Citation Nr: 1753525 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 09-04 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 30, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Army from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter was previously remanded by the Board in July 2012, August 2015, and April 2017 for additional development. FINDING OF FACT The evidence of record does not show that the Veteran's service-connected disabilities precluded substantially gainful employment prior to November 30, 2011. CONCLUSION OF LAW The criteria for a TDIU prior to November 30, 2011 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify was satisfied by letters sent in March 2008 and July 2008. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The evidence of record includes the Veteran's Service Treatment Records (STRs), private treatment records, Social Security Administrations Records (SSAs), private treatment records, VA examinations, and VA treatment records. The Veteran has not referred to any additional, unobtained, relevant, available evidence. The Board acknowledges this case was remanded in April 2017 for the VA to obtain additional records from SSA. In accordance with Stegall, the VA obtained the outstanding records and added them to the file. Stegall v. West, 11 Vet. App. 268 (1998). Thus, all relevant, identified, and available evidence has been obtained. Prior to November 30, 2011, the Veteran received VA examinations for his disabilities in December 2007, February 2008, July 2008, and December 2009. Moreover, the Board acknowledges the case was remanded by the Board in July 2012 and August 2015 for the Veteran to receive a new VA examination and an addendum opinion evaluating the effect his service-connected disabilities had on his employability. The Board finds in accordance with Stegall, the Veteran received subsequent VA examinations. However, as the issue currently before the Board concerns the Veteran's employability prior to November 30, 2011, those subsequent examinations will not be discussed. Therefore, the Board finds the VA's duty to assist has been fulfilled. In December 2015, a retrospective opinion was provided regarding the Veteran's employability. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant 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. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Prior to November 30, 2011, service connection was in effect for posttraumatic stress disorder (PTSD) with mild vascular neurocognitive disorder (PTSD) at 50 percent from March 8, 2007. The Veteran's diabetes mellitus was rated at 20 percent from July 28, 2005. The Veteran's peripheral neuropathy right and left lower extremity were rated at 10 percent each from February 14, 2007 and 20 percent each from October 25, 2012. The Veteran's tinnitus was rated at 10 percent from February 29, 2008, and his bilateral hearing loss and cataracts were rated as noncompensable. The schedular requirements for TDIU were met effective March 8, 2007. The Board notes the Veteran's disabilities were documented in his medical records and VA treatment records. In November 2007, the Veteran submitted a statement indicating that his ability to be active was limited because he was unable to stand, bend over, or walk more than 200 yards. The Veteran also indicated that he had memory problems and a shorter tempter because of his PTSD. In December 2007, the Veteran submitted a statement saying that he was unemployable because of his medical conditions, specifically his nonservice-connected chronic obstructive pulmonary disease (COPD) and his service-connected PTSD. In December 2007, the Veteran received a VA examination for his diabetes mellitus and bilateral lower extremity neuropathy. The examiner noted the Veteran stated that his COPD and PTSD affected his ability to find work in the field of law enforcement; however, the examiner found that his cardiovascular disease was not related to his diabetes. The VA examiner noted there was an effect on his daily activities, but the examiner noted the Veteran stated his edema was the main obstacle to doing things. The VA examiner opined his edema was multifactorial with obesity, COPD, and sleep apnea playing a role. In February 2008, the Veteran received a VA examination for his PTSD. The examiner noted the Veteran worked in law enforcement since 1998, but was laid off from his job when the sheriff he worked under lost an election and a new administration took over. The Veteran told the examiner his PTSD prevented him from finding a new job. He thought that having a diagnosis of PTSD would prevent him from being hired in a law enforcement job. The VA examiner stated the Veteran's symptoms worsened after his lay off, but noted the Veteran's mild level of PTSD resulted in a mild to moderate level of psychosocial impairment. The VA examiner further noted the Veteran had no job-related disciplinary or performance problems. The Veteran's next VA examination was for his diabetes and peripheral neuropathy in July 2008. The examiner noted the Veteran's diabetes mellitus would not cause interference with the Veteran's employment. The examiner found the Veteran's peripheral neuropathy cause mild to moderate interference in an active workplace that required significant amounts of standing or walking, but not in a sedentary work place. The July 2008 VA examination also noted the Veteran's tinnitus would not interfere with employment. While the Board notes the Veteran received a VA examination in December 2009 for his bilateral hearing loss, prior to November 2011, the Veteran's hearing loss was rated as noncompensable. The evidence of record also contains the Veteran's SSA records. SSA considered the Veteran's COPD, PTSD, post-myocardial, depression, obesity and diabetes. SSA concluded the Veteran was disabled because of his multiple conditions. Specifically, SSA noted the Veteran's doctor concluded the Veteran could only lift 5 to 10 pounds with frequent breaks, was unable to walk long distances, and unable to cope with stress. Ultimately, SSA found the demands of the Veteran's past job exceeded his ability to work. The Board notes the Veteran's private doctor submitted an opinion in August 2008 based on the past 20 years of treating the Veteran; the doctor concluded that the Veteran's medical conditions prohibited him from gaining and maintaining substantial gainful employment. In December 2015, a VA examiner provided a retrospective opinion as to whether the Veteran was unemployable prior to October 25, 2015 without consideration of his nonservice-connected disabilities. The examiner stated that his ability to lift/carry, push/pull, bend/twist, kneel/squat/walk, sit/stand/climb, and grasp/grip were severely limited. His ability to reach over his head was mildly limited, his ability to type was moderately limited, and he had to change positions every 15-30 minutes. The Board finds the evidence of record consistently shows the Veteran's unemployability is due to the combination of Veteran's service-connected and non-service-connected conditions. The Veteran's lay statements and SSA records detail how the Veteran's nonservice-connected COPD contributed to the Veteran's shortness of breath and limited his ability to walk. While the Board notes the Veteran's ability to walk is limited by his peripheral neuropathy, the July 2008 examiner noted this limitation was mild to moderate. Furthermore, in the December 2007 VA examination, the examiner noted the Veteran's limitations were mostly caused by the Veteran's edema, a non-service-connected condition related to his obesity, nonservice-connected COPD, and sleep apnea. The Board also considers the Veteran's private doctor's opinion that the Veteran is unemployable. However, the August 2008 doctor's opinion is based on the Veteran's service-connected and non-service-connected conditions. Although the October 2015 opinion notes that the Veteran's service-connected disabilities severely impact his ability to work, the most probative evidence of record shows that his non-service disabilities are significant causes of his unemployability, as discussed above. The Board also considers the Veteran's statement that his PTSD caused his unemployability. The February 2008 examiner noted the Veteran's PTSD caused only a mild to moderate level of impairment. Moreover, though, the Veteran noted that his PTSD led him to be short-tempered and he suffered from memory loss, there was no indication that the Veteran had job-related performance issues. Additionally, the evidence of record suggests the Veteran's former employment was terminated due to an administrative decision, not his medical conditions. The Board notes the Veteran's subsequent treatment records show his PTSD was stable and the Veteran was doing well emotionally. Thus, the Board finds the preponderance of the evidences shows the Veteran's unemployability is due to the combination of all his disabilities, including nonservice-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Therefore, as the preponderance of the evidence is against an award of TDIU prior to November 30, 2011, the benefit of the doubt doctrine is therefore not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990) ORDER Entitlement to a TDIU prior to November 20, 2011 is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs