Citation Nr: 1756618 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-05 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This appeal was previously remanded by the Board and is now ready for adjudication. This appeal is comprised of paper files, documents contained in the Virtual VA paperless claims processing system, and documents contained in the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. In September 2017, the Veteran submitted a statement indicating his interest in filing a service connection claim for hearing loss. The Board has construed this statement as an informal claim. The claim is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The Board acknowledges the Veteran's September 2017 request that the Board stay his TDIU appeal until his hearing loss claim is processed. However, if the Board agreed to the request, the TDIU claim would be deferred indefinitely as it is unclear if and when the Veteran's hearing loss claim will receive a positive adjudication. As a result, the Veteran's request is denied, but the Board encourages the Veteran to reapply for a TDIU in the future if he believes it is warranted. FINDING OF FACT The evidence does not indicate that the Veteran is unemployable due to his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). This appeal was remanded by the Board in June 2017 in order for VA to request records from the Veteran's former employer. As a result of previous fact finding, VA had determined that the records were located at the National Personnel Records Center. VA received the records and attached them to the claims file in July 2017. Thus, the Board is now satisfied there has been substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records as well as VA examinations are associated with the claims file. The Board acknowledges that during his October 2016 VA examination, the Veteran indicated that he visited a local psychologist for counseling for 2 to 3 years at one point. However, VA has previously requested that the Veteran complete a form to enable VA to obtain any additional treatment records, but the Veteran has not submitted the form. Additionally, in April 2017, the Veteran, through his representative, signed a form stating that they do not have any additional evidence to submit. Therefore, VA has met its duty to assist with respect to obtaining pertinent evidence. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. TDIU In August 2013, the Board determined that the issue of TDIU had been raised by the record. The Veteran indicated during his VA examinations that he had recently stopped working as a nuclear engineering technician at least in part due to his mental health disability. In a March 2014 form, the Veteran indicated that his last date of employment was April 2, 1993. 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. 38 C.F.R. § 3.340(a)(1) (2017). A total disability rating for compensation purposes may be assigned on the basis of "individual unemployability," or 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. 38 C.F.R. § 4.16(a) (2017). In such an instance, 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, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to C&P for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In all cases, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b) (2017). In this case, the Veteran is service-connected for posttraumatic stress disorder with alcohol abuse. He is assigned a 50 percent rating since February 9, 2004. His combined disability rating is not at least 70 percent, and he does not have a single disability of 60 percent or more. Therefore, the requirements under 38 C.F.R. § 4.16(a) have not been met. Regardless, however, of whether the percentage requirements of 38 C.F.R. § 4.16(a) are met, entitlement to a TDIU on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In this instance, the RO chose not to refer the Veteran's TDIU claim for extraschedular consideration. Therefore, the question is ultimately whether the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service connected disability. However, TDIU is not warranted on this basis. The Veteran has extensive experiencing working on submarines and aircraft carriers as both a journeyman pipefitter and later a nuclear engineering technician. He retired from his nuclear engineering technician position with the federal government in 1993. The record does not show that he has sought out other employment, but even if he had experienced some difficulty finding employment, the mere inability to secure employment and the state of being "unemployable" are separate and distinct from one another. The Board finds that the Veteran's PTSD may affect his work performance. However, in the Board's view, the impairment brought on by his disability, when taking into consideration with the Veteran's background, is insufficient to deem him "unemployable" per VA regulations. The Board recognizes that the Veteran suffers from social withdrawal as well as anxiety with panic attacks, and that these symptoms could act to impair his ability to work. Since the beginning of his disability period, he has consistently demonstrated that he eschews socialization, including church or other organized activities. In fact, in a December 2003 evaluation, a licensed psychologist describes his social isolation as his most problematic symptom. Also, the Veteran is known to be easily frustrated. During an April 2004 VA examination, he spoke about getting a part-time job, but decided he would probably get angry at someone and get fired. The Veteran's disposition was confirmed by statements by two family friends who observed that the Veteran holds a lot of anger in that can jump out at the most inappropriate times. However, his social isolation and interpersonal skills later improved. He was married in 2009. During a May 2012 VA examination, he described sending care packages to his grandson, who is a Marine. During an October 2014 VA examination, he reported a close and supportive relationship with his wife. He also described regular get-togethers with two other couples whom he has known for a long time. Despite his limited social interactions, he was judged by the examiner to have normative social skills and the capacity to adapt to a range of interpersonal situations. The Veteran has demonstrated the ability to maintain normal social interactions. Therefore, the Board finds that the Veteran's social isolation is not a complete bar to employment and that he could work in an occupation with limited exposure to others. Such an occupation would also limit the negative effects of the Veteran's noted hypervigilance. Despite the Veteran's PTSD symptoms, he possesses the skills and abilities to participate in the workforce. In December 2003, he was judged to be bright. Even though his immediate recall was below average, he had a fair ability to reconstruct both recent and past events. During a November 2009 VA examination, the examiner observed that there was no impairment of thought process and that the Veteran was good at communicating. He was cooperative and friendly as well as relevant and logical. During an October 2014 VA examination, the examiner described him as having good self-esteem, a defined purpose in life, and being future-oriented. He was also fully capable of managing funds in his own best interest. Such skills would equip the Veteran for the rigors of the workforce. In making its determination, the Board has also taken into account the Veteran's alcohol abuse. As noted previously, the Veteran is service-connected for PTSD with alcohol abuse. In fact, during his October 2016 VA examination, he stated that when offered a choice between starting to take medication and stopping drinking, he chose to continue drinking. Nevertheless, he was able to drive himself to his appointment and arrive on time. He demonstrated good eye contact with normal response latencies and spontaneous speech. Also, he reported that at home, he prepared meals and completed household chores. He managed his activities of daily living independently. The Veteran's ability to thrive at home despite his history of alcohol abuse demonstrates to the Board that he would also be able to thrive at the workplace in spite of his alcohol abuse history. The Board notes that the Veteran has not submitted any medical opinions supporting a finding of unemployability. While such medical opinions are not determinative, they may help the Board understand the limitations placed on the Veteran by his service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). However, in October 2016, the Veteran underwent a VA examination specifically to examine how his disability would affect his ability to work. The examiner noted the Veteran's statement that he had a target of opportunity to leave his job because he did not like to deal with people. However, the Veteran stated that his work performance was very good and that he met the required standards in his evaluations. The examiner opined that it is less likely than not that the Veteran's PTSD posed a significant impairment to his occupational functioning. The examiner mentioned that the Veteran is able to maintain healthy relationships with family and some friends, independently maintain activities of daily living, and regularly engage in leisure activities. The Board agrees with the examiner's well-reasoned opinion that the Veteran is still able to work despite his psychiatric disability. While working, he may experience some occupational impairment resulting from his psychiatric disability, but this is consistent with the 50 percent disability rating he already receives for it. The Board believes that he would still be able to work in a position that limits social interaction. Although the Veteran may not be able to continue his previous career, he may still have the opportunity to work in a position that utilizes the skills he gained from his experience as a nuclear engineering technician. In considering whether TDIU is warranted, the Board has also considered the Veteran's statements that his service-connected disability renders him unemployable. The Board acknowledges the Veteran's argument that his decision to take early retirement not to his benefit, since he received an 18 percent penalty for not reaching the age of 55. However, the Veteran's decision allowed him to start receiving monetary benefits several years earlier than anticipated. The Veteran also asserts that he lost more than 100 days due to his illness. However, the Veteran has not described how exactly his disability caused him to lose more than 100 days of work. Additionally, if the Veteran missed extensive time from work due to his PTSD, the Board would expect there would be some sort of documentation or statements to corroborate these absences. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify to the extent to which his service-connected disability renders him unemployable according to the pertinent VA regulations. Therefore, as the evidence also does not establish that the Veteran is unemployable due to his service connected disability, the appeal is denied ORDER Entitlement to a TDIU is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs