Citation Nr: 1756912 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-08 040A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from February 1967 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD), evaluated as 10 percent disabling. The Veteran appealed the issue of entitlement to an initial evaluation in excess of 10 percent. In a March 2012 rating decision the RO increased the Veteran's initial disability rating for his PTSD from 10 percent to 30 percent. In a March 2015 rating decision, the RO again increased the Veteran's initial disability rating for his PTSD from 30 percent to 50 percent. As these increased awards during the pendency of an appeal did not represent total grants of benefits, the Veteran's claim for an initial increased disability rating remained before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In September 2016, the Board denied a rating in excess of 50 percent for the Veteran's PTSD, and denied a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In June 2017, while his case was pending at the Court, the VA's Office of General Counsel and the Veteran's representative filed a Joint Motion requesting that the Court vacate the Board's September 2016 decision as to the denial of a TDIU. In August 2017, the Court issued an Order vacating the decision portion of the Board's September 2016 decision with respect to the TDIU issue; the Court left the Board's September 2016 denial of an initial evaluation in excess of 50 percent for PTSD undisturbed. FINDINGS OF FACT 1. Service connection is currently in effect for: PTSD, evaluated as 50 percent disabling, tinnitus, evaluated as 10 percent disabling, and bilateral hearing loss, evaluated as noncompensable; the Veteran's combined rating is 60 percent. 2. Factors warranting a referral for TDIU on an extraschedular basis are not present. CONCLUSION OF LAW The criteria for a total disability rating due to individual unemployability (TDIU) on an extraschedular basis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he is entitled a TDIU. It has been argued that he has limited education, no training, and an inconsistent and a diminishing occupational history. His PTSD symptoms include violent outbursts, easily-triggered anger and rage, unpredictable and excessive reactions to normal tasks, an inability to cope with stressful situations, an inability to concentrate, and potentially violent ideation. The Veteran has had a steady decrease in consistent earnings since the early 1990s, and has been unable to find substantially gainful employment since the 1990s. He has been unable to re-renter the workforce for more than 20 years. This inability corresponds with his worsening PTSD symptoms. Since 2006, the Veteran has assisted his son with his hauling and hay business, but his PTSD symptoms keep him from working on more than a sporadic basis. The Veteran's son accepts the Veteran's work as charitable; the Veteran is given duties that are solitary in nature, and that are routine, are low-pressure, do not require high concentration, and that are not stressful. The Veteran is not compensated for this work. See Representative's brief, dated in October 2017. Two lay statements are of record, received in October 2017. The Veteran's spouse essentially states that the Veteran has had violent ideation on at least two occasions since the 1980s, and that she believes that his PTSD prevents him from being able to work. The Veteran's son states that the Veteran has helped him with his business since 2006, driving the pilot car, babysitting the harvest group, and making sure the right trailers get loaded. He does not do any tasks that require him working directly with other people, instead he does more solitary activities. He is quick to anger, and forgetful. The Veteran is not paid, the work he is given is really a way to keep him busy. His work is sporadic, and he is only given simple tasks as he is unable to concentrate on complicated tasks and he cannot interact with workers. He has short-term memory and concentration problems, and frustration and anger problems that make other work impossible. He will ask the same question repeatedly, or go from normal conversation into an agitated story about the war. Although additional evidence has been received since the Board's September 2016 decision, a prospective waiver of RO review is of record. See Veteran's waiver, received in August 2017; 38 C.F.R. § 20.1304 (c) (2017). The relevant administrative history of this claim is as follows: In June 2010, the Veteran filed his claim for service connection for an acquired psychiatric disorder (PTSD). In December 2010, the RO granted service connection for PTSD, evaluated as 10 percent disabling. The Veteran appealed the issue of entitlement to an initial evaluation in excess of 10 percent, and the RO subsequently increased the Veteran's initial disability rating for his PTSD from 10 percent to 30 percent in March 2012, and from 30 percent to 50 percent in March 2015. In September 2016, the Board denied an evaluation in excess of 50 percent, and denied a TDIU. The Veteran appealed to the Court, and while his case was pending at the Court, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the Court vacate the Board's September 2016 decision as to the TDIU issue. The premise of the TDIU was that the Board had not discussed whether the Veteran's employment with his son, for which he is not paid, should be considered marginal employment or a sheltered work environment. At issue is whether the Veteran is entitled to a TDIU. TDIU is assigned when the Veteran is unable to secure and maintain substantially gainful employment due to his service-connected disabilities. 38 C.F.R. § 4.16. Normally in order to meet the criteria for TDIU, the Veteran must have been assigned a single disability rating that is at least 60 percent disability or a single disability rating that is at least 40 percent disabling and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Service-connection is currently in effect for: PTSD evaluated as 50 percent disabling, tinnitus, evaluated as 10 percent disabling, and bilateral hearing loss, evaluated as noncompensable. The Veteran's combined rating is 60 percent Given the foregoing, the Veteran did not meet the percentage requirements of 38 C.F.R. § 4.16 (a) for TDIU, and the claim for a TDIU must be considered under the criteria of 38 C.F.R. § 4.16 (b) (2017). 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 totally disabled. Therefore, rating boards should submit to the Director of the Compensation and Pension Service for consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards of 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b) (2017). Ordinarily, VA's Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91 (1991), 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) than for purposes of a TDIU claim under 38 C.F.R. § 4.16. While 38 C.F.R. § 3.321 (b)(1) requires marked interference with employment, 38 C.F.R. § 4.16 requires evidence of unemployability. Kellar v. Brown, 6 Vet. App. 157 (1994). Although the Board is precluded from initially assigning an extraschedular rating, the Board may review the adjudication of an extraschedular rating once the Director of the Compensation and Pension Service determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009); Floyd v. Brown, 9 Vet. App. 88 (1996). In adjudicating claims for TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a facts found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id.; see also Faust v. West, 13 Vet. App. 342, 355 (2000). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Global assessment of functioning (GAF) scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). The medical evidence was summarized by the Board in its September 2016 decision, and it is largely repeated herein. A report from A.M., Ph.D., dated in June 2010, shows the following: the Veteran reported that he retired from his job in 2006. On examination, the Veteran was friendly and engaging. The Veteran's speech was clear and spontaneous. His concentration was fair. His memory was intact. His affect was restricted with dysphonic mood. The Veteran denied hallucinations and delusions, as well as suicidal ideation, but he reported he did have some suicidal ideation in the past. The Veteran's thought process was logical and goal oriented. His judgment was intact for standard situations. The Veteran reported symptoms of flashbacks, nightmares, explosive anger, and being highly watchful especially at night. The Veteran stated that he had one friend but that he otherwise isolated himself. Beck Depression Inventory test results showed that the Veteran had a score of 19, indicating moderate to severe depression ,with symptoms of sadness, a sense of punishment, a sense of guilt, indecision, insomnia, worry over his physical condition, and lessened libido. The diagnoses were PTSD, major depressive disorder, and polysubstance and alcohol dependence in remission. The Veteran was assigned a GAF score of 56. A VA examination report, dated in September 2010, shows the following: the Veteran's claims file was not available for review. The Veteran described his mood as "crazy." His affect was appropriate to topic and generally pleasant. Eye contact was appropriate. Speech was normal. Thought content was clear, and thought process was goal-directed. The Veteran had good short-term memory, but poor long-term memory. The Veteran reported problems maintaining attention or concentration for a long period of time. The Veteran denied experiencing hallucinations or suicidal or homicidal ideation. There were no ritualistic behaviors other than frequent handwashing, which the examiner noted was not "described as causing any distress to his daily activities." The Veteran denied experiencing panic attacks. He endorsed depression and sleep disturbances. Specifically, the Veteran reported that he was afraid to fall asleep because he experienced nightmares three to four times per week. The Veteran reported low frustration tolerance and stated that he can be verbally aggressive. The examiner categorized the Veteran's reported symptoms as mild. The diagnoses were PTSD, and polysubstance dependence in full remission. The GAF score was 65. A report from Dr. A.M., dated in April 2012, shows the following: the Veteran has been receiving bi-weekly treatment for his PTSD symptoms since May 2010. He has made fair progress in his expression of war experiences, reduction of depression, and understanding his PTSD condition. The Veteran's symptoms include survivor guilt, isolation, protective, sleep disruptions, nightmares, hyper vigilance, and being easily started and sensitive to noise especially at night. The Veteran was friendly in the clinic, but he has urges to confront people in the community. His symptoms have recently been exacerbated by threats from thugs in his community, to include being followed two or three times. On examination, he was oriented in all spheres. Speech was clear and coherent with a slightly loud volume. Concentration was poor. Memory was intact for recent and remote events. Affect is blunted with a depressed mood. Thought process was logical and goal-directed. There were no indications of delusions or hallucinations. He remained suspicious and has difficulty trusting other people. He denied suicidal ideation, but did have thoughts of death with recall of the loss of his friends in combat. His frustration tolerance was limited. Judgment remained fair for standard situations. He experienced intrusive memories, nightmares, flashbacks, and physiological reactions to external cues that resemble the trauma event. He generally distrusted other people and had no friends. He experienced persistent symptoms of arousal with sleep loss, anger, concentration problems, and hypervigilance. The diagnoses were PTSD, major depressive disorder, polysubstance dependence in remission, and alcohol dependence in remission. The Axis V diagnosis was a GAF score of 50. Dr. A.M. concluded that the Veteran has severely-impaired social and occupational functioning, and that he would be unable to maintain employment. A VA PTSD disability benefits questionnaire (DBQ), dated in January 2013, shows the following: the Veteran's claims file and VA medical records had been reviewed. The Veteran has good relationships with his children, grandchildren, and wife. The Veteran stated that he has some friends in his PTSD group, but that he does not otherwise socialize with people. The Veteran reported he was "helping out" at his son's business. The Veteran reported symptoms of dreams and thoughts about Vietnam on a daily basis. The Veteran reported some difficulty at his previous job due to anger, but that he was able to control it. The Veteran reported that he initially had some fights at his job, but that after a year or so he started to get along better, and that, "After awhile he got to where he was in a supervisory role," and that "he was in charge of the whole plant." He was noted to have improved coping skills. The examiner noted that there were no major indications of an increase in symptoms since his last evaluation in September 2010. The Veteran reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and obsessional rituals which interfere with routine activities. The examiner noted the Veteran had occupational and social impairment with reduced reliability and productivity. The GAF score was 65. A VA PTSD DBQ, dated in July 2015, shows the following: the Veteran's VA e-folder (VBMS or Virtual VA) had been reviewed. The Veteran has symptoms that include intrusive disturbing images, reliving, factoring or feeling as if the traumatic event was recurring, persistent avoidance of stimuli associated with the trauma activities, feelings of detachment or estrange from others, and hypervigilance. The Veteran's recurrent, severe major depressive disorder symptoms included depressed mood daily nearly every day for more than two weeks, loss of pleasure or interest, a lack appetite and low energy, and slowed down, psycho-motor agitation. The Veteran also has sleep disturbance, irritability, anger outbursts, difficulty with concentration inability to think and difficulty making decisions overlapped between his PTSD and major depressive disorder. The diagnoses were PTSD and major depressive disorder recurrent, mild. The Board finds that a referral for a TDIU pursuant to 38 C.F.R. § 4.16 (b) is not warranted. It is clear that the Veteran has significant PTSD symptomatology. He has been assigned GAF scores ranging between 50 and 65, which is evidence of mild to severe symptoms. See QRDC DSM-IV. However, a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment; the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose. In September 2016, the Board determined that his symptoms warranted no more than a 50 percent rating, and this aspect of the Board's decision was not disturbed by the Joint Motion, and it has become final. 38 U.S.C. § 7104 (b). A review of the evidence of record does not support the Veteran's contention that his service-connected PTSD prevents him from engaging in gainful employment, nor does it show that factors warranting a referral for TDIU on an extraschedular basis are present. With regard to his history of employment, the Veteran is shown to have worked for the same employer as a heavy equipment operator for about 23 years, until 2006. Notwithstanding substance abuse treatment, he did not receive any mental health treatment during his career. He has reported having some anger problems at work during his first year, but he denied ever receiving an official reprimand for poor work behavior. He has stated that upon his retirement he was in a supervisory role, in charge of "the whole plant." He has further stated that he retired for economic reasons after the company was sold. See e.g., VA examination reports, dated in September 2010 and January 2013. Upon VA examination in January 2013, he reported that he was helping his son with his son's lumber business several hours every other day, and every day during the busy season. There is no evidence of hospitalization for psychiatric symptoms during the time period in issue. Notwithstanding a possible relapse in alcohol use in 1998, it appears that he has abstained from drug and alcohol use since 1991. The Veteran's three VA examination reports dated during the time period in issue show that none of the examiners concluded that the Veteran's service-connected disabilities rendered him unable to secure or follow any substantially gainful employment. The September 2010 VA examination report shows that the Veteran denied any current mental health problems other than a history of drug and alcohol abuse. The examiner characterized the Veteran's PTSD symptoms as "mild." The January 2013 VA examiner indicated that the Veteran's symptoms were productive of no more than a 50 percent rating ("occupational and social impairment with reduced reliability and productivity"). See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The July 2015 VA examiner indicated that the Veteran's symptoms were productive of no more than a 10 percent rating ("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, or symptoms controlled by medication"). Id. Given the foregoing, the Board finds that the evidence of record is insufficient to show that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disability, and that the claim must be denied. In reaching this decision, the Board has considered the language in the Joint Motion, and the conclusion of Dr. A.M., that the Veteran is unemployable due to his PTSD symptoms. The Joint Motion shows that it was agreed that the Board had failed to discuss whether the Veteran's work with his son's company, where he receives no financial compensation, consists of marginal employment on a facts found basis. With regard to Dr. A.M.'s opinion, this evidence has been afforded reduced probative value, as it is not shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history, nor is it accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Dr. A.M. does not specifically discuss how the Veteran's symptoms impact his occupational functioning to the extent that he is rendered unemployable. See e.g., January 2013 VA examination report (in which the examiner noted that Dr. A.M. stated that the Veteran was unemployable, but that, "[He] did not include a discussion of the Veteran's routine activities or employment history"). Dr. A.M. also did not address the Veteran's nonservice-connected disabilities, which include bilateral knee replacement surgeries between 2005 and 2006, and chronic obstructive pulmonary disease. See e.g., VA progress note, dated in March 2010. Furthermore, although Dr. A.M.'s reports were of record and are presumed to have been reviewed by the January 2013 and July 2015 VA examiners, neither of the VA examiners concluded that the Veteran was unable to sustain gainful employment due to his PTSD symptoms. The Board finds that these VA examination reports are more recent and probative evidence that outweigh Dr. A.M.'s opinion as to the Veteran's employability. Boggs v. West, 11 Vet. App. 334, 344 (1998) (holding that the Board may adjudge a more recent medical opinion to have greater probative value, particularly where the subsequent examiner had additional evidence available in rendering the opinion). To the extent that it has been argued that the Veteran's work for his son indicates that he is not capable of more than marginal employment, the Board has considered these assertions, to include the lay statement from the Veteran's son. However, the Board notes that the Veteran's son's statement was received in October 2017, well after the Veteran's VA examination statements were recorded, and that the Veteran's reported history in those examination reports significantly differs from his son's statement. For example, the VA examination reports show that the Veteran has reported the following: he worked for the same employer for 23 years, until 2006. He retired from a supervisory position for economic reasons; he did not have a history of reprimands at his job. He helps his son at his son's lumber company, "driving, [and] helping his son manage employees (catching them drinking)." He will go down in the morning "to make sure the trucks get out ok." He works several hours every other day, and he goes to work every day during the busy season. Contrary to the October 2017 brief, this evidence does not indicate that the Veteran has "been unable to find substantially gainful employment since the 1990s," or that he has "been unable to re-renter the workforce for more than 20 years," nor does it indicate that he is working on no more than "a sporadic basis," or performing work duties that are only "solitary in nature." Rather, it indicates that he retired while working in a supervisory capacity in 2006, and that he works on a daily to every-other-day basis at his son's business, performing duties that are at least partly supervisory in nature (i.e., getting drivers and their trucks dispatched, and policing employees). He also works as a driver. To the extent that it appears the Veteran is not paid for his work by his son, the January 2013 VA examination report shows that this was voluntary. Specifically, the Veteran reported that he refused to take money from his children, but that sometimes his son would pay for the Veteran and his wife to go stay on the coast. In summary, the Board finds that the evidence is insufficient to show that the Veteran is capable of no more than marginal employment. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). While the JMR focused on whether the job the Veteran was performing was in a sheltered situation, answering this question is ultimately immaterial to the resolution of the claim. Essentially, even if the Veteran's work with his son were considered sheltered, such a finding does not mean that the Veteran cannot obtain or maintain substantially gainful employment, it just means that he is choosing to work with his in his retirement years. As noted, the Veteran stopped working with the oil company for economic reasons. The Veteran is not shown to have met the requirements for a referral for a TDIU pursuant to 38 C.F.R. § 4.16 (b), and the Board finds that the preponderance of the evidence is against a referral for a TDIU on an extra-schedular basis. The claim is denied. The Board acknowledges that the Veteran is competent to report symptoms of his PTSD disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disability according to the appropriate regulation or diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected PTSD disability has been provided by medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the most probative evidence of record and they are accorded greater weight than the Veteran's subjective complaints of increased symptomatology, and the lay statements. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In reaching this decision, the Board considered the benefit- of-the-doubt rule. However, as the preponderance of the evidence is against the appellant's claim, such rule is not for application. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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 treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a personal hearing before the Board and a transcript of the hearing is of record. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes. Additionally, the Veteran has submitted private medical opinions which the Board has also taken into consideration for rating purposes. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. ORDER TDIU, to include the referral for consideration of a TDIU on an extraschedular basis, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs