Citation Nr: 1023321 Decision Date: 06/23/10 Archive Date: 07/01/10 DOCKET NO. 05-28 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The Veteran had active service from September 1967 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. FINDING OF FACT The Veteran has multiple service connected disabilities which render him unable to maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.16(a) (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims that he is unable to secure or maintain substantially gainful employment because of his service- connected disabilities. A veteran may be awarded a 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. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. Even if the ratings for a veteran's disabilities fail to meet the first two objective bases upon which a permanent and total disability rating for compensation purposes may be established, the veteran's disabilities may be considered under subjective criteria. If the veteran is unemployable by reason of his disabilities, occupational background, and other related factors, an extraschedular total rating may also be assigned on the basis of a showing of unemployability, alone. See 38 C.F.R. § 4.16(b). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. However, in order to be granted a TDIU, the veteran's service-connected disabilities alone must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, the Veteran's service-connected disabilities include post traumatic stress disorder (PTSD), with a 50 percent disability rating; mild neuropathy with hypertension, rated as 30 percent disabling; diabetes mellitus, type II (DMII) with upper extremity neuropathy, rated as 20 percent disabling; diabetic peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; diabetic peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; a scar of the upper left arm, rated as 10 percent disabling; impotency, rated as noncompensable; and residuals of a wound to the right side of the neck, rated as noncompensable. The Veteran has an 80 percent combined rating for compensation purposes. Since the Veteran's PTSD is rated at 50 percent and additional disabilities to bring the combined rating to 80 percent, the Veteran meets the schedular criteria for TDIU. Next the Board must determine whether the Veteran's service connected disabilities are sufficiently severe to produce unemployability. In October 2009, the Veteran had VA examinations to determine the impact of his service-connected disabilities on his ability to maintain substantially gainful employment. In the examination report for DMII, hypertension, and neuropathy, the examiner indicated review of the claims file. The Veteran reported that in March 2004 he was fired from his job as a machinist where he had worked for 35 years. He said he was receiving unemployment benefits and benefits from the Social Security Administration (SSA) for his low back condition and obesity. The examiner stated that the Veteran's DMII with erectile dysfunction and bilateral lower extremity neuropathy might limit employment requiring heavy physical exertion. She stated that these conditions would not limit employment requiring light or sedentary duties. The examiner also stated that the Veteran's peripheral neuropathy of the bilateral upper extremities was not symptomatic and would not limit the Veteran's employment. Finally, she stated that the Veteran's hypertensive nephropathy and hypertension might limit employment that requires heavy physical exertion but would not limit employment requiring light or sedentary duties. Given that the Veteran was a machinist (not known for light duty), it would appear that this medical opinion provides some evidence in support of this claim. The Veteran had a VA examination for PTSD in October 2009. The examiner reviewed the claims file and noted that the Veteran's GAF score for the past year was 55. The Veteran reported that he was a machinist for 35 years and would still be working if he had not been laid off. Despite his assertion, he said machinists are required to stand and that he can no longer stand due to his legs and ankles. Thus, he can no longer work as a machinist. The Veteran said he was laid off from his employment in 2004 due to his irritability and inability to control his anger. He also stated that his continued anxiety, hypervigilance, and insomnia affect his ability to participate in social activities. Because the Veteran did not specifically indicate that his PTSD symptoms would or could interfere with possible employment, the examiner concluded that, physical disabilities aside, the Veteran could work. At a September 2005 VA examination for DMII and related disabilities, the Veteran reported that he was unable to drive or sit for long periods of time due to foot pain and lower extremity swelling. He said he experiences pain after walking about one half of a block. At a September 2005 VA PTSD examination, the Veteran reported that he had worked as a machinist for 35 years and was fired due to a shoving match with a coworker. He noted that there were other factors leading to his dismissal, but he did not elaborate. The Veteran said that based solely on his psychological problems, he would not be able to work. The examiner opined that the Veteran's poor concentration might make his ability to be gainfully employed more difficult. In the diagnosis, the examiner assigned a GAF of 50, which indicates serious symptoms or impairment in social or occupational, and stated that the Veteran is unable to work or keep a job. Both VA examiners reviewed the claims files in conjunction with the examinations. Other VA outpatient treatment records and SSA records show that the Veteran has difficulty standing and walking. Records also show that the Veteran has a high school education. The Board also considered the Veteran's statements. Specifically, the Veteran stated in his substantive appeal that he was fired from his last full time job due to his inability to perform his job duties. He stated that he is still unable to work. In his notice of disagreement, the Veteran stated that he had problems with anger management at his last job and continues to have low self esteem and lack of interest in things. He also stated that due to the service-connected neuropathy in his legs, he can no longer walk any distance because of the pain. He said he cannot return to work as a machinist as the job requires him to remain on his feet. As noted above, the Veteran need not be a total 'basket case' before finding that he is unable to engage in substantial gainful employment. Timmerman, 510 F.2d at 442. Here, the Board finds that while each individual service-connected disability may not render the Veteran unable to work, his service-connected disabilities as a whole severely impact his ability to maintain substantial gainful employment. As noted above, the Veteran has a total disability rating of 80 percent and his physical disabilities prevent him from engaging in work requiring heavy physical exertion or substantial periods of time on his feet. As noted in the VA PTSD examinations, the Veteran has anger management and concentration problems. VA examiners have stated that the Veteran can engage in employment requiring light or sedentary duties; however, considering the Veteran's 35 year history as a machinist, his high school education, his lack of training in other fields, and his psychological challenges, which are defined by a GAF score of 50 to 55, the Board finds that the Veteran is not realistically able to find and maintain substantially gainful employment. Giving the Veteran the benefit of the doubt, the Board finds that TDIU is warranted. The appeal is granted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER TDIU is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs