Citation Nr: 1807915 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 11-33 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis. ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran had active duty for training from November 1988 to March 1989. She also had active duty service from December 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Louis, Missouri, which granted service-connection for post-traumatic stress disorder (PTSD) and assigned a 10 percent rating, effective September 5, 2006. A November 2014 Board decision increased the disability rating to 50 percent, denied entitlement to an earlier effective date, and remanded the TDIU issue. In March 2016, the Board granted an earlier effective date for the appellant's PTSD. That issue is no longer before the Board. The only issue addressed herein is entitlement to an extra-schedular TDIU. FINDING OF FACT The appellant's service-connected PTSD does not render him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU benefits on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 4.71a, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the appellant has not raised any issues with the duty to notify or duty to assist. When an appellant fails to raise procedural arguments, the Board is not required to search the record and address them. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Extra-schedular TDIU The appellant contends that she is entitled to an award of TDIU benefits on an extraschedular basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's service-connected disability does not result in an inability to secure and follow a substantially gainful occupation. As such, the claim must be denied. 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 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 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). In the present case, the Veteran is service-connected for PTSD only, rated at 50 percent disabling. As such, the Veteran does meet the schedular criteria for an award of TDIU benefits under 38 C.F.R. § 4.16. Nonetheless, it is the established policy of the Department of Veterans Affairs 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(b) (2017). Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. In this case, the matter was referred to the Director for extra-schedular consideration in April 2016. In June 2016, the Director rendered an advisory opinion, concluding that an extra-schedular rating was not warranted. The Director noted that the Veteran was first diagnosed with PTSD in September 2006 with a Global Assessment of Functioning (GAF) score of 45-50. 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)). Scores ranging from 41 to 50 illustrate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning. The Director concluded that the totality of evidence on record, and VARO submission, indicated no support for the notion that the Veteran was unemployable under any circumstances nor had the rating schedule been shown to be impractical due to any collective impact. VA examinations indicated that the Veteran's PTSD reduced reliability and productivity. Hospitalizations were shown to be intermittently frequent; however, the severity of the condition remained static as evidence by the GAF findings. 38 C.F.R. 4.130 provided for ample opportunity for an increased evaluation when considering objective findings. As a result of considering all pertinent facts, no evidence exists to indicate that the Veteran's unemployability was due solely to service-connected disabilities. The Director's opinion is not a final determination of the matter. Rather, the Board must review all the evidence in rendering a final determination regarding whether the appellant is entitled to an extra-schedular rating. After reviewing the evidence, the Board agrees with the Director. In her Application for Social Security Administration (SSA) Disability Benefits filed in November 2001, the appellant reported that she suffered from bipolar disorder, borderline personality disorder, alcoholism, GERD and hand tremors which made it impossible to work. SSA Disability App., p. 19 (received April 6, 2015) (emphasis added). In particular, she reported that her anxiety, panic attacks, mood swings, irritability and aggression prevented her from focusing on any project. Id. Further review shows the appellant had at least seven different employers in the four years immediately preceding her SSA benefits application. Id. at 20. During this time, she was employed as a registered nurse with psychiatric facilities or nursing homes, and had a brief stint as an Army recruiter (approximately 8 days). She was either fired or quit from these jobs, according to the appellant. Id. at 19. Crucially, she was not diagnosed with PTSD until September 5, 2006. A January 2016 medical opinion revealed that it was less likely than not that the appellant's PTSD manifested prior to November 7, 2005. According to a February 2010 VA examination report, the Veteran had been hospitalized numerous times for psychiatric reasons, with a total of 12 hospitalizations noted back to 2001. This did not include an additional hospitalization in 2006 in Washington State and a period of hospitalization for GERD (gastroesophageal reflux disease). A number of symptoms were described by the Veteran, including being easily startled, nervous and anxious. She also reported auditory hallucinations and difficulty concentrating. It was noted that the Veteran reported having these symptoms since the age of 18, having displayed symptoms of bipolar disorder since this time. It was noted that the Veteran last worked for a few days in November 2009 and attempted to return to work but left after only a few days due to feeling overwhelmed. The Veteran reported never having been terminated from a previous job but always leaving because she felt stressed or overwhelmed. The examiner concluded that the Veteran would likely have difficulty managing gainful employment due to the amount of stress and anxiety she had when given responsibilities. However, the symptoms of her service-connected PTSD were deemed to be minimal and would likely have little effect on occupational functioning. A GAF score of 70 (due to PTSD) was assigned. GAF scores ranging from 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. The Veteran was afforded an additional VA examination in September 2013. A GAF score of 50 was assigned at this time. The examiner noted that it was possible to differentiate the symptoms attributed to each of the Veteran's psychiatric disabilities and attributed anxiety and traumatic thoughts to the Veteran's PTSD. It was noted that the symptoms that negatively impacted her functioning appeared to be largely related to PTSD rather than bipolar disorder. Nonetheless, the examiner concluded that the Veteran's functional impairment was occupational and social impairment with reduced reliability and productivity. The Veteran was not found to be totally disabled from employment at this time. Rather, she was noted to have difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. Finally, the Veteran was afforded a VA examination in September 2015. Unlike the previous examiner, it was determined that it was not possible to differentiate what symptoms were attributable to each of the Veteran's psychiatric diagnoses. It was noted that the Veteran's bipolar disorder symptoms likely increased her PTSD symptoms, and, as a result, could not be fully differentiated. Also, her alcohol and other substance use disorders were likely a reaction to both PTSD and bipolar symptoms. The Veteran's occupational and social impairment was noted to be an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Again, she was not found to be totally impaired in employment To establish entitlement to TDIU, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The central inquiry in any TDIU determination is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. 38 C.F.R. § 3.340; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The preponderance of the above evidence fails to demonstrate that the Veteran's PTSD, even when considered alongside other psychiatric disabilities as it was done upon examination in September 2015, leaves the Veteran unable to obtain or maintain a substantially gainful occupation. GAF scores tend to suggest that the Veteran's disability results in mild to severe occupational impairment. However, a 50 percent evaluation for PTSD is meant to compensate a Veteran for occupational impairment with reduced reliability due to symptoms such as panic attacks, impaired memory, impaired judgment and difficulty in establishing work relationships. See 38 C.F.R. § 4.130. Furthermore, the record reflects that the Veteran has worked intermittently and is capable of managing her own finances. In summary, the evidence fails to demonstrate that the Veteran's PTSD, which does not meet the severity warranted for TDIU on a schedular basis under 38 C.F.R. § 4.16(a) nonetheless results in an inability to obtain or maintain a substantially gainful occupation. In reaching the above conclusion, the Board has considered the extensive arguments provided by the Veteran's representative in support of her claim. Her representative has noted that the evidence revealed a GAF score of 40 in November 2005. Scores ranging from 31 to 40 represent some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). However, there is no evidence to demonstrate that this score was based solely on the Veteran's service-connected PTSD. Furthermore, subsequent psychiatric examinations refute this score, demonstrating that it is not reflective of a consistent level of disability. Private treatment notes were also cited by the Veteran's representative, including a statement from an ARNP with the initials M.J. noting that "[i]t has become apparent that [the Veteran] is unemployable as a result of illness." The Board finds this statement to be of little probative value. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In the present case, not only did M.J. fail to identify what specific illness resulted in unemployability, but absolutely no rationale, discussion or supporting evidence was provided in M.J.'s two sentence conclusion. Finally, the Board notes that lay statements from individuals purporting to know the Veteran have also been associated with the claims file. A statement from an individual with the initials K.I. describes how the Veteran's PTSD impacts her functionality. However, while the Board has considered this statement, it is of little probative value. The record contains no information to demonstrate that K.I. has the requisite training or expertise to offer a medical opinion as complex as linking specific symptoms to the diagnosis of PTSD. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to TDIU benefits on an extraschedular basis must be denied. ORDER Entitlement to an extra-schedular TDIU is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs