Citation Nr: 1749130	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  17-32 090	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 19, 2013.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from October 1985 to February 1986 and from September 1990 to May 1991.  The Veteran also had additional service in the National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In April 2017, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) to issue the Veteran a Statement of the Case.  The matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2016).  


FINDINGS OF FACT

1.  Prior to July 19, 2013, the Veteran is service connected for PTSD with stuttering (rated at 50 percent from July 18, 2007, and at 70 percent from March 4, 2012); fibromyalgia (rated at 40 percent from October 11, 2007); right shoulder arthritis (rated at 20 percent from August 30, 2007); tinea cruris (rated at 10 percent from October 11, 2007; and erectile dysfunction (rated as noncompensable (0 percent) from June 6, 2013.  

2.  Prior to October 11, 2007, the percentage ratings for the Veteran's service-connected disabilities do not meet the minimum combined schedular criteria for the grant of a TDIU as service connection was not in effect for one disability rated at least 60 percent disabling, or at least one disability rated at 40 percent with sufficient additional service-connected disabilities such that the combined disability rating was at least 70 percent.

3.  For the entire period on appeal (prior to July 19, 2013), the Veteran was not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of his service-connected disabilities (including impairment resulting solely therefrom), and referral to the Director of Compensation and Pension for consideration of a TDIU under 38 C.F.R. § 4.16(b), prior to October 11, 2007, is not warranted.


CONCLUSION OF LAW

The criteria for the award of a TDIU prior to July 19, 2013, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Neither the Veteran nor the representative has 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).

A TDIU

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38 C.F.R. § 4.15.

If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).  

For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  Id.

A TDIU can still be awarded under 38 C.F.R. § 4.16(b) if it is established by the evidence of record that service-connected disabilities have rendered the veteran unable to secure and follow substantially gainful employment.  If this is established, the case is to be sent to the Director of Compensation and Pension for extraschedular consideration.  See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b).  

It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable.  Id.; see also Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board).  Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board).

Marginal employment shall not be considered substantially gainful employment.  For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  Id.

A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).  

In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability.

In order for a veteran to prevail in his claim for a TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).  

For the entire TDIU rating period on appeal (i.e., prior to July 19, 2013), the service-connected disabilities are PTSD with stuttering (rated at 50 percent from July 18, 2007, and at 70 percent from March 4, 2012); fibromyalgia (rated at 40 percent from October 11, 2007); right shoulder arthritis (rated at 20 percent from August 30, 2007); tinea cruris (rated at 10 percent from October 11, 2007; and erectile dysfunction (rated as noncompensable (0 percent) from June 6, 2013.  The combined schedular disability rating for all service-connected disabilities is 50 percent (from November 16, 2009), 60 percent (from August 30, 2007), 80 percent (from October 11, 2007), and 90 percent (from March 4, 2012).  As such, the percentage ratings for the Veteran's service-connected disabilities do not meet the minimum combined schedular criteria for the grant of a TDIU prior to October 11, 2007.  Regardless of whether the Veteran meets the schedular requirements, this decision rests on whether the Veteran was able to secure and maintain substantially gainful employment prior to July 19, 2013.  In short, referral for extraschedular consideration prior to October 11, 2007 (under 38 C.F.R. § 4.16(b)) is not warranted if the Veteran was able to secure and maintain substantially gainful employment.

After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the service-connected disabilities are of sufficient severity so as to preclude substantially gainful employment for any period prior to July 19, 2013.  In an October 2007 VA general medical examination, the Veteran reported that he last worked in December 2006 as an auto salesman.  He owned his own auto sales business and had been in that line of business for over nine years.  The Veteran indicated that, in December 2006, he had to close his operation secondary to "emotional stress."  He stated that he currently (at the time of the October 2007 VA examination) does not feel like working and has not actively sought gainful employment.  Upon further questioning from the VA examiner, the Veteran explicitly denied any specific medical condition that would preclude him from being gainfully employed.

In a September 2009 disability determination, the Social Security Administration (SSA) concluded that the Veteran was not disabled, through December 2008, due to the primary and secondary diagnoses of osteoarthritis and other disorders of the skin, respectively.  In an explanation to the September 2009 determination, the SSA indicated that, although the Veteran stated that he is disabled and unable to work due to PTSD, arthritis, and candidiasis (service connected as tinea cruris), the available evidence did not show that the Veteran's conditions limited his ability to perform all types of work.  In this regard, although SSA determinations regarding unemployability and disability are not binding on VA, they may be relevant in disability determinations.  Masors v. Derwinski, 2 Vet. App. 181, 188 (1992); see also Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements).  In a January 2010 disability determination, the SSA again concluded that the Veteran was not disabled, through December 2008, due to the primary and secondary diagnoses of anxiety related disorders and (alcohol) substance addiction disease, respectively.

The Veteran underwent a VA Gulf War Guidelines examination in April 2010.  As to the Veteran's functional impairment caused by stuttering, the VA examiner indicated that the Veteran was not able to perform his duties as an automobile salesman.  Similarly, as to the Veteran's functional impairment caused by left wrist arthritis, the VA examiner indicated that the left wrist arthritis affected the Veteran's occupation as an automobile salesman because it interfered with keyboarding and lifting.  Significantly, the Veteran is service connected for stuttering (associated with PTSD) and is not service connected for left wrist arthritis.  While the VA examiner indicated that the stuttering and left wrist arthritis affected the Veteran's occupation (as an automobile salesman), the VA examiner did not indicate that the Veteran could not obtain and maintain employment in all sources of employment (other than automobile salesman).

The Veteran was afforded a VA PTSD examination in September 2010.  Regarding occupational history, the Veteran reported that he had his own business selling cars, but had to close the business because he could not make appropriate financial decisions.  He was drinking at that time.  Since he stopped drinking, the Veteran reported that he has made better decisions.  Significantly, the Veteran is not service connected for alcohol dependence or abuse.  In addition, the Veteran's score on the Global Assessment of Functioning (GAF) scale was 60, suggesting moderate difficulty in social, occupational, or school functioning.  In this regard, the GAF score reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms.  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the Diagnostic and Statistical Manual of Mental Disorders at 32 (4th ed. 1994)).

In August 2011, the Veteran underwent another VA PTSD examination.  At that time, the VA examiner assigned the Veteran a GAF score of 50, suggesting serious impairment in social, occupational or school functioning.  Regardless of the GAF score, the VA examiner indicated that the Veteran's PTSD resulted in moderate impairment in occupational functioning, and his overall level of disability was moderate.  Based on these findings, the VA examiner opined that the PTSD, alone, did not prevent the Veteran from obtaining or maintaining a substantially gainful employment.  The Veteran also underwent a VA general examination in August 2011.  Upon physical examination, the VA examiner opined that, from a medical aspect, there was no reason why the Veteran should not be able to secure and maintain substantially gainful employment, whether it was physical or sedentary.

Upon remand by the SSA Appeals Council, in an October 2011 determination, the SSA again determined that the Veteran was not disabled, due to the claimed conditions of through December 2008.  In a lengthy explanation, which was based, in part, on the July 2011 testimony of an impartial vocational expert, the SSA determined that there were jobs that existed in significant numbers in the national economy that the Veteran could have performed.  

The Veteran was afforded another VA PTSD examination in February 2013.  The Veteran reported that he had to stop working in auto sales because he was tired and frustrated with customers, and was arguing with customers.  The VA examiner assigned a GAF of 49, suggesting serious impairment in social, occupational or school functioning; however, the VA examiner also concluded that the Veteran had occupational and social impairment with 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.

The weight of lay and medical evidence shows that the Veteran's service-connected disabilities, including PTSD with stuttering, fibromyalgia, right shoulder arthritis, tinea cruris, and erectile dysfunction, have not rendered him unable to obtain (secure) or maintain (follow) substantially gainful employment.  Notably, no clinician has stated that the Veteran is unemployable due to the service-connected disabilities at any time during the period on appeal prior to July 19, 2013.  Instead, an impartial vocational expert testified before the SSA, in July 2011, that the Veteran would have been able to perform the requirements of representative light, unskilled occupations, such as garment folder and routing clerk.  Indeed, the record indicates that the Veteran has at least a high school level of education plus two years of college education and experience in managing a business.  In this regard, the Veteran may have demonstrated difficulty in obtaining and maintaining employment in one particular field (automobile sales), but not to all reasonably available sources of employment under the circumstances.  See Ferraro, 1 Vet. App. at 331-332.  In addition, the Veteran's contentions regarding the reason why he closed the auto sales business and stopped working have varied throughout the appeal period (prior to July 19, 2013), which have included symptoms associated with the service-connected PTSD, candidiasis (service connected as tinea cruris), arthritis of the knees and wrists (not service connected), and polysubstance dependency/abuse (not service connected).  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities, in determining whether unemployability exists).  

Here, prior to July 19, 2013, the symptoms and functional impairment associated with the service-connected disabilities would not significantly interfere with the ability to perform the tasks associated with light, unskilled occupations.  The collective symptoms and functional impairment associated with the service-connected PTSD with stuttering, fibromyalgia, right shoulder arthritis, tinea cruris, and erectile dysfunction are not so severe so as to preclude all other available sources of employment.  Thus, the weight of the evidence is against finding that the severity of service-connected disabilities, alone, was sufficient to preclude substantially gainful employment for any period prior to July 19, 2013.  See Hatlestad, 5 Vet. App. at 529.

For these reasons, although the Veteran was not employed during the entire appeal period prior to July 19, 2013, the Board finds that the weight of the evidence demonstrates that the criteria for a TDIU prior to July 19, 2013, including consideration under the provisions of 38 C.F.R. § 4.16(a) and (b), have not been met or more nearly approximated, and a referral to the Director of Compensation and Pension for consideration of a TDIU under 38 C.F.R. § 4.16(b), prior to October 11, 2007, is not warranted.  


ORDER

Entitlement to a TDIU prior to July 19, 2013, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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