Citation Nr: 1551161 Decision Date: 12/07/15 Archive Date: 12/16/15 DOCKET NO. 14-27 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected dysthymic disorder with depression and anxiety, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim of entitlement to a TDIU. The Veteran filed a timely notice of disagreement (NOD) in in December 2013. The RO issued a statement of the case (SOC) in July 2014 and the Veteran filed a timely VA Form 9, substantive appeal, in July 2014. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). In October 2015, the Veteran testified before the undersigned at a videoconference Board hearing at the RO. A copy of the transcript has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT The percentage requirements for a TDIU under section 4.16(a) of VA regulations have not been met, and the record evidence does not support a finding that the Veteran's service-connected dysthymic disorder with depression and anxiety preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU due to the service-connected dysthymic disorder with depression and anxiety have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2015). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this appeal, in a March 2013 pre-rating letter, the RO provided notice to the Veteran regarding what was necessary substantiate his claim for TDIU and informed the Veteran of what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The March 2013 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The December 2013 rating decision reflects the initial adjudication of the claim after the issuance of this letter. Hence, the March 2013 letter meets the VCAA's timing of notice requirement. The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment records, service personnel records, VA and private treatment records, reports of VA examinations and the statements from the Veteran and his representative. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in October 2015, the undersigned VLJ identified the issue on appeal, indicated the basis for the RO's denial, and indicated the evidence necessary to substantiate the claim. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the Board hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Moreover, the record fails to show harmful error under Bryant as the development necessary to substantiate the claim was conducted. See Bryant v. Shinseki, 23 Vet. App. 488, 498-99 (2010). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis VA will grant a total rating for compensation purposes based on unemployability (TDIU) when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran is entitled to a TDIU, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As an initial matter, the Board notes that the Veteran is service-connected for dysthymic disorder with depression and anxiety, evaluated as 50 percent disabling. The Veteran's combined total rating for compensation is 50 percent; as such, he currently does not meet the criteria for TDIU under 38 C.F.R. 4.16(a). It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where a Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). Turning to the evidence of record, the Board notes that the Veteran has not been employed throughout the appeal period, and he last worked full time in December 1986, when he was employed by Ford Motor Company. (See March 2013 Application for Increased Compensation Based on Unemployability.) The Veteran also indicated that he last looked for employment in 1986. The Veteran was provided a VA mental status disability benefits questionnaire in November 2013. At that time, the examiner diagnosed the Veteran with chronic, moderate dysthymic disorder with depression, anxiety, and anger. The Veteran reported being active in his church, appeared to have "a lot of energy and a good attitude." The Veteran reported that he completed the 10th grade, but that he did not graduate from high school. The Veteran stated that, after the military he went to work for Ford Motors and then went into the cattle business, where he stayed until retirement. The examiner also noted that the Veteran was hospitalized three times in the 1960s with stress problems; and the Veteran reported symptoms of anxiety, anger, insomnia, and nightmares after the war, where he served in a combat role during World War II. The Veteran reported that he had a hearing with Ford officials regarding his behavior at some point during his employment there and that he went to the hospital because he was "extremely angry, especially if his adversary had never been in the service." He reported poor relationships with his coworkers and his separation documents noted that he had a history of anxiety, which was aggravated by the military service. The examiner noted that the Veteran had been admitted to VA medical center in 1961 for hallucinations and delusions in 1961 for approximately two months. The Veteran also reported receiving counseling at the Choctaw nation, but he denied receiving any medication or treatment at the time of examination. The examiner found that the Veteran had feelings of detachment or estrangement from others and a restricted range of affect. Additionally, the examiner noted that the Veteran had symptoms of irritability or outbursts of anger, hypervigilance, exaggerated started response, depressed mood, anxiety, suspiciousness, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. In his December 2013 Notice of Disagreement, the Veteran stated that he was 91 years old and unable to work. He stated that the cycling of his disability along with his age makes him unemployable. During his October 2015 Board hearing, the Veteran testified that no one will hire him due to his age. The Veteran stated that he was very active in his church. The Veteran also discussed his irritability and anxiety. He reported that he has no computer skills and has done mostly manual labor work in his lifetime. The Veteran went on to discuss some of the problems he has related to his stomach. It was also noted in the record that the Veteran got lost on his way to the hearing, and that a police officer helped him find the hearing. The Veteran appeared to deny seeking current mental health treatment for his depression or anxiety. In this case, the evidence of record does not show that the Veteran's service-connected disability, and specifically, his dysthymic disorder with depression and anxiety, prevent him from securing or following substantially gainful employment consistent with his education and occupational experiences. The Board recognizes that the Veteran claims that his service-connected dysthymic disorder with depression and anxiety prevents him from obtaining and maintaining substantially gainful employment. However, the Board places greater probative weight on the evidence of record that shows that, although the Veteran is no longer employed, he worked for Ford Motor Company until 1986, at which point he went into the cattle business for himself until he retired. The Veteran has consistently reported that his age, coupled with his disabilities, prevents him from working, but as noted above, age may not be a consideration when determining eligibility for a TDIU. While the Board is sympathetic to the limitations the Veteran faces due to his advanced age, the Board is prevented from considering this as a factor leading to the Veteran's unemployability. See 38 C.F.R. § 4.19. The Board also notes that the Veteran testified regarding his stomach issues at his Board hearing; however, as this disability is not service connected, it may not be a factor for consideration of entitlement to a TDIU. As such, the evidence does not support a finding that the Veteran is unable to obtain and maintain substantially gainful employment solely due to his service-connected dysthymic disorder with depression and anxiety. Accordingly, as the preponderance of the evidence is against the claim, the Board determines that the Veteran's service-connected dysthymic disorder with depression and anxiety do not preclude him from securing or following substantially gainful employment consistent with his education and occupational experiences. Therefore, the Veteran's claim for TDIU due to his service-connected dysthymic disorder with depression and anxiety is denied. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). In reaching the above conclusion, the Board has again 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). ORDER Entitlement to a TDIU due to the service-connected dysthymic disorder with depression and anxiety is denied ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs