Citation Nr: 1609360 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 08-09 251 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1984 to March 1986. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the RO in Seattle, Washington. This case was previously before the Board in July 2014 where the Board remanded the issue on appeal for additional development, including referral to the VA's Director of Compensation and Pension Service, for consideration of TDIU under 38 C.F.R. § 4.16(b) (2015). Thereafter, the appeal was to be readjudicated. The case now returns to the Board after satisfactory completion of the ordered development. As such, the Board finds that there has been substantial compliance with the Board's remand order, and an additional remand to comply with the July 2014 directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (nothing that the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDING OF FACT The Veteran is not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected traumatic brain injury (TBI) residuals. CONCLUSION OF LAW The criteria for TDIU have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. A September 2012 notice letter substantially satisfied the provisions of 38 U.S.C.A. § 5013(a). In this letter, the RO informed the Veteran of the evidence generally needed to support the TDIU claim, what actions were needed to undertake, how VA would assist in developing the claim, and the information required by Dingess. The notice letter specifically included notice that the evidence must show that service connected disabilities prevent one from performing the mental and/or physical tasks required to get or keep substantially gainful employment, as well as the combined rating percentages to be eligible for TDIU. The September 2012 VCAA notice letter also attached a VA Form 21-8940, which solicited specific information needed to substantiate a claim for TDIU. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. Regarding the duty to assist, the Veteran received VA examinations in February 2007, September 2012, and January 2016. The VA examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect that the VA examiners reviewed the record, conducted an in-person examination, and rendered the requested opinions and rationale. All relevant documentation, including VA treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issues on appeal. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above TDIU Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2014). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU Analysis The Veteran seeks a TDIU based on service-connected TBI rated as 70 percent disabling with a combined disability rating of 70 percent from November 18, 2015, 40 percent disabling with a combined disability rating of 40 percent from October 23, 2008, and 10 percent disabling with a combined disability rating of 10 percent from March 20, 1986. Pursuant to the July 2014 Board remand, the appeal for a TDIU was referred to the Director of Compensation and Pension Service for consideration of an evaluation under 38 C.F.R. § 4.16(b). See Bagwell v. Brown, 9 Vet. App. 337 (1996); VAOPGCPREC 6-96. In November 2015, the Director of the VA Compensation Service adjudicated and denied a TDIU under 38 C.F.R. § 4.16(b). Because the appeal for a TDIU under section 4.16(b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities shall be rated totally disabled. The Veteran contends generally that he has been unable to obtain or maintain any form of substantially gainful employment due to service-connected TBI. At a June 2009 RO hearing, the Veteran testified as to not being employed since 1998, and since then, working odd jobs like "pulling weeds," "moving dirt and gravel," and "landscape." See June 2009 hearing transcript p. 6. In a March 2010 statement, the Veteran wrote that the service-connected TBI residuals affected speech and contributed to homelessness. On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran is rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected TBI. The evidence shows post-service TBI injury, that employment ended due to reasons unrelated to the service-connected TBI, and post-service events that affected the Veteran psychologically. A July 2006 VA emergency room treatment note reflects the Veteran was treated for a post-service TBI, which included a fractured skull after being hit on the back of the head with a skateboard. A July 2007 VA treatment note reflects the Veteran reported being employed with Boeing for ten years until being laid off in 1999. The VA examiner noted memory problems. An August 2007 VA treatment note reflects the Veteran reported working until 1999. The VA examiner noted the Veteran expressed a desire to return to work, but "his preoccupation with 9/11 terrorism since 2001" was a "major" barrier. A September 2008 VA treatment note reflects the Veteran reported working as a landscaper. A September 2011 VA treatment note reflects the Veteran reported employment until 1999. During the June 2009 RO hearing, the Veteran testified as to working odd jobs like "pulling weeds," "moving dirt and gravel," and "landscape" after being laid off in 1998. See June 2009 hearing transcript p. 6. During the September 2012 VA examination, the Veteran reported being laid off in 1999, a post-service TBI in 2006 when he was hit on "the back of the skull" by a skateboard, and excessive drinking beginning in 2001 "when the towers came down." The VA examiner noted the service-connected TBI had occurred in 1985, and the post-service TBI resulted in a right parietal skull fracture. The VA examiner also noted objective evidence of mild impairment of memory, mildly impaired judgement, occasionally inappropriate social interaction, the ability to communicate with spoken and written language and to comprehend spoken and written language, and orientation to person, time, place, and situation. The examiner did not find a mental disorder as a residual of the service-connected TBI. The VA examiner in September 2012 assessed that the service-connected TBI residuals (mild cognitive difficulties, impulsivity, anxiousness, and below average concentration) would contribute to difficulty finding employment, but did not preclude some employment and training in structured environments and did not render the Veteran incapable of employment of any kind. The VA examiner reasoned that the Veteran would be expected to have difficulties working in poorly structured environments, and working with people, but was capable of employment. The VA examiner opined that the worsening of cognitive symptoms that occurred after 2001 was not related to the service-connected TBI, but were related to post-service drug and alcohol abuse and/or a non-service-connected mental health condition(s). Social Security Administration disability records received by VA in December 2014 reflect that the SSA found the Veteran was disabled from April 2011 due to non-service-connected functional psychotic and mental disorders, as well as non-service-connected substance addiction disorders. The January 2016 VA examination report reflects the VA examiner noted normal judgment, routinely appropriate social interaction, orientation to person, time, place, and situation, normal motor activity, normal visual spatial orientation, subjective symptoms that do not interfere with work, family, or other close relationships, and/or instrumental activities of daily living, the ability to communicate by spoken and written language and to comprehend spoken and written language, objective evidence of moderate functional impairment, and no neurobehavioral effects. The January 2016 VA examiner opined that the service-connected TBI residuals impacted the ability to work, including the ability to remember directions, follow directions, and forgetting assigned tasks. The weight of lay and medical evidence shows that the Veteran's service-connected TBI has not rendered him unable to obtain (secure) or maintain (follow) substantially gainful employment. The December 2014 SSA decision found the Veteran was unable to work due to non-service-connected functional psychotic and mental disorders, as well as substance addiction disorders. Notably, no clinician has opined that the Veteran is unemployable due to the service-connected TBI, and the evidence of record reflects an intercurrent, non-service-connected post-service TBI, as well as other post-service reasons for occupational impairments, namely, including drug and alcohol abuse and non-service-related psychiatric disorder with post-service events that affected the Veteran psychologically. The September 2012 VA examiner opined that the Veteran was capable of employment, and that the worsening of cognitive and behavioral symptoms was related to non-service-connected drug and alcohol abuse and/or non-service-connected mental health condition(s), and was not related to the service-connected TBI. The January 2016 VA examiner noted that, while the service-connected TBI affected the ability to remember directions, follow directions, and forgetting assigned tasks, the VA examiner did not find that the Veteran was unemployable. Further, the evidence of record, including the Veteran's self-reported work history, reflects employment until being laid off in 1999, and since then, periodic work, including landscaping. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A TDIU is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs