. His memory was normal. The examiner noted that the Veteran often confused or reported symptoms or conditions which were completely unrelated to his PTSD. The examiner opined that the Veteran was able to function in an occupation environment with no significant functional impairment related to his service-connected PTSD disorder. It was reported that the Veteran's job loss was believed by him to be due to his tenure and relatively high pay and vacation status after years of employment. It was noted that the loss of his job was very distressing to the Veteran. The examiner discussed the Veteran's use of medication for his service-connected PTSD. The examiner stated that the literature was voluminous and growing as to the effectiveness of medications and/or psychotherapy in treating PTSD. Evidence-based treatments were most effective. In addition, medications were recognized as helpful in reducing symptoms commonly associated with PTSD and were typically well-tolerated. The examiner indicated that the Veteran's medications were intended to and should help him get better, not worse, and help him function more effectively. It was noted that the Veteran's medications were unlikely causing debilitating effects as to render him unemployable. While the Veteran is currently unemployed, the VA examination reports show that the Veteran's service-connected PTSD would not prevent him from securing or maintaining a substantially gainful occupation. The opinions were based on the record and included a detailed explanation for the conclusions reached, the Board finds the opinions are entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In addition, VA treatment records detailing his ongoing treatment for his service-connected PTSD disorder have also been associated with the Veteran's claims file. These records do not contain any opinions regarding the effect that the service-connected PTSD disorder has on the Veteran's ability to secure or follow a substantially gainful occupation. There is no competent medical opinion to the contrary. The Veteran has provided lay statements and correspondence from his former employer regarding his employability. However, the Board finds the lay statements to be outweighed by the findings of the VA examiner. Each opinion has concluded that the Veteran is still able to secure or follow a substantially gainful occupation. Given these detailed findings, the Board finds that these opinions outweigh that offered by the Veteran and his former employer. Although the question of whether a TDIU is warranted is not purely medical in nature, the Board finds that the medical opinions are consistent with the remainder of the record, including the Veteran's educational and vocational history. They noted that the Veteran was terminated as a truck driver but there were other circumstances involved, including his high pay and vacation days. The Veteran was able to operate a truck driver for 20 years, which further supports the examiner's opinions. The Board is sympathetic to the Veteran's assertions regarding the impact of his service-connected disabilities, to include PTSD, have on his usual daily activities. Those problems, however, are compensated by his current schedular ratings for the disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while his service-connected disabilities may cause some economic impairment, that also is taken into account in the assigned ratings and the combined 60 percent rating, which contemplates significant impairment in earning capacity. In this case, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from substantially gainful employment. As such, the benefit-of-the-doubt doctrine is not applicable and a TDIU is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER A TDIU is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs