Citation Nr: 1803345 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 17-03 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) prior to March 16, 2012. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1962 through September 1973. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities precluded him from obtaining and retaining substantially gainful employment prior to March 16, 2012. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to March 16, 2012 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not 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). Entitlement to a TDIU prior to March 16, 2012 In his November 2010 formal application for a TDIU, the Veteran indicated that his disabilities affected his full-time employment beginning May 8, 2008 and that he became too disabled to work on May 8, 2009. He indicated he was not able to work an eight-hour job or any sort of gainful employment including writing reports due to shaking hands and other symptoms of posttraumatic stress disorder (PTSD), ischemic a heart disease, and a left elbow injury. While the Veteran's claim for a TDIU was not granted, the Veteran has been found to be 100 percent disabled as of March 16, 2012 due to his service-connected disabilities, and he was awarded special monthly compensation under 38 U.S.C. § 1114(s) as of March 16, 2012 as well. See, e.g., September 2014 rating decision. The monetary benefits the Veteran applied for are maximized as of March 16, 2012, and this appeal is limited to the issue of entitlement to a TDIU prior to that time. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to March 16, 2012, the Veteran was service connected for a heart disease (30 percent), PTSD (50 percent), residuals of a left elbow disability (10 percent), residuals of a fracture of the right fifth metacarpal (0 percent), tinnitus (10 percent), bilateral hearing loss (0 percent), and residuals of malaria (0 percent). His combined disability rating was 70 percent during the period at issue. The Board notes that the Veteran met the schedular criteria for a TDIU during the period at issue because his PTSD was rated at 50 percent (greater than 40), and the Veteran's combined disability rating was 70 percent. However, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities precluded him from obtaining and retaining substantially gainful employment prior to March 16, 2012. While it was factually ascertainable that the Veteran's disability picture had significantly worsened by the time of his March 16, 2012 VA heart examination, evidence prior to that date indicates that his disabilities did not preclude the Veteran from the performance of sedentary tasks. VA afforded the Veteran an examination of his heart condition in May 2010. The examiner noted that the Veteran presented as extremely thin for his height and malnourished but not in distress. The examiner noted that the Veteran was easily fatigued but was able to slowly walk up to one fourth of a mile. During an exercise stress test, the Veteran achieved 86 percent of target heart rate and 7.7 METs. The Veteran had problems with lifting and carrying but was able to handle outdoor chores as long as they were paced. While the Board finds that this evidence indicates that the Veteran's ability to perform some light to heavy cardiovascular activities was limited at the time, the evidence does not show that the Veteran was precluded from performing work primarily involving sitting with little walking, standing, or lifting. Because the Veteran's treatment history from May 8, 2008 to March 16, 2012 is very limited, the Board reviewed the examinations from March 2012 to attempt to ascertain any additional functional limitations that may have existed during the period at issue. The Board finds the March 2012 examination findings to be more probative of the Veteran's functioning during the period at issue than earlier examinations several years prior to May 2008, but the Board also notes that the earlier examinations contain many substantially similar findings. The Board also considered the Veteran's contentions during the period at issue that he was precluded from performing some manipulative tasks including writing reports due in part to both his nerves and a left elbow disability. See Veteran's December 2010 TDIU application. The Veteran was afforded an examination of his left elbow in March 2012. The Veteran reported experiencing pain during flare-ups at a level of 10 out of 10. Painful flexion began at 120 degrees out of 145 degrees range of motion. Muscle strength was 4/5. Extension ended at 30 degrees. The examiner opined that the Veteran would still be able to perform in a sedentary occupational setting despite these limitations although he would not be able to perform in a physical occupational setting. In a March 2013 addendum opinion, the examiner noted that the Veteran had bilateral elbow supination and pronation of 0-80 degrees with no evidence of painful motion. While the Board acknowledges that the Veteran's elbow disability in combination with the heart disability would further limit his ability to maintain some sedentary jobs, the Board finds it would not preclude sedentary employment that did not involve movement the left elbow beyond the limits identified in the March 2012 examination. The Veteran was afforded an examination of his left hand in March 2012. The examiner noted that the Veteran had a spider bite/infection in 1968 and suffered from residuals thereof including weak grip strength and difficulty holding objects for more than several minutes. The examiner opined that while the Veteran would not be able to perform in a physical occupational setting due to his inability to apply grip strength to items and tools (and considering safety concerns with machinery), he could perform in a sedentary occupational setting. However, as the Veteran's left hand injury is not a service-connected disability, such limitations are not considered in the TDIU analysis. Nevertheless, the Board notes that even if they were considered, the evidence shows that the Veteran could perform sedentary tasks despite some limitations in the left hand. VA obtained an addendum opinion in March 2013 addressing Veteran's right fifth metacarpal after informing the examiner that it was the service-connected disability at issue. The examiner responded that the Veteran reported a hand injury with a spider bite without mentioning his service-connected residuals of a right fifth metacarpal fracture. The examiner noted the Veteran had no subjective complaints or physical findings. While the Veteran's service treatment records documented a history of the fracture, the examiner found there are no current residuals based on a lack of subjective or objective findings. Moreover, the Board notes that the Veteran did not mention his hand disabilities as a cause of unemployment on his TDIU application. The Board also notes that the Veteran is service-connected for residuals of malaria, but there is no compelling evidence of substantial ongoing functional limitations from malaria or residuals thereof. See, e.g., March 2012 VA infectious diseases examination (finding that the Veteran had a successful treatment in the 1970s and has no current residuals of malaria). Additionally, the Veteran has not presented contentions on appeal that he experienced more extensive limitations during the period at issue as a result of malaria residuals. The Veteran did not list residuals of malaria as a cause of unemployment on his TDIU application. The Veteran was afforded a VA examination in March 2012 of his hearing loss and tinnitus as well. While the Veteran had some impairment, his speech discrimination was 96 percent for the right ear and 92 percent for the left ear. The VA examiner noted the Veteran had difficulty understanding speech in background noise and in groups, especially women's and children's voices. The Veteran needed to increase the volume on the television and radio. However, the VA examiner found that hearing loss and tinnitus alone did not prevent the Veteran from obtaining or maintaining employment. In light of the above, the Board finds that the evidence shows that the Veteran's ability to perform physical work was significantly limited prior to March 16, 2012 by his heart condition, a left elbow disability, nervousness, bilateral hearing loss, and tinnitus. However, the Board finds that the preponderance of the evidence shows that Veteran retained the ability to perform sedentary tasks that do not require written reports, gripping of objects for extended periods of time, prolonged walking or standing, full flexion or extension of the left elbow, excellent hearing, or the use of dangerous machinery. Prior to the worsening of his heart condition in March 2012, the Board finds Veteran was still capable of meeting the physical demands of some sedentary jobs. See also March 2012 VA heart examination (indicating that the Veteran's heart condition alone did not preclude sedentary work even in March 2012). However, the Board must also consider whether the Veteran's ability to perform sedentary work was precluded by his mental limitations prior to March 16, 2012. VA afforded the Veteran an examination of his mental condition in March 2012. The examiner noted that the Veteran lived with his girlfriend of 22 years and that he took her to medical appointments. The Veteran bowled one night a week, grew fruit trees in his garden, enjoyed fishing trips, went out for coffee, fixed meals at home, and maintained three to four friends. He reported that he had worked part-time at a sheriff's office but ended his employment because he needed time off and felt he was more of a liability than help at the time. The examiner noted many substantial mental health complaints including (but not limited to) difficulty interacting with the public, irritability, memory issues, sleeping trouble with night sweats, anxiety, and hypervigilance. The Board notes earlier lay statements from the Veteran's friends in the record also show evidence of mood disturbances, memory problems, hypervigilance, and some difficulty interacting with others. See, e.g., May 2004 statement from J.E.B. However, the March 2012 examiner ultimately found that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner further opined that the Veteran's mental disability did not appear to make him unable to secure and maintain substantially gainful employment. See also March 2013 VA mental health examiner's addendum opinion. The Board finds that evidence relating to the period at issue indicates that the Veteran's mental disability may preclude the Veteran from engaging in work involving substantial interaction with the public and the performing complex tasks require good concentration, memory, and persistence. However, the Board finds that neither the pertinent VA examinations nor contemporaneous records demonstrate that the Veteran's memory, concentration, persistence, or pace was impaired by mental disability or pain to such a degree that he could not perform simple unskilled or semi-skilled tasks. In contrast, the Veteran reported an ability to perform many simple to more complex tasks including fixing meals and gardening as of March 2012. He reported being able to go out and bowl while maintaining relationships with his girlfriend and friends. The Board affords probative weight to the VA examinations noted above as they are consistent with the totality of the evidence including the treatment history, which shows that the Veteran's disability picture had worsened by March 2012 but that he was otherwise capable of at least some substantially gainful sedentary employment. While the Board also affords some weight to the Veteran's statements and other lay statements in the record regarding his limitations as noted above, the Board finds that they do not establish that he was incapable of performing any substantially gainful sedentary employment prior to March 16, 2012. The Board notes that the record contains examinations of the Veteran's other service-connected disabilities many years prior to May 8, 2008. See, e.g., February 2006 VA mental health examination; May 2004 VA mental health examination. The earlier examinations show many of the same limitations in regard to public interaction, concentration, hearing, and movement. However, the Board notes earlier examinations and lay statements indicate the Veteran's PTSD may have been more severe at the time. Nevertheless, the Veteran indicated on his TDIU application that despite these limitations, he was not precluded from full-time work until May 8, 2008. Additionally, the most recent vocational expert opinion and data submitted by the Veteran's attorney in support of the claim indicates that the Veteran's earnings dipped below the poverty level beginning in 2008. See, e.g., April 2014 brief from the Veteran's attorney; March 2014 opinion from vocational expert, C.A.Y. Therefore, the Board finds the earlier examinations less relevant to the TDIU analysis than later records from May 8, 2008 to March 16, 2012. Nevertheless, the Board notes the earlier examiners did not indicate the Veteran was incapable of obtaining and maintaining substantially gainful employment. The Board considered the March 2014 opinion by a vocational expert, C.A.Y., submitted by the Veteran's attorney. The vocational expert found that the Veteran had a limited education and that his most recent employment at a Sheriff's office accommodated significant absenteeism due to the Veteran's service-connected disabilities. He noted the Veteran has not earned above the federal poverty level since 2008. He noted that the Veteran's last employment was part-time as a guard checking on inmates, people at the door, and dealing with the public. Prior to that, the vocational expert noted that the Veteran worked as a fireman, but he found the Veteran had no vocational skills transferable to other work. The vocational expert found that the Veteran is unable to work in any job for 8 hours per day, must pace himself on even simple and repetitive tasks, and must rest during the day. He described many of the Veteran's symptoms with citation to the medical evidence of record. He opined the Veteran would not be hired for unskilled work when competing against healthy fit people. He concluded that the Veteran is at least as likely as not unable to secure or follow a gainful occupation as a result of his service-connected disabilities, and has been so since May 2009. The Board affords some probative weight to the expert's opinion regarding vocational matters such as the transferability of skills, the conditions of the job market, and the physical and mental demands employment. However, the Board finds that the expert's opinion regarding the Veteran's inability to obtain and maintain sedentary unskilled work requiring eight hour days on simple repetitive tasks is not supported by sufficient rationale. The opinion is based in part on a finding that the Veteran's heart condition limited him to a workload of 3 METs or less, which was not established by the medical evidence of record until the VA examination on March 16, 2012. Accordingly, the Board affords reduced probative weight to the vocational expert's opinion in regard to the period at issue prior to March 16, 2012. While the vocational expert found the Veteran had a limited education and no transferable skills, the Board notes that the Veteran's work history demonstrates an ability to adjust to semi-skilled or skilled work including work as a firefighter and guard among other jobs. The Veteran reported performing some less demanding semi-skilled or skilled tasks after his prior employment ended including cooking meals and gardening. See March 2012 VA mental health examination. The Veteran's Certificate of Release or Discharge also shows that he had experience in service equivalent to that of a kitchen supervisor. Accordingly, the Board finds that the Veteran's education and work experience are not so limited that he would be precluded from performing all substantially gainful sedentary employment in the context of his disability picture prior to March 16, 2012. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran was incapable of obtaining and maintaining any substantial gainful employment of a sedentary, unskilled or semiskilled nature during the period at issue. Accordingly, the Veteran's claim for entitlement to a TDIU prior to March 16, 2012 must be denied. ORDER Entitlement to a total rating based on individual unemployability (TDIU) prior to March 16, 2012 is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs