Citation Nr: 1817246 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-28 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to a service-connected disability (TDIU). ORDER Entitlement to a TDIU is granted effective July 1, 2017. FINDINGS OF FACT 1. Prior to July 1, 2017, the Veteran was able to maintain employment despite his service-connected posttraumatic stress disorder (PTSD). 2. As of July 1, 2017, the Veteran's service-connected PTSD precludes substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to July 1, 2017, the criteria for an award of a TDIU due to service-connected PTSD were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16 (2017). 2. As of July 1, 2017, the criteria for an award of a TDIU due to service-connected PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2017). This appeal arises from an initial grant of service connection and assignment of a disability rating. When an initial rating appeal comes before the Board following a decision to grant service connection and assign an initial rating, no additional VCAA notice is required. Once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159 (b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3) ). With regard to the duty to assist, the Veteran's pertinent post-service treatment records have been secured. Pursuant to the Board's August 2017 remand decision, the Veteran was also afforded a VA medical examination in December 2017. The Board finds that the examination obtained in December 2017 is adequate. The examination was performed by a qualified medical professional and was predicated on a full physical examination and reading of all available records. The examiner also provided a detailed rationale for the findings rendered. The Board further finds that prior examinations obtained in October 2005, December 2009, and June 2013 are also adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining relevant records and a VA examination, has been met. 38 C.F.R. § 3.159(c)(4) (2017). II. Legal Criteria & Analysis The Veteran served on active duty from November 1967 to September 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent evaluation, effective June 15, 2005. The Veteran timely appealed, challenging the 30 percent rating assigned. Over the course of the appeal, the initial rating assigned for the Veteran's PTSD increased. In an August 2008 rating decision, the RO increased the rating to 50 percent. In a June 2013 rating decision, the RO increased the rating to 70 percent. In a January 2015 decision, the Board granted an initial 70 percent rating for the entire period on appeal. In addition, as relevant here, the Board found that entitlement to a TDIU had been raised by the record, was part and parcel of the initial increased rating claim for the Veteran's PTSD, and was properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded the issue of entitlement to a TDIU for further development. When the matter returned to the Board, in an August 2017 decision, the Board remanded for further development, to include the Veteran completing and returning VA Form 21-8940-a formal request for a TDIU-and affording the Veteran a new VA examination to determine the effect of his service connected PTSD on his ability to secure and follow gainful employment. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2017). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16 (a). Here, the Veteran is service connected for a single service-connected disability (PTSD) and the rating is 60 percent or higher (in this case the rating is 70 percent). As such, the Board will proceed with review of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. At the outset, the Board notes that the Veteran did not complete and return VA Form 21-8940 as ordered in its August 2017 remand. However, the Board also notes that the record contains notices of hospital admission of the Veteran in August 2017 and October 2017 for serious medical conditions. As such, the Board will proceed with review of the claim for a TDIU, based on the evidence of record. An October 2005 VA examination for PTSD also made reference to the Veteran's employment status. The examiner noted that after leaving service, the Veteran worked 12-15 odd jobs for 6 months each; that his relationship with his supervisor and co-workers was poor; that he had problems getting along with others due to his temper; and, that he had conflict with authority. In a March 2009 statement in support of claim, as it relates to his employment status, the Veteran stated, "I continue to have suicidal thoughts and had a plan several weeks ago. I continue to have panic attacks and had to reduce my work hours by more than half. I'm always angry. I am barely able to hang onto my job. My supervisor has counseled me about my anger and how I relate to customers and dispatchers." A December 2009 VA examination for psychiatric conditions also made reference to the Veteran's reported employment status. The Veteran reported he worked for Boeing as an assemblyman for about five years, but quit due to frequent arguments with his fellow employes. He stated that some of them even challenged him to a physical fight as he would just scream in their faces. He then worked for about 12 freight companies loading and unloading trucks. He worked with many different companies because he would quit or was fired due to verbal altercations. He then worked with 20 to 30 different trucking companies, but would not last long in many jobs because of his angry outbursts. As an aside, the examiner also noted that the Veteran was even very upset with a man who was waiting in the examiner's waiting room, claiming that this man was staring at him and was very rude. A June 2013 VA examination for PTSD also made reference to the Veteran's reported employment status. It was noted the Veteran fights at work and works alone. The Veteran testified at a Travel Board hearing in March 2014. As it relates to his employment, the Veteran testified that he was not working full-time and that his hours were going to decrease as well. The Veteran stated he worked as a truck driver and was forgetting to put on the truck's parking brake. Importantly, the Veteran also stated that the psychiatrist he sees for PTSD ordered him to quit his job, and stop working, before he hurts someone or gets hurt by someone. The most recent VA examination, dated in December 2017, was afforded to the Veteran to specifically address his claim for a TDIU, in accordance with the Board's August 2017 remand. The examiner opined that the Veteran has, as a result of his PTSD, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran was fired from his last position in June 2017 where he had worked at a trucking operation but was getting into fights with co-workers; and, that the Veteran sustains himself financially via VA benefits and social security. Of critical importance, the examiner also noted that the Veteran reported active suicidal ideations with intent, with the most recent event about 1 week prior, when the Veteran made a shake and added rat poison to it with the intent to drink it to end his life. Fortunately, he threw the shake away. However, during the VA examination, the Veteran expressed that he still maintains his plan to harm himself, so the examiner contacted the Veterans crisis line as well as the emergency department at the Seattle VAMC. The Veteran agreed to go there for inpatient treatment but did not show. A well visit check was performed by local police at his home, and all poisons from the house were removed. Based on these events, the examiner opined that it is not feasible for the Veteran to pursue employment due to the severity of his PTSD symptoms as he is also depressed, withdrawn and actively suicidal. The examiner specifically stated the Veteran should be considered a current imminent risk which is why the VA crisis line, the Seattle VAMC, and the local police were contacted. Upon review of the record, the Board finds, first, that prior to July 1, 2017, the Veteran consistently reported being employed at least part-time. The Board acknowledges the Veteran's employment situation as described in his October 2005, December 2009, and June 2013 VA examinations, as well as in his March 2009 statement, discussed above. However, as stated above, entitlement to a TDIU only arises where the Veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability. According to the VA examinations and his own statements, the Veteran was able to maintain at least part-time employment prior to July 1, 2017. Furthermore, there is no evidence that the Veteran's work during the period prior to July 1, 2017, was marginal. There is also no evidence indicating that his work prior to that date was in a protected environment or that it afforded him an income below the poverty threshold. While the Veteran expressed credible concerns regarding his ability to maintain his job, he continued to be substantially and gainfully employed prior to July 1, 2017. Therefore, the Board finds that the Veteran's service-connected PTSD was not of such severity as to effectively preclude all forms of substantially gainful employment. As such, the requirements for entitlement to a TDIU were not met prior to July 1, 2017. However, from July 1, 2017, and based on a review of the medical evidence of record, with particular attention paid to the opinion of the December 2017 examiner who opined that the Veteran's current PTSD symptoms are severe and that the Veteran is actively suicidal, the Board finds that the Veteran's service-connected PTSD precludes him from obtaining substantial gainful employment. The examiner noted that the Veteran had lost his job in June 2017 and specifically stated that he should be considered a current imminent risk due to his severe symptoms and suicidal ideations. Clearly, as of July 1, 2017-the first day of the month following his date of last employment-the Veteran's PTSD has rendered him unable to secure or follow a substantially gainful occupation as it would place himself, supervisors, and co-workers in danger of harm. As such, the criteria for an award of a total disability rating based on individual unemployability due to service-connected PTSD have been met from July 1, 2017. Entitlement to a TDIU is warranted as of July 1, 2017. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel Copy mailed to: Disabled American Veterans (DAV) Department of Veterans Affairs