Citation Nr: 21000699 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-18 071 DATE: January 6, 2021 ORDER Prior to July 5, 2012, a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to July 5, 2012, the Veteran’s service-connected disabilities did not render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to July 5, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1971 to August 1974 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. 1. Prior to July 5, 2012, a TDIU is denied. In the March 2011 rating decision on appeal, the RO denied the Veteran’s claim for a TDIU. In a September 2012 rating decision, the RO granted a TDIU, effective July 5, 2012. However, because a TDIU was not granted for the entire appeal period, the matter of a TDIU prior to July 5, 2012 remained on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In January 2015, the Board remanded the claim for a TDIU prior to July 5, 2012 for further development. In August 2017, the Board denied the claim. The Veteran appealed the Board's decision on to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court vacated the August 2017 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion. The parties found that the Board had not properly considered all relevant evidence, citing particular records that the Board will address below. Additionally, the parties found that the Board had not adequately addressed the Veteran’s occupational and educational history, which also will be discussed further below. In April 2019, the Board remanded the TDIU claim for further development. VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Prior to July 5, 2012, the Veteran’s service connected disabilities included the following: temporal and migraine headaches associated with cervical disc disease (30 percent disabling from 6/9/09); depressive disorder not otherwise specified associated with residuals of a fractured right clavicle with malunion (30 percent disabling from 6/9/09); residuals of a fractured right clavicle with malunion (20 percent disabling from 8/12/03); residuals of a pneumothorax (noncompensable). His combined disability rating was 20 percent from August 12, 2003, and 60 percent from June 9, 2009. See April 2014 rating decision codesheet (most recent codesheet). A review of the record reveals that the Veteran’s headache disability and fractured right clavicle both arose from an in-service motor vehicle accident, and depressive disorder has been awarded as secondary to these disabilities. See April 1975 and June 2010 rating decisions. As these disabilities arose from a common etiology, they may be considered one rated as 60 percent disabling. 38 C.F.R. § 4.16(a)(2). As such, the schedular requirements of 38 C.F.R. § 4.16(a) were met for the portion of the appeal period from June 9, 2009 to the award of a TDIU on July 5, 2012. Prior to June 9, 2009, the Veteran’s combined disability rating was 20 percent and the schedular criteria were not met. Nonetheless, it is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities “shall be rated totally disabled.” See 38 C.F.R. § 4.16(b). The Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service (Director) for consideration of an “extraschedular rating”. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this regard, the Board remanded the claim for referral to the Director in January 2015. In August 2016, the Director denied the claim. The Board must now determine whether the Veteran's service-connected disability precluded him from engaging in substantially gainful employment prior to July 5, 2012 (work that is more than marginal, which permits the individual to earn a “living wage.”) Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board's analysis will focus specifically on what evidence is needed to substantiate the claim, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In doing so, the Global Assessment of Functioning (GAF) scores assigned by VA psychiatric examiners will be discussed. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) at 44-47. While the current DSM-V does not incorporate the use of GAF scores, the Secretary of VA has specifically indicated that DSM-V is to be applied to claims certified to the Board on or after August 4, 2014. 79 Fed. Reg. 45094 (Aug. 4, 2014). As the claim here was certified prior to that date, GAF scores, which are part of the DSM-IV, are applicable. A GAF score is probative as it relates directly to the veteran's level of impairment of social and industrial adaptability. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 contemplates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 61-70 contemplates 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, has some meaningful interpersonal relationships. In determining the appropriateness of the evaluations assigned to the Veteran's disability, the Global Assessment of Functioning (GAF) scores assigned by medical providers will be discussed. Initially, with regard to the Veteran’s occupational and educational background, in accordance with the Board’s April 2019 remand directives, in September 2019 the RO provided him with a VA Form 21-8940, Application for Individual Unemployability. The RO had previously provided him with a VA Form 21-8940 and requested that he complete it in both June 2010 and March 2016. Despite VA's repeated requests for the Veteran to complete VA Form 21-8940 the Veteran has not complied. A substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. A completed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. A review of the record shows the Veteran completed 12 years of education and some college. He reports that he has not worked full-time in a substantially gainful occupation since 2002/2003. Prior to military service, he worked on a farm. Following service, he worked as a handyman. He reports he has been unable to work due to his service-connected disabilities, including incapacitating headaches that have required treatment with prescribed morphine. The record does not reveal the information that a completed VA Form 21-8940 would have provided, including, for example, the Veteran’s maximum past salary and when it was earned, his attempts to obtain employment since becoming disabled, his exact educational history, and whether he attempted any training before or after becoming disabled. As he has not completed this form, VA's efforts have been frustrated in developing the claim. VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193(1991). On VA examination in March 2004, the Veteran reported a history of sustaining a right clavicle fracture in a motorcycle accident during military service. He stated he had last worked in construction one year prior, and had to stop due to recurrent neck pain, cluster migraines, and right shoulder pain. He had increased right shoulder pain during overhead reaching, material handling, and with repetitive arm use. He also had right shoulder pain while driving and using a computer. The examiner opined that within a reasonable degree of medical probability, his clavicle disability would give him difficulty with repetitive overhead material handling in excess of ten pounds. On VA examination of the pneumothorax residuals in April 2004, the Veteran reported a history of recurring pneumonia. He had experienced dyspnea for 15 to 20 years, but could walk for a quarter of a mile before coming short of breath. He was diagnosed with chronic obstructive pulmonary disease (COPD) due to his tobacco use since 1973. Impairments in pulmonary functioning testing were consistent with COPD. He was also diagnosed with status-post spontaneous pneumothorax, without sequelae. On VA examination of the right clavicle in August 2009, the Veteran reported having difficulty gripping objects and laying on his right side, and that he could not perform overhead handling. He reported he could no longer work as an electrician due to his right shoulder symptoms. The examiner noted pain and weakness of shoulder, and numbness of the right arm that affected the motion of the joint. Flexion was limited to 80 degrees, abduction was limited to 90 degrees, and internal and external rotation were both 90 degrees. The examiner noted that the Veteran’s occupation was in construction, that he was currently employed full-time, but that he had lost six weeks from work in the past year because of neck pain and non-service connected low back pain. The examiner found the clavicle disability caused significant effects on occupation due to problems with lifting, carrying, decreased strength, and pain. On VA psychiatric examination in December 2009, the examiner noted that Appellant had some college education, carpentry training, and was a journeyman. The Veteran reported ongoing depression related to his in-service injury, pain, and inability to work a full schedule, and reported sleeping disturbances and feelings of bitterness and pessimism. On examination, his appearance was normal, speech was normal, and affect was appropriate. His mood was dysphoric and attention was intact. He was oriented, thought processes were unremarkable, and judgement was normal. The examiner found the Veteran had lost no time from work in the past year due to his psychiatric disability. In characterizing the severity of the psychiatric disability, the examiner found an occasional decrease in work efficiency with intermittent periods of an inability to perform occupational tasks at the exclusion of finding more significant levels of impairment, including total occupational impairment. The Veteran was assigned a GAF score of 55. On VA examination of the pneumothorax in December 2009, the examiner found a history of a traumatic pneumothorax of the right lung in 1973, with no recurrent pneumothorax. The Veteran had chronic bronchitis from smoking. The effect of the pneumothorax on his occupation was that it caused some shortness of breath. On VA headache examination in December 2009, the examiner noted the Veteran had experienced monthly migraines for many years. He had worked as an electrician but retrained to work as a front-end loader to reduce overhead work. His symptoms had improved with epidural shots to the cervical spine, and nerve stimulation. The headaches had a significant impact on occupational activities due to pain. On VA psychiatric examination in October 2010, the Veteran’s speech was slow and clear. His affect was appropriate, mood was neutral, and attention was intact. He was oriented, thought processes and content were unremarkable, and judgment was normal. Memory was normal and the Veteran could manage his financial affairs. The examiner found the Veteran had lost no time from work in the past year due to his psychiatric disability. In characterizing the severity of the psychiatric disability, the examiner found an occasional decrease in work efficiency with intermittent periods of an inability to perform occupational tasks at the exclusion of finding more significant levels of impairment, including total occupational impairment. He was assigned a GAF score of 55. On VA examination of the clavicle in January 2011, the Veteran reported worsening pain, weakness, and aggravation of the right shoulder when lifting overhead. He stated he worked part-time in construction. On examination, flexion was to 150 degrees in the right shoulder and 160 degrees in the left. Abduction was to 150 degrees in the right shoulder and 160 degrees in the left. Repetitive motion did not result in additional loss of motion. The examiner found no significant effects of the disability on employment. On examination of his headaches, the Veteran reported some improvement with thermoregulation treatment to the cervical spine. However, he experienced steady, daily headaches. The examiner noted no effect of the disability on employment or daily activities. On examination of his pneumothorax residuals, the Veteran reported pain in the chest wall. On examination, including a review of pulmonary testing results, the examiner diagnosed an old traumatic left pneumothorax with a barely visible scar. There was no effect of the condition on employment or daily activities. At the conclusion of the report, the January 2011 examiner opined the Veteran was not limited in his ability to secure and maintain physical or non-physical employment due to the clavicle, headache, and pneumothorax disabilities. In August 2011, the Veteran submitted an October 2003 letter from the Florida Department of Education, stating he had suffered a work injury in November 2000. The agency had determined that the Veteran’s headaches and medication prevented him from concentrating, and he was found medically unstable and unable to undergo a reemployment program at the time. He was declared ineligible due to ongoing medical instability and his file was closed. At the November 2014 hearing, the Veteran reiterated the findings of the Florida Department of Education. He testified that due to his morphine prescription, he was relegated to doing any handyman work he could find, and had been homeless twice. He clarified that, contrary to findings in prior VA examination reports, he never ran a company in Tennessee, and had only ever performed handyman work. He testified that in 2010, for example, he only earned between seven and nine thousand dollars performing handyman services. He additionally clarified that at the time of his October 2010 VA examination, he just received radiofrequency ablation treatment for his headaches and was not experiencing his usual pain symptoms. Records from the Social Security Administration were requested, but a March 2016 response indicated that the records had been destroyed. In May 2020 psychiatric Disability Benefits Questionnaires (DBQs), the examiner found that it is at least as likely as not that the Veteran’s ability to maintain gainful employment from 2004 to 2012 was significantly affected by his physical and mental health conditions. His depression impacted his ability to be productive or reliable at work, and was manifested by fatigue, occasional suicidal thoughts, an inability to communicate or think, problems with concentration, and irritability. In May 2020 general DBQs, the examiner opined that a review of the Veteran’s medical records did not conclusively show that he was unable to perform employment activities between 2004 and 2012. The right clavicle disability did not limit him from performing non-physical employment and there was no objective evidence of functional impairment due to the pneumothorax. The psychiatric disability was not shown to render him unable to follow substantially gainful employment. A review of records did not indicate a history of medication adjustments or any ill effects of treatment for his mental condition that would render him unable to perform employment activities. The Court has defined “substantially gainful employment” as encompassing both an economic and a noneconomic component. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Here, despite the absence of a completed VA Form 21-8940 documenting the Veteran’s employment history, the Board resolves any doubt in his favor and finds that the economic component of Ray has been met. While the Veteran was noted to be employed during various portions of the appeal period, the record indicates it was not consistent and likely marginal. As for the noneconomic component, the Veteran is vocationally-limited to the extent that he has not obtained a college degree. However, he partially completed college, and has training and experience in carpentry. He did not have any service-connected disability causing a visual limitation. He did not have any service-connected disability causing an audiological limitation. While his right clavicle disability caused limitations in lifting, climbing, and reaching, there were no limitations shown in his ability to bend, sit, stand, walk, grasp, or type. Further, his pneumothorax was noted to cause some shortness of breath but the bulk of his respiratory impairment was attributable to his non-service connected COPD. As for his mental abilities, the May 2020 psychiatric examiner found that his depression significantly impacted his ability to be productive or reliable at work, and was manifested by fatigue, occasional suicidal thoughts, an inability to communicate or think, problems with concentration, and irritability. The probative value of the May 2020 VA examiner’s findings is limited to the extent that none of the evidence she summarized, nor any of the records reviewed by the Board, document that the Veteran had an inability to communicate or an inability to think during the pertinent appeal period. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate). Moreover, two different VA psychiatric examiners in October 2010 and December 2009 rendered findings inconsistent with those of the May 2020 examiner; namely, no impairments in the Veteran’s ability to communicate, think, or concentrate were found on either clinical examination. Both examiners assessed the severity of the disability, and opined that it caused no more than an occasional decrease in work efficiency with intermittent periods of an inability to perform occupational tasks. Both examiners assigned GAF scores of 55, indicating only moderate symptoms. Further, the May 2020 general DBQ examiner reviewed the claims file, and indicated that between 2004 and 2012, the Veteran’s psychiatric disability was not shown to render him unable to follow substantially gainful employment. As such, the preponderance of the evidence is against a finding of a significant limitation in the Veteran’s mental ability during the pertinent appeal period. The Board has considered the lay evidence and finds that the Veteran’s personal observations, and those of his friends, as to the effect his service-connected disabilities had on his ability to work is probative. The competent medical evidence above is also persuasive. The Board has additionally considered the concerns of the parties, documented in the Joint Motion. Specifically, the parties found that while the August 2009 VA examination had been discussed, the Board had not addressed the fact that the shoulder disability had significant occupational effects, causing problems with lifting, carrying, and decreased strength. The Board had not discussed the March 2004 record documenting that the Veteran had stopped working, in part, due to his right shoulder and headache disabilities. The Board did not address why the October 2003 letter from the Florida Department of Education was outweighed by other evidence. The Board recognizes and has considered these records. However, when assessing the Veteran’s service-connected disability picture as a whole, which included no visual limitations, no audio limitations, partial physical limitations which have no impact on his ability to bend, sit, stand, walk, grasp, or type, and no probative evidence of mental limitations limiting his ability to adapt to change, handle workplace stress, get along with coworkers, or demonstrate reliability and productivity, the Board finds that the preponderance of the evidence is against the assignment of a TDIU for the portion of the appeal period prior to July 5, 2012. The Board finds that the ratings assigned for his disabilities during this time frame are recognition of the occupational impairment they caused. Finally, the Board has also carefully considered the fact that in January 2015, the Board remanded the claim for consideration by the Director, Compensation Service. In Ray, the Court held that the Board’s determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to TDIU after referral, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” Ray, 31 Vet. App. at 58. Factors that could affect the Board’s ability to reach a different result include, but are not limited to, the certainty or complexity of factfinding in the initial referral decision, and the extent to which the record changed since the referral decision. As an example, the Court stated that where the Board finds the referral appropriate because it is “beyond dispute" that a veteran is unemployable, more explanation might be needed for a contrary finding than where the Board's referral finding is more equivocal. Id. at 67. The deviation here from the January 2015 referral is largely due to a change in the record since that remand. Specifically, in May 2020 a physician reviewed the entire claims file and concluded that the record from 2004 to 2012 did not indicate that the Veteran was unable to secure or follow substantially gainful employment. Further, while in the remand the Board relied heavily on the fact that the Veteran used morphine sulphate to treat his headache disability, impacting his ability to work, a close review of the record shows that he was weaned from this medication in September 2007, and had stopped using it entirely by October 2007, prior to his 2009 claim. Subsequent treatment records and examination reports do not indicate his further use of this medication. Additionally, to the extent the Board discussed evidence supporting the fact that the Veteran had not performed substantially gainful work prior to July 2012, the Board here accepts that the economic component of Ray is met, but is denying a TDIU based on nonecomonic factors. (Continued on the next page)   In sum, the Board finds the preponderance of the evidence is against the award of a TDIU prior to July 5, 2012. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.