Citation Nr: 1807058 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-33 229 ) 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) for the period through March 18, 2015. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and T.S. ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1969. The current matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Service connection was granted and an initial rating was assigned for PTSD therein. The Veteran appealed this determination. In May 2013, he and his spouse T.S. testified at a hearing held before the undersigned at the RO. The Board remanded his claim, which was found to encompass not only a higher initial rating for service-connected PTSD but also a TDIU, for additional development in May 2014. Rice v. Shinseki, 22 Vet. App. 447 (2009). In February 2017, the Board dismissed the higher initial rating portion of the Veteran's claim, as he had withdrawn that issue from appellate review. The TDIU portion of his claim was remanded so adjudication could be deferred pending resolution of an inextricably intertwined matter for which he initiated an appeal (propriety of the reduction in the rating for service-connected prostate cancer). Harris v. Derwinski, 1 Vet. App. 180 (1991). A May 2017 rating decision granted a TDIU effective March 19, 2015, in the meantime. Only a TDIU for the period through March 18, 2015, remains on appeal in light of this partially favorable determination. Review of the claims file reveals that adjudication in this regard may proceed at this time, as the appeal of the inextricably intertwined matter was not perfected and does not concern the aforementioned period. FINDING OF FACT The Veteran's only service-connected disability, his PTSD, had a rating of 30 percent and was not of such severity so as to render him unable to secure or follow a substantially gainful occupation during the period through March 18, 2015. CONCLUSION OF LAW The criteria for a TDIU for the period through March 18, 2015, have not been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Notice must be provided of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice of how ratings and effective dates are assigned also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). It must precede initial adjudication or at least be before subsequent adjudication. Pelegrini, 18 Vet. App. at 112. In addition to the duty to notify, VA has a duty to assist a claimant seeking VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary for adjudication. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided full notification in a June 2014 letter, immediately after the Board found a TDIU to be part of his claim. This letter was followed by subsequent adjudication via the September 2015 and May 2017 supplemental statements of the case. Voluminous post-service VA and private treatment records, many of which are pertinent, are available. Also available are statements from individuals who knew the Veteran, to include his spouse T.S. and several coworkers, and information from an employer. In August 2009 and on March 19, 2015, the Veteran underwent pertinent VA medical examinations. Neither the Veteran nor his representative has raised any deficiencies regarding either the duty to notify or the duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that the "obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments" that are not raised); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify). There additionally has been at least substantial compliance with the Board's May 2014 and February 2017 remand directives. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). II. The Merits Total disability means that there is an impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation "provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days" actually worked. Faust v. West, 13 Vet. App. 342 (2000). It does not include positions of marginal employment where annual income does not exceed the poverty threshold or where annual income exceeds this threshold because the employment is in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A TDIU is granted if the claimant is unable to secure or follow a substantially gainful occupation due to service-connected disability rated less than 100 percent. 38 C.F.R. § 4.16(a). Level of education, training, and previous work experience are to be taken into account, but age and the effect of disabilities that are not service-connected cannot be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Pederson v. McDonald, 27 Vet. App. 276 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU may be granted on a schedular basis if there is one service-connected disability rated at 60 percent or more or if there are two or more such disabilities with a combined rating of 70 percent or more and one individually rated at 40 percent or more. 38 C.F.R. § 4.16(a). With respect to the 60 and 40 percent requirements, disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor if applicable, as well as disabilities resulting from common etiology or a single accident, disabilities affecting a single body system, multiple disabilities incurred in action, and multiple disabilities incurred as a prisoner of war are considered as one disability. Id. The 70 percent requirement is derived not by adding together the ratings for all disabilities but by use of a combined ratings table. 38 C.F.R. § 4.25. If a TDIU cannot be granted on a schedular basis, it may be granted on an extraschedular basis if referral first is made to the Director of the Compensation and Pension Service. 38 C.F.R. § 4.16(b); Bagwell v. Brown, 9 Vet. App. 337 (1996). Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Indeed, the discussion below is limited to this evidence as well as that required to address contentions raised by the Veteran, his representative, or the record. Scott, 789 F.3d at 1375; Robinson v. Peake, 21 Vet. App. 545 (2008). When there is an approximate balance of positive and negative evidence on a specific point or overall, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the period through March 18, 2015, the Veteran's only service-connected disability was PTSD, rated at 30 percent. It follows that that aforementioned 40 and 70 percent requirements were not applicable. It also follows that the aforementioned 60 percent requirement, which was applicable, was far from being satisfied. A TDIU accordingly may not be granted on a schedular basis. If warranted, it rather may be granted only on an extraschedular basis. Of note at the outset in this regard is that there has been no referral to the Director of the Compensation and Pension Service. A remand would be required in order to make such a referral. Remands that burden VA without benefitting the Veteran are to be avoided, however. Sabonis v. Brown, 6 Vet. App. 426 (1994); Soyini v. Derwinski, 1 Vet. App. 540 (1991). This would be the situation if the Board remanded to make a referral here. Referral specifically would require VA to expend time and money, both of which are limited resources. The likelihood that referral would be favorable to the Veteran is low. Indeed, the Board finds that his service-connected PTSD was not of sufficient severity to render him unable to secure or follow a substantially gainful occupation for the period through March 18, 2015. The Veteran has reported completing high school and one year of college. He also has reported working full-time for the postal service for over 20 years. He retired on or about April 1, 2010, perceiving retirement to be the better alternative after several years of losing his patience at work. During the remainder of 2010 and 2011, the Veteran had part-time positions at two automotive stores. No information is available about one. The employer for the other indicated that the work was in sales and maintenance, lasted from March to October 2011, resulted in about $5,500 in compensation, included no time lost or concessions made, and terminated because the Veteran's services were no longer needed. From 2011 or 2012 through March 18, 2015, he was self-employed working part-time restoring old cars. His earnings were variously reported as ranging from $800 to $12,000, presumably per year, with up to 6 months time lost per year. During the aforementioned period, the evidence shows that the Veteran manifested many symptoms attributable to his PTSD. He had sleep problems, mental fatigue, lethargy and motivation disturbances, flattened affect, mood disturbances including depression, low self-esteem, fleeting suicidal ideation, anxiety, hypervigilance, irritability and anger, memory impairment, a short attention span, poor frustration tolerance or difficulty adapting to stressful circumstances, mistrust of others, a tendency to withdraw or isolate, and difficulty with relationships. Per the August 2009 VA medical examination, these symptoms led to decreased concentration, difficulty following instructions, increased absenteeism, and poor social interaction at work. A Global Assessment of Functioning (GAF) score of 55 was assigned. The GAF scale is a scale of functioning on a hypothetical continuum of mental health. Richard v. Brown, 9 Vet. App. 266 (1996). Scores from 51 to 60 reflect moderate symptoms or moderate impairment in functioning. A June 2009 private treatment record similarly characterized the Veteran's PTSD as moderate. However, his depression was characterized as severe. By June 2010, VA treatment records were referencing his part-time work. A December 2010 private treatment record conveyed that the Veteran's disability had a very strong negative impact on his life, which includes work. While a March 2011 VA treatment record reveals that he was easily irritated at his part-time job, September 2010 and May 2011 VA treatment record note that things were going well there. In December 2011 statements, the Veteran's coworkers at the postal service recounted that he had problems with management and fellow employees. Shouting matches with supervisors were discussed, as were times when he left a supervisor in tears. Some coworkers expected the Veteran to lose his job. Also in a December 2011 private treatment record, a significant increase in his symptoms was noted. The impact on his life was deemed devastating. A GAF score of 47, signifying serious symptoms or serious impairment in functioning, was assigned. The Veteran reported quitting his part-time job because he got irritated with his coworkers in a January 2012 VA treatment record. In a March 2012 private treatment record, it was determined that team function would be difficult for him because his mind was usually elsewhere. VA treatment records from June 2010 to June 2013 included the assignment of GAF scores ranging from 50 to 65. These scores thus largely signify mild to moderate symptoms and some to moderate impairment in functioning. The March 19, 2015, VA medical examination finally highlighted an exacerbation of the Veteran's symptoms following the death of his spouse in November 2014. He was determined to have moderate to moderately severe functioning deficits due to his symptoms. It was noted that GAF scores were no longer used, but a score in the range of 40-49 largely signifying serious symptoms or serious impairment in functioning as above further was determined to be appropriate for the Veteran. He ultimately was found unable to secure of follow any substantially gainful occupation. The grant of a TDIU for the period beginning as of the date of the examination was based in large part on this finding. For the period through April 1, 2010, the Veteran's full-time employment with the postal service constitutes a substantially gainful occupation. He indeed was able to keep his longstanding job despite the substantial symptoms of his service-connected PTSD and their impact on him. The fears of his coworkers that he would be fired as a result of these symptoms and their impact never was realized, as he instead retired. For the period from April 2, 2010, to March 18, 2015, the Veteran's symptoms and their impact on his occupation continued to be substantial. There is some conflict as to just how substantial, however. VA medical examinations and treatment records, which indicate relatively constant symptoms and their impact, reflect a lesser severity. They essentially found at worst moderate impairment in functioning until November 2014 when the Veteran's spouse died. Private treatment records, in contrast, indicate a continued gradual deterioration of the Veteran's symptoms and their impact. They reflect a greater severity, essentially finding serious impairment in functioning. Equal probative value is accorded to all of the examinations and treatment records. Indeed, all were generated in the context of treating the Veteran (VA and private treatment records) or after a lengthy assessment of him (VA medical examination). No reason has been proffered by the Veteran or his representative, and none is found, to discount any. He thus had moderate to serious functional impairment, to include occupationally. Notwithstanding this, he was able to secure two part-time entry-level jobs as well as self-employment commensurate with his education level and previous work history. All indications further are that he was able to follow both of the jobs in addition to his self-employment. Indeed, the Veteran quit one of his part-time jobs. He cited irritating coworkers as the reason, which is similar to his citing losing his patience as his reason for retiring from the postal service. Unlike with the postal service, however, he did not report getting into any sort of conflicts at work. He also did not report any other trouble. His service-connected PTSD, in sum, played a role in his decision to quit but was not so bad that he would have been fired otherwise. He could have remained employed if he had chosen to, in other words. This finding is bolstered by the Veteran's other part-time job, at which no concessions were made on account of his disability. No conflict or any other trouble was reported in association with it. This position ended only because the Veteran's services were no longer needed. In other words, his service-connected PTSD had nothing to do with his termination. The Veteran finally has not reported conflict or any other trouble in relation to his part-time self-employment. To the extent he argues his part-time jobs and self-employment constitute marginal employment, making a finding is difficult. The applicable poverty threshold, as established by the U.S. Department of Commerce, Bureau of the Census, was just over $14,500 in 2010 (2 people, head of household under 65 years) and just over $11,000 (1 person, over 65 years) in 2015. See https://www.census.gov/data/tables/time-series/demo/ income-poverty/historical-poverty-thresholds.html. Additional information, such as yearly earnings statements and dates of employment for one of the part-time jobs and the Veteran's self-employment, are not available. However, all indications currently are that his income was under or hovered around the applicable poverty threshold. As such, the Veteran's part-time jobs and part-time self-employment shall be presumed to be marginal. They thus do not stand in the way of finding that a TDIU is warranted. Yet having only marginal positions is not the same as being unable to secure and follow a substantially gainful occupation, whether part-time or full-time. The Veteran here functioned adequately despite his moderate to serious occupational impairment in all of his part-time marginal positions. This strongly suggests he also would have functioned adequately in a part-time job that was not marginal or in a full-time job, had he attempted to secure and follow one. Nothing to the contrary exists. To the extent the Veteran argues he became unable to function adequately in a part-time job that was not marginal or in a full-time job upon the death of his wife in November 2014, there is no supporting evidence. The March 19, 2015, VA medical examination indeed is the first date it became factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. Exacerbation of his symptoms and their impact on account of his spouse's death was noted at that time. Importantly, however, no finding was made that he became unemployable as of that time. It is expect that such a finding would have been made, if true, in light of the discussion concerning the Veteran's employability at the examination. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). Additionally, the Veteran reported halting his part-time self-employment because he did not "care for much of that anymore" at the examination. Yet, no greater detail such as when or why was provided. In conclusion, the Veteran was employed in a substantially gainful occupation until April 1, 2010. There is no indication that he was unable to secure or follow such a jobs thereafter even though he did not do so, instead having a series of marginal positions. The preponderance of the available evidence thus is against referral for consideration of an extraschedular TDIU for the period through March 18, 2015. As such, there is no benefit of the doubt to afford to the Veteran. No other issues have been raised by him, his representative, or the evidence. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that the Board is not required to address issues unless they are raised). His claim accordingly is denied without more. ORDER A TDIU for the period through March 18, 2015, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs