Citation Nr: 18130577 Decision Date: 08/29/18 Archive Date: 08/29/18 DOCKET NO. 15-34 194 DATE: August 29, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The preponderance of the competent and credible evidence of record indicates that the Veteran’s service-connected posttraumatic stress disorder (PTSD) alone does not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to September 1969. Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, to include (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated in March 2015 provided all necessary notification to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA medical records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (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 age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service-connected for only one disability, PTSD, rated 70 percent. Thus, the Veteran meets the schedular criteria for consideration of the assignment of TDIU under 38 C.F.R. § 4.16(a). The crux of the Veteran’s claim is that his service-connected PTSD makes him essentially unemployable, with various manifestations such as irritability, disorientation, and anxiety; as noted on his September 2015 substantive appeal. However, the Board finds that the preponderance of competent medical evidence of record, to include VA psychiatric examinations and opinions, is against a finding that the Veteran’s PTSD is of the severity as to make him unemployable. Therefore, the Board must find that a TDIU is not warranted, and the claim must be denied. During the pendency of the claim for TDIU, VA obtained two VA opinions with regard to whether the Veteran’s PTSD alone, made him unable to obtain or sustain substantially gainful employment, in December 2014 and September 2015. In addition to those opinions, the Veteran was also provided VA examinations for PTSD, in May 2014 and September 2015. In the May 2014 PTSD psychiatric examination, the Veteran’s PTSD was evaluated to encompass symptoms and manifestations such as anxiety, depressed mood, weekly panic attacks, sleep impairment, flattened affect, impairment of memory, irritability, and difficulty establishing relationships. The examiner diagnosed PTSD, and found that PTSD was best contemplated by occupational and social impairment with deficiencies in most areas such as work, school, family relationship, judgment, thinking, and/or mood. That examination is what was used by the RO to establish the Veteran’s 70 percent rating for his PTSD. In a December 2014 VA opinion letter with regard to the Veteran’s claim for TDIU, a VA clinical psychologist explicitly concluded that the Veteran’s PTSD was not of the severity as to prevent the Veteran from obtaining or sustaining substantial employment. The examiner noted that the Veteran’s PTSD symptoms and manifestations had dramatically improved since his initial diagnosis and treatment, specifically noting prior VA medical notes and progress reports, the VA examiner noted improvement in nearly all of the Veteran’s PTSD manifestations, such as sleep, anxiety, intrusive thoughts, and compulsive behavior. As a result, the examiner explicitly found that the Veteran’s sole service-connected disability was less likely than not to be making him unemployable. At a September 2015 VA psychiatric examination, the Veteran stated that he was not currently working and that he had to close his cleaning business because he could no longer handle the physical aspects of the job. On examination, the VA examiner noted that the Veteran no long fulfilled the criteria for PTSD, and only diagnosed the Veteran with no specified trauma and stressor related disorder, with mild alcohol use disorder. Symptoms identified during the examination included anxiety, panic attacks, mild memory loss, and suicidal ideation. The examiner ultimately noted that the Veteran’s psychiatric condition was only productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency or the ability to perform occupational tasks. In an addendum opinion, the same examiner opined that the current state of the Veteran’s psychiatric disability did not make the Veteran unable to obtain or sustain substantially gainful employment. The examiner again noted marked improvement in the Veteran’s psychiatric condition, due to medication or treatment, to include better mood, hobbies, increased social interaction, and even going out with his wife. The examiner noted the Veteran’s own contention that he retired due to the inability to do the physical aspect of his previous job. While the examiner noted remaining symptoms such as some suicidal ideations with some memory issues, the examiner did not fund that those impairments made the Veteran unable to obtain employment. Additional information of record are some letters and lay statements from the Veteran, and his wife. A review of those letters shows only statements made in pursuit of service connection for PTSD, and does not speak specifically, or explicitly, to the actual severity of PTSD, or how PTSD affects the Veteran’s ability to work. In a statement from the Veteran’s wife, she indicated that the Veteran was in fact a “workaholic.” The Veteran filed a VA Form 21-8940 in July 2014, noting only that he was unemployed due to PTSD, and that he was self-employed with a high school education. After reviewing the entire record, the Board concludes that entitlement to TDIU is not warranted. The most probative evidence of record shows that, solely considering the Veteran’s service-connected PTSD, the Veteran is not precluded from gainful employment by his service-connected disability that is consistent with his education, training, and work experience. The Board finds that the evidence does not show anything out of the ordinary, or not average, in the Veteran’s situation as a result of the service-connected PTSD. While the Veteran has noted trouble with physical labor, the Veteran is not service-connected for any disabilities other than PTSD. Therefore, the Board finds that the weight of the probative evidence of record does not indicate that he is unable to perform substantially gainful employment specifically as a result of his service-connected psychiatric disability, with consideration of training and experience, and without consideration of age or nonservice-connected disabilities. The Board has carefully considered earlier May 2014 psychiatric examination, which showed the Veteran’s PTSD at its most severe stage. However, a review of the VA medical records such as psychiatric treatment and counselling sessions surrounding that time, and since that examination, has explicitly demonstrated steady improvement in the Veteran’s condition more akin to the condition described by later examinations and opinions of record. Therefore, the Board finds that subsequent examinations, along with the contemporaneous medical records to be more persuasive than the narrative of that early examination. The Board notes that even that examination report did not explicitly find that the Veteran was unemployable due solely to PTSD, only that PTSD was productive of occupational deficiencies. Therefore, the Board finds the opinion of the December 2014 and September 2015 VA examiners to be highly probative as they explicitly addressed the Veteran’s ability to obtain or sustain employability, as due to his psychiatric disability. While acknowledging that the Veteran has service-connected symptoms such as anxiety, irritability, and panic attacks, the weight of the persuasive evidence of record does not demonstrate that the Veteran’s service-connected PTSD alone is of such severity as to preclude his participation in all forms of substantially gainful employment for which he is qualified. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to TDIU and referral to VA’s Director of Compensation Service is not warranted. The claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel