Citation Nr: 1757166 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 12-24 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 4, 2015. REPRESENTATION Appellant represented by: Matthew Wilcut, Esquire WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran had active service from August 1983 to August 1992. This matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs Regional Office (RO). In March 2015, the Veteran and his spouse appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. The appeal was initially developed to include the issue of an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD) and in excess of 10 percent for bilateral knee disabilities. In his August 2012 substantive appeal, VA Form 9, however, the Veteran specifically indicated that he was not appealing all of the issues covered in the June 2012 statement of the case. His argument was limited to the issue of TDIU. The Veteran claimed entitlement to TDIU based on his PTSD, therefore, the matters are inextricably intertwined. In May 2015, the Board remanded both the TDIU and PTSD issues for further development. In September 2016, the RO fully granted the Veteran's claim for an increased rating for PTSD as of March 4, 2015. A schedular 100 percent evaluation was assigned of this date. The RO indicated that this award rendered the matter of TDIU subsequent to this date moot. Because the Veteran argued for TDIU based on his PTSD, the Board will address the matter of TDIU prior to March 4, 2015. There has been substantial compliance with the Board's remand directives and no further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002) (holding that there was no Stegall violation when there has been substantial compliance with the Board's remand order). FINDINGS OF FACT 1. Prior to September 22, 2011, the Veteran is not shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; referral for extra-schedular consideration of TDIU is not indicated. 2. From September 22, 2011, to March 31, 2015, the Veteran's service-connected disabilities, standing alone, are shown to be of such severity as to effectively preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to September 22, 2011, the requirements for TDIU were not met. 38 U.S.C § 1155 (2014); 38 C.F.R. §§ 3.321, 3.340, 4.16 (2017). 2. The requirements for TDIU were met from September 22, 2011, to March 3, 2015. 38 U.S.C § 1155 (2014); 38 C.F.R. §§ 3.321, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2014); 38 C.F.R. §§ 3.159, 3.326(a) (2017). The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by way of letters sent to the Veteran in November 2010 and September 2011. The letters fully addressed all notice elements. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With those letters, the RO effectively satisfied the notice requirements with respect to the issue. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. The notice complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159 . In connection with the claim being decided on appeal, the evidence of record includes the Veteran's service treatment records, VA Rehab & Employment documents, VA treatment records, statements/testimony from the Veteran and his spouse, VA and private examination reports and records provided by the Social Security Administration (SSA). The Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim being adjudicated on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183. (2002). TDIU A total rating for compensation 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. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Where the percentage requirements are not met, entitlement to the 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 employment and educational history. 38 C.F.R.§§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, although appropriate cases must be referred to the Director of the VA Compensation Service for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Factual Background and Analysis VA records show that the Veteran met schedular criteria for TDIU as of September 22, 2011, when his combined rating for service-connected disabilities reached 80 percent, with a rating of 70 percent for PTSD, a 10 percent rating for right knee patellofemoral syndrome, and 10 percent for left knee patellofemoral syndrome, which included a bilateral factor of 1.9 percent. Prior to September 22, 2011, the Veteran's combined rating was 60 percent from October 2010, with a 50 percent rating for PTSD and 10 % for each knee disability with a bilateral factor. The Veteran contends he is eligible to a TDIU as of March 2011, when he became unemployed from his job as a service technician at a cable company. The Veteran was not eligible for a TDIU under the schedule until September 22, 2011. Therefore, the Board must consider whether, under 38 C.F.R. § 4.16(b), there should be a referral to the Director of the VA Compensation Service for consideration of a TDIU rating on an extraschedular basis for the period prior to September 22, 2011. The Veteran's work history includes various unskilled labor and sales positions, and he has a high school education with additional job specific certifications. In January 2011 VA treatment records, the Veteran reported working 80 hours per week. The records indicate that despite having some sleep disturbance, the Veteran appeared "normoactive" and displayed proper impulse control, insight, and judgment during the evaluation. VA Vocational Rehab & Employment (VRE) records dated February 2011 indicate that the Veteran self-reported being capable or working at a less physically active job. He reported the ability to work independently, work well with others, and was a quick learner. Later VRE records indicate the Veteran failed to attend appointments, and his case was never fully processed. The Veteran stopped working in March 2011 due to non-service connected back conditions. SSA documents indicate the Veteran was granted full benefits as of March 2011 due to both service-connected and non-service-connected disabilities. However, there is nothing in the record to indicate that his service-connected disabilities alone rendered the Veteran unemployable at that time. After a review of the record, the Board finds that referral for extraschedular consideration for the period prior to September 22, 2011, is not warranted. Although there is some evidence of the Veteran's limitations during and following his employment termination in March 2011, the majority of VA records prior to September 2011 indicate that the Veteran was well adjusted during that time, and that he was able to perform the activities of daily living, and was not incapable of obtaining or maintaining employment. Next, the Board has considered whether entitlement to a TDIU is warranted from September 22, 2011, at which time the Veteran met the schedular criteria. After a review of the record, the Board finds that assignment of TDIU is warranted from September 22, 2011, to March 3, 2015. The September 22, 2011, VA examination for PTSD found that the Veteran reported neglect of his personal hygiene, trouble falling and staying asleep, obtaining only four hours of broken sleep each night and nightmares 3-4 times per week. The Veteran reported hypervigilance, irritability, outbursts of anger and difficulty concentrating. The examiner found that the Veteran had depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. Additionally, non-VA records of May and June 2012, indicate that the Veteran used knee braces constantly and that his knees were constantly painful. The examiner noted that the Veteran could be standing or walking for at most up to 4 hours in an 8 hour workday, and would not be able to crouch, crawl, or carry more than 10 pounds. The examiner did not opine as to which activities were caused by the Veteran's knee disabilities alone, however, and grouped several conditions together in making that determination. The non-VA examiner in June 2012 found the Veteran's mental health disorders to be "severe," with marked difficulties in maintaining social functioning, moderate restriction of daily living activities and moderate difficulties in maintaining concentration, persistence, or pace. The examiner stated that the Veteran would be capable of unskilled simple, routine, repetitive tasks in a low stress, limited public contact environment for up to two hours of an eight hour day. As mentioned above, the Veteran's work experience was largely sales, unskilled labor, factory work, and a service technician. All of the Veteran's previous job experience required concentration and pace, physical labor, and/or interaction with the public. The Board is cognizant of the fact that the record shows that the Veteran was able to maintain employment until March 2011 when the record shows that non-service-connected disabilities caused him to be placed on disability from his employment, which was eventually severed in November 2011. Nevertheless, in this case, the Veteran has multiple service-connected disabilities, including bilateral knee patellofemoral syndrome. Records indicate that the Veteran has used braces for his knees as early as 2009 and he claims his knee disabilities result in constant pain. While the VA examinations for these disabilities have not been included in the claims file, the Board has taken them into consideration in the determination of the totality of the Veteran's condition. In addition, the Veteran's PTSD causes significant symptoms of anxiety, depression, sleep impairment and hypervigilance. While medical examiners who evaluated each of the Veteran's service-connected disorders have not opined on the effects of the disabilities on the Veteran's employability, taken together, such an examination is not required per se and the evidence of record in this case is sufficient for a determination of employability. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran's service-connected disabilities are found by the Board to prevent him from engaging in substantially gainful employment for the period from September 22, 2011, to March 3, 2015. He meets the schedular criteria for a TDIU rating as of September 22, 2011. See 38 C.F.R. § 4.16(a). The Board finds that the overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran is limited physically, cognitively, and mentally. Entitlement to a TDIU is warranted from September 22, 2011, to March 3, 2015. ORDER Prior to September 22, 2011, entitlement to a TDIU is denied. Entitlement to a TDIU is granted from September 22, 2011, to March 3, 2015, subject to the regulations governing the payment of monetary awards. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs