Citation Nr: 1541096 Decision Date: 09/24/15 Archive Date: 10/02/15 DOCKET NO. 13-20 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1991 to June 1995, May 2003 to January 2004, and December 2005 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction is now with the RO in Providence, Rhode Island. The Veteran testified before the undersigned Veterans Law Judge at a hearing in May 2015. A transcript of the hearing has been associated with the Veteran's claims file. In May 2015, the Board received new, pertinent evidence from the appellant, accompanied by a waiver of review by the agency of original jurisdiction. 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. The Veteran is currently service-connected for posttraumatic stress disorder rate as 70 percent disabling, a right thumb disability rated as 10 percent disabling, and tinnitus rated as 10 percent disabling. The Veteran's combined disability rating is 80 percent. 2. The Veteran has a high school education and has occupational experience working as a police officer. 3. The evidence of record demonstrates that the Veteran is not rendered unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience solely as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim 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 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DCs]," and that the range of disability applied may be between 0 percent and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App.37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Adequate notice was provided in August 2011. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims record; and the Veteran has not contended otherwise. VA has assisted the Veteran in obtaining evidence by obtaining VA medical opinions/examinations in August 2014, May 2013, and September 2011 and affording the Veteran the opportunity to give testimony before the Board. The examination and evidence of record is adequate as they provide all information necessary to decide the claim. Hence, no further notice or assistance to the appellant is required. 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). II. Analysis Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service- connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Where 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. It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Court has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. VA regulations provide that in exceptional cases where the schedular evaluations are found to be inadequate, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). A total rating for compensation purposes based on unemployability will be granted when the evidence shows that the Veteran, by reason of his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341. Here, the Veteran most recently worked as a police officer from 2000 to 2009. He has repeatedly explained that he retired because of a back disability. The record indicates he suffered from a back injury that caused him to stop working. The Veteran is not service-connected for any back condition. However, the Veteran wrote in a statement dated in July 2013 that his "back is not the reason why [he has] not worked since [he] retired from the Police department. It is the fact that [his] PTSD symptoms (anger, irritability, depression, anxiety, and difficulty remembering) have kept me from finding a job..." The Veteran underwent a VA audiology examination in August 2014. The examiner opined that the Veteran's "tinnitus does not prevent him from performing any of his daily activities including his ability to function in an occupational environment nor does it limit his functional abilities in any of his daily activities including his ability to obtain or maintain employment." The Veteran underwent a VA psychiatric examination in May 2013. The examiner opined that while "there is an increase in the frequency and severity of [the] Veteran's PTSD and while these symptoms cause a moderately severe degree of impact on his ability to obtain and maintain gainful employment there is no evidence that he is unable to obtain or maintain employment either physical or sedentary strictly due to PTSD alone." He underwent an earlier VA psychiatric examination in September 2011. He reported that "when he was on the job he would verbally express irritability but his job was never in jeopardy and it did not affect his performance. He would also experience intermittent difficulties with concentration on the job. Hence the Veteran's symptoms have a moderate impact on his ability to obtain or maintain gainful employment whether physical or sedentary." The three examination reports weigh against a TDIU. The examiners do not find that the Veteran cannot find substantially gainful employment. The most recent psychiatric examination specifically finds that the Veteran's PTSD does not bar employment and the audiology examiner also found that the Veteran's tinnitus has no impact on his ability to obtain or maintain employment. Further, VA treatment records do not support a TDIU. For example, there is a May 2014 mental health treatment report that notes that the Veteran "reports he has no structure in his day, misses his job which he is no longer physically able to do. Writer provided education [regarding] his eligibility or VA Vocational Rehabilitation and Employment (VR+E). Writer provided education [regarding] program and examples of how veterans with PTSD have been retrained into gainful employment. [The Veteran] explained he wants to have structure, mission, purpose but unable to conceive of alternative job other than in the field of law enforcement or military which he is no longer able to physically do." The treatment record notes that the Veteran cannot do the physical activity required by his prior profession due to his back, but there is no indication that the Veteran cannot find substantially gainful employment because of his service connected disabilities. In fact, the treatment provider notes attempting to motivate the Veteran to seek out vocational and rehabilitation assistance from VA. The note indicates that the Veteran would rather continue to do the work of a Marine or police officer and chooses to not pursue other options. The Veteran submitted a letter from a county administration official regarding the Veteran's retirement from the police force. The letter indicates that the Veteran "is retired for Accidental Disability, which means he is unable to perform the duties of a police officer. He is allowed to work and earn the difference between his salary as a police officer and the pension he receives plus $15 000 annually." This statement does not offer any evidence that the Veteran is incapable of obtaining or maintaining employment other than as a police officer. The Veteran also submitted a statement from his counseling therapist in May 2015. The therapist wrote the following: The Veteran "has been a client of individual treatment at this U.S. Department of Veteran Affair Vet Center since March 2013... [T]his letter is in support of his request for individual unemployability due to his PTSD and its symptoms. [The Veteran's] PTSD has drastically increased just in the last year to the point he is no longer able to work. [The Veteran] was medically retired from the Police Department in October 2010 but had not worked since August 2009. It is not his medical condition from the police force that makes [the Veteran] unemployable but his inability to concentrate/remember simple appointments and his anger/irritability with dealing with the general population. His PTSD and experiences dominated his adult life. It affects his relationships and his ability to communicate with others. He is constantly getting into arguments with his girlfriend because of his anger and his irritability. The appeal processes has only worsen[ed his] irritability, there has not been a day over the past few years where Iraq and PTSD has not affected his life." Where, as here, conflicting opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). Greater weight may be placed on one clinician's opinion than another's based on the reasoning in the opinions, and whether and to what extent the clinicians reviewed the Veteran's prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the Board finds that the VA examiners and treatment records carry greater probative weight than the Vet Center counselor. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Here, all three examiners and the VA treatment records indicate that the Veteran's service-connected disabilities do not preclude employment. The counselor's opinion is the only medical evidence that indicates that the Veteran's mental health precludes employment. The remainder of the medical evidence indicates that the Veteran is precluded from his prior profession due to back problems and would continue to be employed as a police officer if his back problems did not exist. Further, the Veteran has been encouraged to seek other types of work, which he could physically perform, but has not because he would prefer to be a police officer. The probative value of the medical evidence weighs in favor of a finding that the Veteran could obtain and maintain employment that does not require the physical requirements of being a police officer. Both psychiatric examiners and the May 2014 treatment note indicate the Veteran is not precluded from substantially gainful employment and they each provide a detailed rationale for those opinions. The counseling statement does offer any rationale as to how the Veteran's symptoms render him unable to find employment other than offering a simple assertion of that claim. How his PTSD symptoms specifically impact employment avenues is not addressed by the counselor. When balancing the examination reports and VA treatment records against the counseling statement, the Board finds that the amount and probative value of the medical evidence weighs against a TDIU award. The Veteran submitted two statements from police officers who worked with him prior to 2009. Both statements establish that the Veteran suffered from mental health issues after returning to the job after his deployment. However, the statements do not offer any evidence of why or how the Veteran's mental health impacts his ability of finding employment. The Veteran does not receive disability benefits from the Social Security Administration. He indicated that he filed for benefits from SSA but was denied. Further, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. He may sincerely believe that he is unemployable due to his service-connected disability, but as a lay person, he is not competent to render a medical diagnosis or an opinion concerning unemployability. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Further, the most probative evidence (the VA psychiatric examiner's opinion) indicates that the Veteran is not unemployable due to his service-connected disability. The Board again notes that neither nonservice-connected disabilities nor advancing age may be considered. The other medical evidence does not support a grant of the claim. In sum, the Veteran's contentions and the pertinent evidence of record fail to show that his service-connected disabilities preclude employment. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow all forms of substantially gainful employment consistent with his educational background and occupational experience. Accordingly, the Board concludes that the criteria for a TDIU are not met. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to a TDIU is denied. See 38 U.S.C.A §5107. ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs