Citation Nr: 0711166 Decision Date: 04/16/07 Archive Date: 05/01/07 DOCKET NO. 04-34 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from September 1966 to June 1970. This appeal arises from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The veteran's service-connected disabilities include post-traumatic stress disorder (PTSD), rated as 70 percent disabling, and residuals of a laceration of the left Achilles tendon, rated as 10 percent disabling. 2. The veteran's service-connected PTSD is of such severity it has resulted in the veteran being able to maintain only marginal employment. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability 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 (2006). Marginal employment shall not be considered substantially gainful employment. For purposes of this section, 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, Bureau of the Census, 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. 38 C.F.R. § 4.16(a)(2006). The evidence demonstrates the veteran has severe PTSD and that he meets the schedular criteria for assignment of a TDIU. The veteran's disabilities meet the minimum schedular criteria for a total rating as service connection is in effect for PTSD, rated as 70 percent disabling and residuals laceration left Achilles tendon, rated as 10 percent disabling. He meets the threshold criteria for consideration of a schedular total rating based on individual unemployability due to service-connected disability outlined in 38 C.F.R. § 4.16(a). VA records indicate the veteran has severe PTSD. His symptoms include weekly nightmares, panic attacks, continuous depression, episodes of unprovoked violence, and inability to communication. During a number of VA outpatient treatment sessions the veteran had remained mute and been unable to communicate. In addition, he had a panic attack during a Magnetic Resonance Imaging (MRI) examination. He had attacked his son-in-law, and been arrested when neighbors called the police to his home during a domestic violence incident. His spouse had reported to VA personnel that the veteran left their home during the night and would spend it at a neighbor's farm sleeping with the animals, which he found comforting. The Board noted the Global Assessment of Functioning (GAF) scores assigned which range from 41 to 51. The majority of scores assigned were 50 or less. GAF scores ranging from 41 to 50 reflect serious symptoms or any serious impairment in social and occupational functioning (e.g., no friends, unable to keep a job). See Carpenter v. Brown 8 Vet. App 240 (1995); Richard v. Brown 9 Vet. App. 266 (1996). On his application for TDIU, dated in May 2003, the veteran indicated he last worked full time in June 2002. During the past twelve months he noted he made $9000. He had been self employed in auto sales since 1983. He had completed one year of high school and had no further training. VA outpatient treatment records include several statements from the veteran describing his employment. In April 2001, he stated he worked as a car salesman for a used car dealer. In January 2003, the veteran told the examiner that he had owned his own used car business since about 1984 or 1985. He also stated the following: about seven years previously he had turned the business over to his son; he was now working a couple of days a week for his son buying cars; and he worked part-time. August 2003 VA records indicate the veteran was working full time buying cars for a car lot. An August 2004 letter from the veteran's son reveals that the veteran had started a used car business in 1983, but that he had no active role in the business since June 2002. The veteran's mental illness was so severe, he was not allowed to talk to customers. He had been verbally abusive and threatened bodily harm to customers. His son had tried to support his father's feelings of continued involvement as a way for him to feel important, but the son indicated that the veteran's mental health condition prevented him from having an active role in the business. A total rating based on individual unemployability is assigned when service-connected disability results in the veteran being unable to maintain substantial gainful employment. The veteran has consistently reported he works part-time for his son in the used car business. The question in this case is whether his employment would be considered substantial gainful employment or meets the definition of marginal employment. The Board has concluded the veteran has been only marginally employed. On his application in 2003 the veteran listed having earned $9000 for the previous nine months. The poverty threshold for one person for 2002 according to the Census Bureau is $9,183. (Source: U.S. Census Bureau, Current Population Survey, 2003 Social and Economic Supplement). In addition, the veteran was employed in a family business. Based on the statement of the veteran's son he was not actively involved in the family business. As the veteran's income was below the poverty threshold, and he was working in a protected environment his employment meets the definition of marginal employment. The Board has concluded his service-connected disabilities cause him to be unable to sustain substantial gainful employment. 38 C.F.R. § 4.16(a)(2006) Entitlement to a total disability rating based on individual unemployability due to service-connected disability is warranted. Because the Board has resolved the claim favorably, there can be no prejudice due to any defect associated with VA compliance with the duties to notify or to assist, consistent with 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Therefore, no further discussion is warranted on this matter. ORDER A total rating based on individual unemployability due to service-connected disability is granted. ____________________________________________ M. E. LARKIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs