Citation Nr: 1602151 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 07-03 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to January 2001. In a September 2008 decision, the Board, in pertinent part, denied the Veteran's claim for entitlement to TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2010 Memorandum Decision, the Court vacated the Board's decision and remanded the matter to the Board for further action. In October 2010, December 2011, November 2012, and June 2015 the Board remanded the claim for further development. FINDINGS OF FACT 1. Service connection has been established for depressive disorder, not otherwise specified, evaluated as 50 percent disabling; and for chondromalacia, left knee, with Baker's cyst, evaluated as 30 percent disabling. The Veteran's combined service-connected disability rating is 70 percent. 2. The Veteran has an associate degree and worked at Wal-Mart as a fork lift driver until 2006. 3. The objective evidence of record fails to demonstrate that the Veteran's service-connected disabilities are so severe as to preclude all forms of substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16 (2015). REASONS AND BASES FOR FINDINGS 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) (2015). Letters dated in January 2007 and December 2013 satisfied the duty to notify provisions for the TDIU claim, and the claim was subsequently readjudicated, most recently in a September 2015 supplemental statement of the case. 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) (2015). The Veteran's service treatment records have been obtained. Post-service VA treatment records, private treatment records, and records of the Social Security Administration (SSA) have been obtained. The Veteran was provided VA medical examinations in May 2005, December 2006, January 2012, May 2014, September 2014, and August 2015. Taken together, the examination reports are sufficient evidence for deciding the TDIU claim. The examination reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met for this claim. II. TDIU Legal Criteria It is the established policy of VA 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2015). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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, such disability shall be ratable as 60 percent or more and 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. 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. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). 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). The analysis now turns to "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). A layperson is competent to testify in regard to the onset and continuity of symptomatology; however, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. at 498. Evidence The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. The Veteran is service connected for depressive disorder, not otherwise specified, evaluated as 50 percent disabling; and for chondromalacia, left knee, with Baker's cyst, evaluated as 30 percent disabling. His combined service-connected disability rating is 70 percent. In a VA Form 21-8940 completed by the Veteran in June 2015, he reported that he had worked at Walmart from 2002 to 2006 as a fork lift driver. He indicated that he had last worked in 2006 and no longer worked due to his "service connected back and mental health conditions." He indicated that he had two years of college education; on a May 2005 VA examination, the Veteran reported that he was a high school graduate and had an associate degree. A July 2013 SSA disability determination found the Veteran was disabled due to multiple conditions, including severe depression, hypertension, and degenerative arthritis of the back and left knee. Regarding the Veteran's statement on the VA Form 21-8940, and the SSA determination, the Board notes that the Veteran is not service connected for a back disability. In March 2005 a licensed psychologist, L.G., opined that the Veteran's mood disorder severely compromised his ability to initiate or sustain work relationships, and that his problems with concentration and his depressive affect limited his ability to be productive. Ms. G. considered the Veteran permanently and totally disabled and unemployable. Subsequently he was shown to be working during this time. In a report a year later, Ms. G. stated that the Veteran's work attendance was poor for the last 45 days and that he failed to make production for the last 2 months. In her opinion, due to the Veteran's irritability and mood swings, his ability to initiate or sustain work relationships was severely limited. She thought it highly likely that the Veteran would have marked worsening of his depressive symptoms when exposed to the stressors inherent to any work environment, and that due to the longstanding nature of his illness and the severity of his symptoms the prognosis for recovery was poor. Ms. G. considered the Veteran to be permanently and totally disabled and unemployable. In a statement dated in January 2011, Ms. G. stated that "because of his service related knee injury [the Veteran] continues to experience severe Major Depressive Episode symptomatology. His symptoms include depressed mood, chronic insomnia, weight gain, isolating behaviors, feelings of helplessness and hopelessness, and difficulties in concentration. He is currently on anti-depressant medication. He reports that he realizes that the medication is helpful to him but not a cure. I consider him to be permanently and totally disabled and unemployable." In July 2014, Ms. G. stated that "because of his depressive disorder [the Veteran] is severely compromised in his ability to initiate or sustain work relationships. His problems with concentration and depressive affect limit his ability to be productive and to engage in work that requires concentration, memory or decisionmaking. In addition [the Veteran] is severely compromised in his ability to initiate or sustain social relationships. Therefore I consider him permanently and totally disabled and unemployable." A VA psychiatric evaluation in May 2005 noted that the Veteran had some impairment of interpersonal relations, which in all likelihood was related both to his chronic pain and also to his personality type. In the psychiatrist's opinion, while these did affect relationships, from a psychiatric standpoint they did not impact the Veteran to the degree that would render him not capable of gainful employment. A VA psychiatric examination in December 2006 noted that the Veteran quit working in March 2006 but that he had not missed work because of psychiatric symptoms. The psychiatrist commented that the Veteran does have a depressive disorder which results in persistence of a depressed mood, lack of interest, short temper, and decreased energy, which would make employment, either sedentary or active, difficult, but would not, in and of itself, preclude employment. It was the psychiatrist's opinion that the primary limiting health issue concerning the Veteran's employment was his knee disability. It was not shown however, that the knee was so severely disabling as to preclude somewhat more sedentary employment. At a VA joints examination in May 2005, the Veteran reported that his service connected left knee disability did not bother his occupation at work. On a January 2012 VA examination, the examining physician stated that "based on the Veteran's examination today and review of his examinations in the past involving the left knee indicate no chronic current disability significant enough to prevent the Veteran from seeking employment." The examiner noted "objective evidence on examination that the Veteran is able to use the limb to walk but is unwilling to because of reported pain. Although the Veteran protested throughout the examination that he was in severe pain, there was no objective evidence to support it. The decreased range of motion reported is due to the Veteran's desire not to bend the knee "because it hurts." The joint on all previous films between 2001 to present showed no effusion, no arthritis, no osteophytes, and no significant joint space narrowing to explain the Veteran's significant constant pain in the left knee limiting function and preventing him from obtaining and maintaining gainful employment....Examination was normal. He had good muscle tone, normal strength, no sensory deficits. Both knees had no effusion, and no swelling was noted in both lower extremities. He required no assistance to undress or dress himself. He was able to get off and on the exam table unassisted. Veteran would not allow this examiner to manipulate the left knee and actively resisted, again claiming severe pain. When examining both extremities I felt active resistance by the Veteran to manipulate the extremities. Review of orthopedic and PCP notes and CPRs do not document significant loss of function in the joint causing chronic disability." A September 2014 VA examiner opined that the Veteran's left knee disability would not impact his ability to work. A September 2014 VA examination by a licensed psychologist found that the Veteran's "presentation during this evaluation indicates inaccurate self-report and is consistent with malingering. The examiner noted that although individuals who present with inaccurate self-report of symptoms may very well have mental health symptoms that are clinically significant and distressing, that does NOT appear to be the case here. Specifically, the consistent gross misrepresentation of his mental health symptoms since (at least) 2012, the lack of a reliable baseline of mental health symptoms (i.e. it appears he first began to report depressive symptoms and receive mental health treatment shortly before submitting a related compensation and pension claim despite informing his first mental health C&P examiner in 2006 that he started receiving mental health treatment in 2001), and limited information to support ongoing physical pain (based on the current medical C&P evaluation report) leads this examiner to the conclusion that there is no reliable evidence of psychiatric symptomatology associated with knee pain (or any other mental health condition for that matter), and specifically a diagnosis of any type of depressive disorder (previously offered as Depressive Disorder, NOS; Depression Secondary to Degenerative Joint Disease; Major Depression secondary to Degenerative Joint Disease; and Major Depressive Disorder) is ERRONEOUS. The examiner diagnosed malingering. A VA psychiatric examination in August 2015 also resulted in a diagnosis of malingering. The examiner stated that: Malingering is diagnosed because of the intentional production of false or grossly exaggerated physical and/or psychological symptoms motivated by external incentives (obtaining financial compensation.) This is a medicolegal context since this is a disability evaluation on appeal. There is a marked discrepancy between his claimed distress and objective findings and observations and a lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen. He has previously been diagnosed with depression. However, there was no validity testing performed at that time. Furthermore, this is now the fourth mental health evaluation for compensation and pension benefits, this time by a psychiatrist which finds clear and persisting symptom exaggeration. The depression is supposed to be secondary to a knee issue, for which he is service connected. This veteran has repeatedly refused evaluations to better determine the etiology of his knee problem. Most clinicians have viewed his knee functioning as normal. The reason for refusing an MRI scan for his knee is consistent with malingering. The orthopedic doctor has also called it a malingering disorder. He claims to have been consistently taking his antidepressant, citalopram for years. He also reports that he is not depressed "my mood is normal". Blood levels of citalopram taken in 2015 show a blood level of zero. This indicates that he is definitely not taking this medication. This is also consistent with malingering. It is noted that the Veteran has a Depression secondary to medical condition diagnosis from [Ms. G.], MA, his current treating provider. Ms. [G]'s records included in the Veteran's claims file do not indicate that any psychological testing or validated structured interview was conducted to determine a diagnosis. Furthermore, it is noted that Ms. [G] is a master's level clinician. [The Veteran] is not endorsing ever meeting another doctor other than Ms. [G]. It is also noted that Ms. [G] has a [Global Assessment of Functioning (GAF)] of 38 reported for the Veteran. A GAF of 38 is suggestive of someone whom has difficulty with reality testing or difficulty communicating with other people and has major impairments in most areas of life. The Veteran did not describe a level of impairment suggestive of a 38 GAF during the current clinical interview. Lastly, Ms. [G] indicated that the Veteran is permanently disabled and has had total impairment in occupational functioning. However, this completely overlooks the fact that the Veteran has had three extensive mental health evaluations by different doctors, including this psychiatrist, who all conclude that he is malingering. [The Veteran] reported during this 2015 mental health evaluation that he paced all night long. He reported that his knee did not hurt. He reported that his mood was normal. This is inconsistent with his prior reports of unbearable pain and limited functioning. Furthermore, even though he entered the room with a limp, he was observed walking away without any gait abnormality. He also reported that he had someone else drive him here, which was not consistent with staff observation that he drove himself away from the VA parking lot. Pacing all night is inconsistent with someone who is disabled from his knee injuries. [The Veteran] has had an unbelievably extensive series of psychological tests through Comp and Pension, all with the same conclusion of malingering/exaggeration since at least 2012. Not only do these examiners have the same conclusion that Vet is malingering a variety of infrequently known /atypical symptoms, he also endorses significant memory impairment which is not even part of a mood/depressive disorder secondary to ANY degree a pain/physical condition. Some of these test psychological results actually show that he is deliberately choosing the incorrect answer, in an effort to appear more impaired. In terms of social and industrial activities, including employment, [the Veteran] IS NOT VIEWED AS HAVING a depressive disorder due to a medical condition (DSM 5 diagnosis for the previous Dx of Depressive disorder due to a General Medical Condition). Malingering disorder would NOT interfere with his ability to secure and maintain employment; malingering does not rise to the level to render him unemployable. Malingering is considered an ACTIVE CHOICE to portray oneself in a certain light for secondary gain. Veteran's knee injury was described as mild, in the light most favorable to Veteran, in 2000. At ETS he had no symptoms. He had no mental health symptoms at ETS in 2000. This board certified psychiatrist sees NO CAUSAL NEXUS between any claimed mental disorder and the Veteran's knee condition.... Therefore, based on all of the above information, there are no functional effects of the Veteran's service-connected psychiatric disability. In my opinion, it is more likely than not that Veteran's previously diagnosed depression due to medical condition/knee is not a valid diagnosis. Ambulating without evidence of gait impairment, combined with suspected malingering of knee pain, successful treatment of knee pain with Ibuprofen, refusing further assessment of knee evaluation to better determine level of knee functioning, along with his reports to this examiner that he paces all night, indicate that he can perform physical acts required for gainful employment, if he so chooses. Analysis The Board finds the Veteran's assertion that his service-connected disabilities render him unemployable is not credible because the Veteran's account is inconsistent with the objective evidence of record and his own statements. The Veteran has attributed his inability to work to, in part, to a "service connected" back disability, when in fact he is not service connected for a back disability. More importantly, in several of the medical examinations cited above the Veteran subjectively complained of severe symptoms such as knee pain and depression that were not confirmed on objective examination and/or were attributed to malingering. The Board concludes that the Veteran's assertion that he is not employable due to service connected disabilities is not credible given the overwhelming medical evidence that he has been malingering for monetary gain. Similarly, the SSA determination that the Veteran was disabled is based in part on his nonservice connected back disability, and also on the Veteran's own report of severe depression and left knee disability which the Board finds not credible. Thus, the SSA determination is not probative. The statements from Ms. G. regarding the severity of the Veteran's depression and its effect on his ability to work are based on the Veteran's reports of severe depression that have been found not credible. Moreover, as pointed out by the 2015 VA examiner, there was no documentation of any psychiatric testing done by Ms. G. to arrive at any psychiatric diagnosis for the Veteran. As such, Ms. G.'s statements are not credible evidence. The opinions of the VA examiners of record are probative as they reflect familiarity with the entire record and sound reasoning. The January 2012 and September 2014 VA knee examinations include detailed examination findings and conclude that the Veteran's service-connected left knee disability would not preclude employment. The September 2014 and August 2015 VA psychiatric examination reports present a detailed history of the evidence of record and persuasively illustrate the discrepancies between the Veteran's claimed psychiatric and knee symptoms and the objective record. They serve to further undercut the statements of Ms. G. in support of the Veteran's claim as they show the flawed bases for her diagnosis and opinions. The VA examinations of record convincingly show that the Veteran's service connected depression and left knee disabilities, to the extent that they are even present, do not render him unable to secure or follow a substantially gainful occupation. The Board finds that the preponderance of the evidence is against the claim that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Accordingly, the Board concludes that the criteria for a TDIU have not been met. As the preponderance of the evidence is against the claim for a TDIU, there is no doubt to be resolved. ORDER Entitlement to TDIU is denied. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs