Citation Nr: 1807146 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-11 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability, to include on an extraschedular basis. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran honorably served on active duty with the United States Army from July 1967 to July 1970. The record reflects that the Veteran was the recipient of the Vietnam Service Medal, among other commendations. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, granting service connection for posttraumatic stress disorder (PTSD) and assigning a noncompensable evaluation (0 percent), effective as of July 31, 2007. In a December 2009 rating decision the Veteran's disability evaluation for his service-connected PTSD was increased to 10 percent, effective as of July 31,2007. The Veteran's PTSD rating was increased to 50 percent, effective as of June 2016, in a June 2016 rating decision. In April 2016, this matter was remanded for additional development, to include referral of the Veteran's claim to the Director of Compensation Service for extraschedular consideration. The claim of entitlement to TDIU benefits was subsequently denied in an August 2017 rating decision. As the aforementioned development was completed in October 2016, this matter has now returned to the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran is presently service-connected for PTSD, rated as 50 percent disabling, and tinnitus, rated as 10 percent disabling, for a combined disability evaluation of 60 percent. 2. The combined impact of the Veteran's service-connected disabilities has not rendered him incapable of obtaining or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Copies of compliant VCAA notices were located in the claim's file. In addition, the Board finds that the duty to assist the claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. A VA examination has been conducted and any necessary opinions obtained. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). After a careful review of the file, 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). Analysis The Veteran contends that he is entitled to TDIU benefits, to include on an extraschedular basis. Specifically, he asserts that the combined impact of his service-connected disabilities, to include his post-traumatic stress disorder, has prevented him from securing and maintaining gainful employment. As a preliminary matter, the Board notes that the evidence of record indicates that the Veteran reported a work history that included installing finishes on pool decks from 2002 to 2010. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Review of the record indicates that the Veteran has been awarded service connection for two conditions. Post-traumatic stress disorder that is evaluated at 50 percent disabling, effective July 31, 2007 and tinnitus evaluated at 10 percent disabling, effective November 15, 2017. The combined evaluation totaled 60 percent beginning on November 15, 2017. As such, the Veteran does not meet the schedular criteria for an award of TDIU benefits under 38 C.F.R. § 4.16(a). However, regulations provide that if the percentage requirements are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321 (b), 4.16(b) (2017). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director of Compensation and Pension Service (DCPS) for extraschedular consideration. Pursuant to a April 2016 Board remand, the Veteran's claim for a TDIU was referred to the DCPS for extraschedular consideration. In a October 2016 administrative opinion, the DCPS concluded that the evidence failed to show that the Veteran's service-connected PTSD rendered him unemployable or that application of rating schedule would be impractical. In support of this conclusion, the Director noted that the April 2016 Board decision determined that the Veteran's PTSD did not meet the criteria for an evaluation in excess of 50 percent disabling at any time during the appeal period. More specifically, the decision specifically indicated that the Veteran's PTSD has not been manifested by occupational and social impairment with deficiencies in most areas or total occupational and social impairment. Further, the opinion noted that a review of the Veteran's psychiatric treatment records does not support the Veteran's contention that his service-connected PTSD prevented him from being able to perform substantially gainful employment in the past or prevents current employment. In consideration of the September 2014 VA examination, the Director noted that the Veteran's symptoms were described as mild to moderate and did not result in total occupational or social impairment. The examiner observed that the Veteran was alert and oriented, with an intact memory. Although cooperative, his mood was depressed and his affect was congruent and irritable. The Veteran's speech, attention, concentration and judgment were deemed normal, intact, or fair. His symptoms were treated with oral medications and outpatient therapy. The Veteran's mental status did not compromise his ability to perform activities of daily living and he denied suicidal or homicidal ideation. There was no evidence that the Veteran had been hospitalized for PTSD or participated in any intensive outpatient treatment programs to treat his PTSD. Although the Veteran reported that he has not worked since 2010, medical evidence does not indicate or suggest that he is unable to work due to PTSD. In analyzing the Veteran's claim on appeal, the Board must consider the central inquiry of "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). However, education, training, and past work experience are relevant to the questions. The Board notes that the Veteran's prior employment history included work installing finishes on pool decks. His former employer is no longer in business. The Veteran's highest level of education is a high school diploma, with no some college noted. "Substantially gainful employment," denotes consideration of "whether a particular job is realistically within the physical and mental capabilities of the claimant." Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). Accordingly, a Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation;" the use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Board notes that in September 2014, the Veteran underwent a VA examination to assess the nature and current severity of his service connected PTSD. The examiner noted the Veteran's level of occupational and social impairment with reduced reliability and productivity. No other mental health diagnoses were rendered and the Veteran had never been diagnoses with a traumatic brain injury. The Veteran's Global Assessment Functioning (GAF) score was 55, which indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Board notes that the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). A GAF of 51-60 reflects "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). In this case, the Veteran's GAF score in October 2009 and July 2014 was 52 and 56 in the September 2014. As the Veteran's symptoms were deemed moderate in nature, the examiner did not conclude that his mental health condition impaired his ability to secure and follow a substantially gainful occupation. In making all determinations, the Board has fully considered all lay assertions of record, to include Veteran's contention that he is unable to unable to work due to his service-connected disabilities. Generally, the Veteran will be deemed competent and credible to describe the impact of his disabilities on his ability to perform employment-related tasks. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377. The Board acknowledges that a December 2017 rating decision granted the Veteran's claim for service connection for tinnitus and assigned an evaluation of 10 percent disabling. As a result of that decision, the combined evaluation of the Veteran's service connected disabilities is 60 percent disabling. On review of the record, the Board finds that a TDIU is not warranted. Pursuant to an April 2016 Board remand decision, the Veteran's claim was referred to the DCS administrative review. In an October 2016 opinion, the DCS concluded that an extra schedular evaluation was not warranted as the evidence failed to show that the Veteran's service connected PTSD prevented him from securing and maintaining substantially gainful employment. In support of the aforementioned conclusion, the opinion noted that the April 2016 Board decision also determined that an evaluation in excess of 50 percent disabling was not warranted for the Veteran's service0-connected PTSD. While the Board is not bound by the DCS determination, in the present case, the Board finds the opinion persuasive. Moreover, in September 2014, the VA examiner described the Veteran's symptoms related to PTSD as moderate and his occupational and social impairment reflected reduced liability and productivity. The examiner's opinion did not indicate that the Veteran's service connected PTSD would limit is ability to follow and maintain substantially gainful employment, to include in his prior profession. Further, upon consideration of the Veteran's GAF scores of 52-56 from October 2009 to September 2014, his condition has been continuously manifested by no worse than moderate symptomology. Therefore, as the combined evaluation of the Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU and his overall disability picture does not reflect exceptional symptoms or reveal that he is unable to work; a TDIU on an extraschedular basis is not warranted. While the Board is sympathetic to the Veteran's subjective belief that his symptoms have rendered him unable to work, the medical evidence does not support his contention. Accordingly, the Board finds that the Veteran's service-connected disabilities, to include PTSD, have not rendered him unemployable and his claim for TDIU must be denied. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a total disability rating based upon individual unemployability, to include on an extraschedular basis is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs