Citation Nr: 1807264 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-25 156A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to May 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In the Veteran's September 2013 notice of disagreement (NOD), he disagreed with the RO's failure to assign a rating of 70 percent for his service-connected PTSD. The RO subsequently assigned a 70 percent rating for the Veteran's service-connected PTSD back to the date his claim was received. As the Veteran was granted the full benefit he requested, this issue is not before the Board. In June 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. FINDINGS OF FACT 1. Service connection has been established for posttraumatic stress disorder (PTSD), rated as 50 percent disabling from May 26, 2011 and 70 percent disabling from November 29, 2012; diplopia, left eye, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; fracture, left first and right second rib, rated as 0 percent disabling; fracture, left orbital bone, left mandibular, and nose, rated as 0 percent disabling; scar, upper left eyelid, cheekbone, and nose, rated as 0 percent disabling; hearing loss, rated as 0 percent disabling; and residuals of jaw fracture, rated as 0 percent disabling. 2. The Veteran did not meet the schedular criteria for TDIU prior to November 29, 2012. From November 29, 2012, the Veteran had one service-connected disability rated at 70 percent with a combined disability rating of 80 percent and met the schedular criteria for TDIU. 3. From November 29, 2012, the Veteran's service-connected disabilities, as likely as not, preclude the Veteran from obtaining or maintaining gainful employment consistent with his educational background and work history. CONCLUSIONS OF LAW 1. Prior to November 29, 2012, the criteria for the assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). 2. From November 29, 2012, resolving all doubt in favor of the Veteran, the criteria for the assignment of a TDIU have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). VA's duty to notify was satisfied by letters in July 2013. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. All relevant facts have been properly developed, and all available evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the claims folder records of the Veteran's VA outpatient treatment. He was also afforded multiple VA examinations, including relevant VA examinations in August 2011, June 2013, and May 2014. These examinations are adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). II. TDIU The Veteran asserts that he is unemployable as a result of his service-connected disabilities. He maintains that the service-connected disabilities of PTSD, rated as 50 percent disabling from May 26, 2011 and 70 percent disabling from November 29, 2012; diplopia, left eye, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; fracture, left first and right second rib, rated as 0 percent disabling; fracture, left orbital bone, left mandibular, and nose, rated as 0 percent disabling; scar of the upper left eyelid, cheekbone, and nose, rated as 0 percent disabling; hearing loss, rated as 0 percent disabling; and residuals of jaw fracture, rated as 0 percent disabling makes it impossible for him to obtain and/or maintain gainful employment. 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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)(1), 4.15. A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In the case of Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Period Prior to November 29, 2012 Prior to November 29, 2012, the schedular criteria for TDIU were not met as the Veteran did not have one disability rated at 40 percent or more and a combined disability rating of 70 percent. The Veteran has not argued that extraschedular consideration for TDIU is warranted for the period prior to November 29, 2012, when the schedular criteria for a TDIU were not met. As Veteran has not argued an extraschedular TDIU is warranted and the record does not raise the issue, the Board is not required to address this issue. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Period From November 29, 2012 The Veteran had a combined rating of 80 percent and a disability rated at 70 percent, thus he meets the schedular threshold percentage criteria for the consideration of a total rating based on individual unemployability due to service-connected disabilities. 38 C.F.R. § 4.16(a). The record reflects that the Veteran's employment includes past work as a Master Journeyman Electrician in an industrial setting. His previous jobs lasted 18 years and 8 years, and he reported to the May 2014 VA examiner that he has a high school education. The Veteran has testified credibly at his hearing that accommodations at his job allowed him to work there for many years. He testified that he was allowed to work by himself, until regulation changes required him to work with another person. He testified that this change impaired his ability to do his job and he was asked to retire. The Veteran's formed employer confirmed in a November 2012 letter that he tried to let the Veteran work by himself and suggested the Veteran retire due to his problems working with others. The Veteran also supplied a letter from a prospective employer written in July 2014 stating that the Veteran could not be hired due to his attitude. A vocational rehabilitation counselor evaluated the Veteran in July 2014 and concluded that the Veteran was not feasible for employment due to his mental health symptoms and functional barriers associated with PTSD. The Board notes the presence of opinions of VA examiners that the Veteran's PTSD does not prevent him from working. However, these VA examiners did not have access to the Veteran's testimony at the June 2017 hearing or the testimony of the Veteran's wife describing the Veteran's symptoms. Moreover, the vocational rehabilitation counselor has greater expertise in evaluating an individual's ability to be employed. Further, the letter from a prospective employer identifying the Veteran's attitude as an impediment to prospective employment is especially probative. The Veteran has a high school education and past work as an electrician. He reported that his prior job now requires interacting closely with his coworkers. He and his wife credibly testified to the challenges he faces interacting with coworkers and the public. The evidence of record from previous and prospective employers confirms that his service-connected PTSD would interfere with his ability to gain and maintain gainful employment. Based on the combination of symptoms associated with his service-connected disabilities, the Board will resolve doubt in the Veteran's favor and conclude entitlement to TDIU is warranted from the date he met the schedular criteria, November 29, 2012. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a TDIU prior to November 29, 2012, is denied. Entitlement to a TDIU from November 29, 2012, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs