Citation Nr: 1752814 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-08 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, that denied service connection for PTSD and TDIU. In November 2015, the Board expanded the issue of entitlement to service for PTSD to an acquired psychiatric disorder, to include PTSD, social anxiety/social phobia, and generalized anxiety disorder (GAD) and remanded the issue along with the claim for TDIU. Subsequent to the Board's remand decision, the RO, in an April 2017 rating decision granted service connection for social anxiety disorder (previously claimed and characterized as an acquired psychiatric disability, to include posttraumatic stress disorder, social anxiety/social phobia, and generalized anxiety disorder) as secondary to the service-connected disability of seborrheic dermatitis with some alopecia. Therefore, the award of service connection by the RO is considered a full grant of the benefits sought on appeal, and the psychiatric claim is no longer in appellate status. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). The issue of entitlement to a TDIU remains in appellate status. FINDINGS OF FACT 1. The Veteran was gainfully and substantially employed with the United States Postal Service until March 2002, when he voluntarily retired. 2. The Veteran's service-connected disabilities alone did not preclude him from obtaining and retaining all forms of substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). TDIU - Laws and Analysis A TDIU may be assigned "where the schedular rating is less than total" (emphasis added) 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. 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). 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) (2017). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340 (a)(2) (2017). In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." 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). 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 adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA 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). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the Veteran is service-connected for seborrheic dermatitis with alopecia rated as 60 percent disabling, effective June 30, 2006; social anxiety disorder rated as 10 percent disabling from September 9, 2010, 30 percent disabling from December 3, 2013, and 50 percent disabling from June 11, 2016. His combined schedular rating was 70 percent as of December 3, 2013, and 80 percent from June 11, 2016. Therefore, he met the schedular criteria for a TDIU since December 2013. The question remains however whether the Veteran has been precluded from obtaining and maintaining a substantially gainful occupation as a result of his service-connected disabilities. The Veteran has indicated that he last worked in 2002 when he voluntarily retired as a postal clerk, but states that he became too disabled to work in September 2010 due to PTSD. See Veteran's application for TDIU received in October 2010. The Veteran reported having a high school education. He reported no other training or education. In October 2010, the Veteran underwent a VA compensation examination for PTSD, where the examiner rendered diagnosis of social phobia. The Veteran reported that after his discharge from the military he worked at a few jobs before starting his main career with the United States Postal Service (USPS), where he worked for approximately 30 years until his retirement in March 2002. The examiner indicated that the Veteran's social phobia caused him functional impairment in social and performance situations. In August 2011, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. When he was asked whether his anxiety affected his ability to work, he answered in the affirmative. He then indicated that he retired and when asked if he could go back to work, he noted that he was actually considering to take a leave of absence in 2001 a year prior to his voluntary retirement, but then for financial reasons decided to "stick it out" for another year until he was eligible to retire. When the DRO inquired as to whether those treating the Veteran would say that he could not work due to his anxiety, the Veteran answered "that's hard...hard to say." The DRO noted that the Veteran would be scheduled for additional VA examinations to determine whether he was precluded from working due solely to his service-connected disabilities. In December 2013, the Veteran underwent an additional VA examination for mental disorders, where the examiner rendered a diagnosis of social anxiety leading to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress. It was further noted that the Veteran had difficulties meeting expectations for work performance and had letters in his files for being unable to "do a day's work for a day's pay;" however, the Veteran attributed these letters to physical limitations due to arthritis in his back. He stated that he was under the care of a neurologist for this problem who recommended that he should take frequent rest periods, which resulted in his work efficiency being reduced. He further noted that he received FMLA approval for this condition. Moreover, the Veteran noted that he had stress at work due to his back pain and was not under psychiatric care or on psychiatric medications at the time. He denied any frequent absences or tardiness, but indicated that he "told a couple supervisors off," and was not written up for it. The VA examiner noted that the Veteran's attitude towards seeking employment was that he "was not actively seeking a job," but noted that he would consider returning to the work force if he needed to do so for financial reasons. He reported that he believed that "co-morbid medical conditions limit [his] ability to work, especially his arthritis." The examiner observed that, during the examination, the Veteran did not cite his psychiatric condition as an obstacle towards his ability to obtain and or maintain employment if he decided to return to the workforce. In December 2013, the Veteran also underwent a VA examination to determine the severity of his skin condition disability. The examiner noted that the Veteran's skin conditions did not impact his ability to work and indicated that his "service-connected seborrheic dermatitis [was] stable with minimal symptoms of itching." The examiner concluded that this condition caused no functional impairment. In a November 2014 statement in support of claim, the Veteran indicated that he considered taking a leave of absence from work in 2001, but after realizing what his monthly expenses were at the time, he decided to remain at work until he was able to voluntarily retire. Subsequent to the Board's November 2015 remand, the Veteran underwent an additional VA examination for his mental disorders in June 2016. The examiner confirmed that the Veteran did not meet the criteria for a diagnosis for PTSD, but did meet the criteria for generalized anxiety disorder (GAD) and social anxiety disorder leading to occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran reported that he was still retired and previously worked for USPS. He further reported that he started to feel "really stressed" and wanted to get out. He again indicated that he discussed the possibility of taking a leave of absence, but when he found out he could not do it, he "stuck it out" until he could retire. The examiner indicated that the Veteran reported experiencing some anxiety dealing with people and some arguments with his supervisors stating he had some conflict with the management. He again indicated that he "would sometimes require taking breaks", but identified this was due "more to his back pain than his anxiety." Additionally, the Veteran indicated that his request for FMLA at that time and ultimate decision to retire was prompted by his back pain. The examiner indicated that the Veteran had not worked since his retirement, which at the time was noted as a result of his physical conditions (primarily his osteoarthritis in his back), and despite some anxiety at work, it was "nothing that would map onto his GAD or his Social Anxiety." The examiner concluded that the Veteran's GAD and social anxiety were "likely to minimally impact his work in an environment that requires attention to multiple tasks or frequent interaction with large groups of people." After careful consideration of the record, to include both the lay and medical evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for a TDIU. The evidence, particularly the VA examinations and opinions noted above provided by the mental health and skin examiners align with the lay and medical evidence of record, which show that the Veteran's service-connected disabilities have not prevented him from securing and/or following substantially gainful employment. Rather the record shows that the Veteran voluntarily retired from government employment and at that time, his non service connected back had apparently been a factor in him retiring. Although the Board does not doubt that the Veteran experiences some anxiety; however, the medical evidence shows that the Veteran's service connected psychiatric disability only impacts his ability to work in a minimal way. Moreover, the medical evidence also shows that his service connected skin disorder is stable with minimal symptoms. For these reasons, the preponderance of the evidence is against the Veteran's claim, therefore the benefit-of-the-doubt rule does not apply, and a TDIU is not warranted. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to a TDIU is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs