Citation Nr: 1751953 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 06-11 034A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) from November 16, 1968 to October 19, 1994. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, which awarded service connection for lumbosacral strain and assigned a noncompensable evaluation from November 16, 1968, through July 2, 1996, and a 40 percent evaluation as of July 3, 1996. The Veteran appealed the evaluations assigned. In a June 2008 decision, the Board granted an initial 10 percent evaluation for chronic lumbosacral strain from November 16, 1968, through July 2, 1996, but denied an evaluation in excess of 10 percent for that time period. The Board also denied an initial evaluation in excess of 40 percent as of July 3, 1996. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 Memorandum Decision, the Court affirmed the part of the Board's decision that denied an initial evaluation in excess of 40 percent for lumbosacral strain as of July 3, 1996, but vacated the part of the decision that denied an initial evaluation in excess of 10 percent prior to July 3, 1996. In October 2011, the Board remanded the claim for additional development and adjudicative action. By a November 2012 decision, the Board denied the increased rating claim for lumbar spine disability from November 16, 1968, through July 2, 1996. The decision also found a TDIU claim from 1968 to 1996 raised with the lumbar spine increased rating claim under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The decision noted that in the rating decision on appeal, the RO awarded service connection for lumbosacral strain with degenerative arthritis and considered the claim pending as of 1968. In reviewing the evidence from 1968 to 1996, the Board found multiple complaints by the Veteran of being unable to work because of his psychiatric disorder and his low back pain. The Board notes that the Veteran is service-connected for PTSD at 100 percent from October 19, 1994 to present. Therefore TDIU is not available after October 19, 1994 for the two service-connected disabilities. (During this time period, the Veteran did not allege that he was unable to work solely due to the lumbosacral strain with degenerative arthritis.) The Board remanded the TDIU claim for further development and it is now again before the Board. All remand instructions have been complete. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions). The Veteran was provided a Board hearing in March 2008 with a Veteran's Law Judge (VLJ) who is no longer at the Board in regard to the increased rating claim for lumbar spine. A September 2017 letter was sent offering the Veteran another hearing and the Veteran did not respond; 30 days has passed giving the Veteran adequate time to respond. Therefore the Board proceeds with the case. FINDING OF FACT The Veteran is not unable to secure or follow a substantially gainful occupation from November 16, 1968 to October 19, 1994 due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). See the August 2012 and January 2013 VCAA letters comply with the requirements. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Board notes that the RO entered an August 2012 formal finding of the unavailability of SSA records, noting all efforts undertaken to acquire SSA records. The Board finds these efforts sufficient. In this case, VA examiner's opinions were obtained as to the Veteran's service-connected disabilities in August 2013 and December 2015. The Board finds the examination reports to be thorough and complete and sufficient upon which to base a decision with regard to a TDIU. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). TDIU Upon review of the record, the Board finds the preponderance of the probative and persuasive evidence is against the claim at any point during the appeal. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). At issue here is entitlement to a TDIU from November 16, 1968 to October 19, 1994. The Veteran is service-connected for PTSD at 50 percent from November 16, 1968 to October 19, 1994, with the exception of July 3, 1969 up until November 1, 1969, for which he is rated 100 percent and TDIU is not considered. The Veteran is rated at 10 percent for lumbar spine disability for the time period under consideration. The Veteran's combined rating for the time period under consideration is 60 percent. Therefore, he does not meet the schedular requirements for entitlement to a TDIU under 38 C.F.R. § 4.16(a). The Board finds no basis to refer the case to the Director, Compensation Service for consideration of TDIU on an extraschedular basis. The November 2012 Board remand requested that the Veteran provide information for the time period between November 1968 to January 1995, including providing his education experience and the additional classes he took under VA's education benefits, and the types of jobs he worked during that time period. The Board noted that the record reflects that the Veteran took multiple education classes through VA's education program. The Veteran did not respond to VA's request for additional information. The remand also requested a VA examination be conducted to answer whether it is at least as likely as not (50 percent probability or greater) that from November 1968 to January 1995 the Veteran was unable to secure and follow substantially gainful employment as a result of the service-connected disabilities, taking into account his education level and work background, but not his age or other non-service connected disabilities. An August 2013 VA examiner's opinion opined upon complete examination of the claims file that his low back condition less likely rendered him unemployable in review of the medical records/notes from November 1968 through January 1995. The examiner indicated that the Veteran had the capability of employment in both physical and sedentary activities. The examiner reported a neurology note from January 21, 1970, showing a normal evaluation with muscle spasm only. A note from July 3, 1969, shows normal sexual activity and back pain that is aggravated by exercise. The examiner cited a note from August 14, 1969 that stated there were no physical findings to explain back pain and that in spite of the back pain the Veteran was observed walking briskly to activities. The examiner reported the remaining records were silent for objective evidence of a worsening back condition. In December 2015, a VA examiner opined that after a complete review of the Veteran's claims folder that it was not possible to provide a yes/no opinion regarding unemployability. The examiner specified at the onset that they did not believe that there is an empirical basis for determining someone's capacity to be employed within a specific historical timeframe because there are too many factors that would go into this estimation, and many of them cannot be known or fully understood 20-40 years after-the-fact. Additionally, the examiner stated to the extent that any such comments or estimations could be made, they would need to be based on objective data from that time. The examiner noted the Veteran had not complied with requests to provide documentation of educational or work histories. Based on a review of the Veteran's Compensation and Pension Evaluations during the time period in question (11/1968-1/1995), the examiner noted it was possible to comment on the impact that the Veteran's psychiatric symptoms, as documented for those time periods, may have had on his ability to function in an occupational setting. The examiner reported the compensation exam from 1969 reflects the presence of nightmares, poor sleep, reduced motivation and anxiety in interpersonal relationships. A medical note from 1972 reflects improved mood and interpersonal relationships. The Board further notes notation that the Veteran worked at that time as a personnel counselor. A 1973 psychiatric evaluation notes that the Veteran was reporting symptoms of nervousness, depression, irritability and being argumentative. The Veteran also reported fatigue. This note indicated that the Veteran had been let go from multiple jobs due to a nervous condition and that irritability impacted relationships at home and socially. The Veteran was diagnosed with "Anxiety Neurosis, Incapacity moderate to marked." In 1976, a psychiatric evaluation again noted that the Veteran was tense, anxious restless, depressed and nervous. The diagnosis at that time was Anxiety Neurosis, Incapacity: Marked. The examiner noted the next report available was from a treatment provider at the Bronx VAMC where the Veteran was receiving treatment for PTSD. The examiner cited that this note states that "[s]ince his service in Viet Nam he has suffered from severe insomnia, frequent intrusive recollections of combat, hypervigilance, exaggerated startle response, emotional blunting, difficulty controlling anger and avoidance of being reminded of his trauma. The symptoms of PTSD have interfered with his ability to hold a job and maintain interpersonal relationships with others." The examiner opined this note indicated that the Veteran's condition had deteriorated over time due symptoms increasing over the previous decade. It indicated that he had been unable to work over the course of the prior year and that his marriage dissolved. It also indicated that he had been reported to have had difficulty in interpersonal relations, difficulty making friends and difficulty tolerating crowds. The examiner also noted an evaluation report from 1993 indicated the Veteran had reported having had "35 or 40" jobs up to that date after returning from Vietnam, with his longest job having been for 2 years in the 1970s. The Board that this same exam reflects that the Veteran was currently employed part-time in telemarketing and living a quiet life with his girlfriend. The examiner noted with respect to the question of the impact of the Veteran's psychiatric symptoms on occupational functioning, it is anticipated that his psychiatric symptoms would have caused impairment in multiple areas of occupational functioning during the time period of 1968-95 based on the report of symptoms reviewed above. Based on the progression of symptoms described above, it is likely that these impairments would have increased over time with the progression of symptoms. The examiner noted first, it is anticipated that the Veteran's psychiatric symptoms would have impaired interpersonal interactions in a work setting. Specifically, irritability or outbursts of anger would likely have alienated others, while apathy, anhedonia, mistrust of others and detachment from others would have reduced natural interest in relating to other people. The examiner opined that restricted range of affect would likely have impaired ability to empathize and appropriately express emotion. Overall, the psychiatric symptoms would be expected to have impaired his ability to work cooperatively and effectively with co-workers, supervisors and the public to a severe extent by 1995. The examiner noted his symptoms would also have been expected to interfere with attention, concentration, memory, and problem-solving in a work setting. Specific symptoms anticipated to impact these capacities include intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of traumatic experiences, avoidance of thoughts or feelings associated with traumatic events, hypervigilance and insomnia related fatigue. The examiner noted overall, his psychiatric symptoms would have been be expected to impair the ability to understand, follow and retain instructions, to communicate effectively in writing and to solve problems in the workplace to a moderate to severe extent, increasing over time as symptoms increased. The examiner reported finally, his symptoms would also be expected to interfere with motivation and drive in a work setting. Specifically, apathy, anhedonia and fatigue would be expected to dampen enthusiasm and decrease motivation. Overall these symptoms would be expected to impair the ability to persevere in work related tasks and to be a reliable employee to a moderate to severe extent, increasing over time as symptoms increased. The examiner noted there would be no difference expected in the impact of psychiatric symptoms on physical versus sedentary employment. Here, the evidence is insufficient to show that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities so as to warrant referral for extraschedular consideration. The Veteran has not provided his work and educational histories, therefore, it is unclear the extent to which the Veteran sustained employment from 1968 to 1994. The evidence of record shows that the Veteran's PTSD in particular has significantly impaired the Veteran's ability to work, however, that impairment is contemplated by his 50 percent rating for PTSD. There is no evidence that establishes that the Veteran was unable to work due to PTSD or lumbar spine disability or the combination of the two disabilities for the period on appeal. The Board acknowledges from the medical evidence of record that the Veteran has exhibited difficulty sustaining employment from November 16, 1968 to October 19, 1994, however, the question in a total rating case based upon individual unemployability due to service-connected disability is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. See Van Hoose (citing 38 C.F.R. §§ 4.1 , 4.15). According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of time working from exacerbations or illnesses proportionate to the severity of the several grades of disability. This is to say, the Board is not disputing the Veteran's PTSD and low back disability cause impairment in his occupational functioning. But this alone is not tantamount to concluding there is marked interference with his employment. Indeed, in Van Hoose, the Court reiterated that the disability rating, itself, is recognition that industrial capabilities are impaired. In light of the above, the Board finds that a preponderance of the evidence demonstrates that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation and, therefore, he is not entitled to referral for a TDIU rating under extraschedular criteria from November 16, 1968 to October 19, 1994. In making its determination, the Board considered the applicability of the benefit of the doubt doctrine. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU rating from November 16, 1968 to October 19, 1994, the doctrine is not applicable in the instant appeal and his claim must be denied. Id. ORDER Entitlement to a TDIU from November 16, 1968 to October 19, 1994 is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs