Citation Nr: 1754221
Decision Date: 11/28/17 Archive Date: 12/07/17
DOCKET NO. 13-06 149 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
Entitlement to total disability based on individual unemployability (TDIU).
Appellant represented by: National Association of County Veterans Service Officers
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
RLBJ, Associate Counsel
The Veteran served honorably in the Republic of Vietnam; had active U.S. Army service from May 1970 to December 1971.
This appeal arrives before the Board of Veterans’ Appeals (Board) after multiple denials by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (hereinafter the agency of original jurisdiction (AOJ)).
In March 2014, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is found in the Legacy Content Manager (LCM). The Veteran’s entire claims file is found in the LCM and Veterans Benefits Management System (VBMS) databases.
The issue of entitlement to TDIU was previously before the Board in June 2016. At that time, the Board found that an inferred claim for TDIU had been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Consequently, the Board remanded the issue to the AOJ for further development.
The Board finds that the requisite, substantial development was completed after the June 2016 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Consequently, the Board has the evidence necessary for the analysis and decision found below.
FINDING OF FACT
Resolving all doubt in the Veteran’s favor, the competent evidence shows that the Veteran’s service-connected disabilities prevent him from securing and maintaining substantially gainful employment.
CONCLUSION OF LAW
The criteria for entitlement to total disability based upon individual unemployability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA’s duties to notify and to assist a Veteran in developing information and evidence necessary to substantiate claims.
Neither the Veteran nor his representative has raised any issues with the VA duties to notify or 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 a duty to assist argument).
Moreover, as the claim of total disability based upon individual unemployability (TDIU) is resolved in the Veteran’s favor, further discussion here of compliance with the VCAA duties is not necessary.
II. Total Disability Based Upon Individual Unemployability (TDIU)
The Veteran contends that he is entitled to TDIU because his service-connected disabilities prevent him from obtaining and maintaining gainful employment.
The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. “Generally, the degrees of disability specified (in the rating schedule) are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1.
A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability (or disabilities) preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).
The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability). The word “substantially” suggests an intent to impart flexibility into a determination of a veteran’s overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).
Whether the Veteran’s service-connected disabilities render him unemployable is not a determination which is medical in nature 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).
The Board finds that the evidence regarding the Veteran’s unemployability due to service connected disability is in relative equipoise. Accordingly, the Board will afford him the benefit of the doubt and grant his claim.
“Substantially gainful employment” is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Further, in evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.
The Veteran is currently service connected for post-traumatic stress disorder (PTSD) at 70 percent, effective September 12, 2012. Service-connection has also been established for xerosis (rated as 30 percent disabling), tinnitus (rated as 10 percent disabling), and bilateral hearing loss disability (rated as noncompensable). He has maintained an overall disability rating of 80 percent since September 12, 2012.
The record reflects that the Veteran is a high school graduate with two years of college training. See December 2016 VA 21-8940. The evidence within the claims file reflects that the Veteran’s education, training, and experience has equipped him only for work positions that are now precluded by his service-connected PTSD and hearing disabilities. The evidence addressed below supports the conclusion that the Veteran would require a position where he does not have to work with the public, or interact with co-workers and supervision. Affording the Veteran the benefit of the doubt, the Board finds that the combined limitations placed upon any employment situation make it difficult, if not impossible, for the Veteran to secure and maintain substantially gainful employment.
While no health care provider has expressly stated that the Veteran is unemployable as a result of his service connected disability. Review of the record suggests that it is unlikely that the Veteran would be able to obtain and maintain gainful employment due to the severity of his service-connected disabilities. After a thirty-year career, PTSD symptoms (e.g., anxiety) led the Veteran to an early retirement from a career as a maintenance supervisor in the pharmaceutical industry. See December 2012 VA Examination Report. The Veteran worked on large machines with high voltages and elevated locations. See October 2012 Statement from Wife. The evidence also reflects that, at the time of retirement, the Veteran’s PTSD symptoms made it difficult to “concentrat(e) at work, or on almost anything.” See October 2012 VA 21-4138 from Senior Pastor.
After retirement from the pharmaceutical industry, the Veteran worked part-time at Ford dealership delivering parts. See March 2014 Hearing Transcript. One purpose of the June 2016 Board remand was to determine whether part-time employment at the Ford dealership constituted marginal employment.
In August 2016, in compliance with the Board’s remand directive, the AOJ asked the Veteran to identify his employment history. In December 2016, the Veteran identified his thirty-year employer in the pharmaceutical industry. See VA 21-8940. The Veteran did not identify or name a car dealership as an employer. Id. Within his response, however, the Veteran relayed depression and anxiety would cause problems with co-workers. Id. He also relayed an inability to take PTSD prescriptions while at the workplace. Id.
The AOJ’s inability to identify and contact the Ford dealership about the Veteran’s part-time employment does not prevent the Board from continuing with its analysis and decision. In January 2017, the Nebraska Department of Veteran’s Affairs (NDVA) supplied an Employment Data Report for the Veteran’s work number. See NDVA Employment Data Report. Taking into consideration the Veteran’s reported W-2s, the NDVA indicated that the Veteran earned only $2,602 in 2013.
On February 9, 2017, the AOJ received a response from the Veteran’s thirty-year employer. See VA 21-4192. Within this response, the pharmaceutical employer noted that mental health (PTSD) caused the Veteran to miss five weeks of work during the last employment year. The employer also relayed that concessions were made to the Veteran because (1) “PTSD condition interfered with (his) ability to make good judgments, and (2) “(the Veteran) could not interact with others well.”
In April 2017, the Veteran underwent a VA examination for his PTSD disability. The examination report was delivered after the provider had reviewed the Veteran’s electronic claims file. The VA provider opined that the Veteran demonstrated, “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” During occupational history collection, the Veteran stated that he had not worked since 2013. During relevant health history collection, the Veteran conveyed that when he consistently took his PTSD medications that, “I maybe don’t get as anxious in certain instances.” The VA provider concluded with, “(i)t is my clinical opinion the Vet’s PTSD would likely result in significant occupational impairment.”
With regard to the Veteran’s remaining service-connected disabilities, two of them also have an effect on his ability to maintain substantially gainful employment. After a May 2012 audio examination, the VA provider opined, “the Veteran’s hearing loss impact(s) ordinary conditions of daily life, including ability to work.” At that time, the Veteran reported difficulty hearing high pitch sounds and voices. The VA provider also opined that, “the Veteran’s tinnitus impact(s) conditions of daily life, including ability to work.” The Veteran reported, “(t)he tinnitus is noticed daily . . ..”
The central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Here, affording the Veteran the benefit of the doubt, the Board finds that the evidence for and against the claim is in relative equipoise regarding his ability to obtain gainful employment due to his service connected disabilities.
The Board notes that the Veteran’s combined disability evaluation for compensation is 80 percent. The Veteran’s PTSD has been rated at 70 percent since September 12, 2012. Accordingly, the Veteran is entitled to a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a).
The issue of the effective date of the award of TDIU will be addressed by the AOJ in a rating decision implementing the Board’s grant of entitlement to TDIU in order to preserve the Veteran’s right to appeal in the event that he disagrees with the date assigned. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003).
Entitlement to TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits.
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs