Citation Nr: 1636157	
Decision Date: 09/15/16    Archive Date: 09/27/16

DOCKET NO.  13-12 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Haddock, Counsel


INTRODUCTION

The Veteran served on active duty from February 1966 to February 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs Regional Office (RO).  This matter was previously before the Board in December 2015, when it was remanded for additional development. 


FINDING OF FACT

The Veteran's service-connected disabilities do not render him unable to obtain and maintain gainful employment, and there are no unusual or exceptional disability factors warranting referral of the Veteran's claim for TDIU for extra-schedular consideration.  


CONCLUSION OF LAW

The criteria for a TDIU have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim.  VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits.  38 U.S.C.A. § 5103(a) (West 2014); Pelegrini v. Principi, 18 Vet. App. 112, (2004).  The timing requirement applies equally to the effective date element of a service connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The Board finds that the Veteran was provided adequate notice in response to his claims.  The record shows that the Veteran was a mailed letter in May 2012 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  The May 2012 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claim. 

The Board also finds the Veteran has been afforded adequate assistance in response to his claims.  His service medical records are of record.  VA Medical Center and private treatment notes have been obtained.  He has been provided appropriate VA examinations.  Neither he nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims.  The Board is also unaware of any outstanding evidence.

Legal Criteria and Analysis

The Veteran asserts that he is unable to obtain and maintain gainful employment as a result of service-connected disabilities, primarily his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder.  

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 as totally disabled.  38 C.F.R. § 4.16 (2015).  

Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment will not be considered substantially gainful employment.  38 C.F.R. § 4.16(a) (2015).

A TDIU may be assigned, if 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16(a) (2015).

The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

A claim for a TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and asks for a TDIU because of subjective factors outside the objective rating.  Vittese v. Brown, 7 Vet. App. 31 (1994).

Service connection is currently in effect for PTSD with major depressive disorder, rated at 50 percent; bilateral hearing loss disability, rated at 20 percent; and tinnitus rated at 10 percent.  The Veteran's combined disability rating is 60 percent.  

Accordingly, the Veteran does not meet the schedular criteria for consideration for the assignment of TDIU.  38 C.F.R. § 4.16(a) (2015).  However, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of the assignment of a TDIU rating.  38 C.F.R. § 4.16(b) (2015).

The evidence of record indicates that the Veteran was employed by the United States Postal Service from 1968 until 2003 and by Johnny Roberts Motors from March 2010 to March 2012 and that he has reported that he left Johnny Roberts Motors as a result of stress and depression which interfered with his ability to do his job.  However, on February 2016 VA examination, the examiner noted that while the Veteran's mental health symptoms impaired his ability to work cooperative and effectively with others and to work with the general public to a moderate extent, and mildly impaired his ability to retain information, communicate effectively and learn new skills; he was still able to work effectively with supervisors and he was able to understand and follow directions, solve mechanical problems, and maintain task persistence.  Further, while the examiner noted that the Veteran's ability to maintain a regular schedule was moderately impaired, his ability to arrive to work on time was not affected.  

As the medical evidence shows that the Veteran is not unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities, and in light of the other evidence, including the Veteran's work history and the relatively moderate nature of his service-connected disorders, the Board finds that there are no unusual or exceptional disability factors warranting referral of the Veteran's claim for TDIU under 38 C.F.R. § 4.16(b).  Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to TDIU is not warranted.  38 U.S.C.A. § 5107(b) (West 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a TDIU is denied.  



____________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs