Citation Nr: 1313582 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 06-18 108 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from August 1971 to February 1974. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision that implemented a November 2005 Board decision granting service connection for PTSD. The RO assigned an 10 percent evaluation, effective from June 22, 2002, and the Veteran subsequently perfected an appeal to the initial rating. By rating action in April 2006, the RO granted an increased rating to 30 percent for PTSD; effective from February 7, 2006. In June 2008, the Board found that the rating criteria for an evaluation in excess of 10 percent prior to, and to an evaluation in excess of 30 percent from February 7, 2006 had not been met, and denied the Veteran's claim for an increased rating. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a May 2010 joint motion for remand (JMR), the Court vacated the June 2008 Board decision and remanded the matter for compliance with the terms of the JMR. The joint motion also found that a claim for TDIU was reasonably raised by the record, but was not address in the June 2008 Board decision, and remanded the issue for appropriate development. In January 2011, the Board granted an increased rating to 70 percent for PTSD; effective from June 22, 2002, the date of the Veteran's claim, and remanded the issue of entitlement to TDIU for additional development. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include PTSD; rated 70 percent disabling, tinnitus; rated 10 percent disabling, and defective hearing, rated noncompensably disabling. The combined rating is 70 percent. 2. The Veteran reportedly has a GED, and has occupational experience as an electrician; he reportedly last worked full-time in 1994. 3. The Veteran's service-connected PTSD is shown to preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this decision, the Board grants the claim for TDIU. As this represents a complete grant of the benefit sought on appeal, no further discussion of VA's duty to notify and assist is necessary. Laws & Regulations Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012); see also 38 C.F.R. §§ 3.340, 3.341. However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Analysis In the instant case, the Veteran does meet the schedular criteria for a total disability rating based on individual unemployability. The Veteran's service-connected disabilities include PTSD, rated 70 percent disabling, tinnitus; rated 10 percent disabling and defective hearing, rated noncompensably disabling. The combined rating is 70 percent. Therefore, he does meet the threshold requirements for a TDIU. However, the Board must also determine whether such disabilities preclude substantially gainful employment. At this point, the Board notes that the Veteran's medical picture is complicated by the fact that he has several service- and nonservice-connected disabilities, including degenerative disc and degenerative joint disease of the neck and low back, and psychotic symptoms due to drug abuse unrelated to his PTSD, all of which impact negatively on his potential for gainful employment. For purposes of entitlement to TDIU, however, the Board may only consider those disabilities which are service-connected. The favorable evidence of record includes statements from two VA examiners (a psychologist and a staff physician), a VA clinical nurse specialist, a VA social worker, and a private psychologist, to the effect that the Veteran was unemployable due to his PTSD. Although the VA psychologist in February 2006 questioned the validity of the diagnosis of PTSD, he opined that if the alleged stressors were confirmed, then the Veteran was totally incapable of social and occupational functioning. In August 2006, a VA treating physician opined that the Veteran's psychiatric issues, including severe PTSD with concurrent depression and paranoia rendered him totally and completely disabled. The clinical nurse and a treating social worker also opined that the Veteran was totally disabled due to his PTSD. (See February 2007, and November 2008 medical statements). A report from a private clinical psychologist, dated in February 2013, was to the effect that the Veteran's psychiatric disorders, including PTSD, paranoid schizophrenia and polysubstance abuse rendered him unemployable in any capacity for the foreseeable future. Conversely, the evidence against a finding of TDIU, includes opinions from two VA psychologists to the effect that the Veteran was not totally disabled due to PTSD. A VA psychologist in October 2007, also questioned the validity of the diagnosis of PTSD, and opined that, the diagnoses notwithstanding, the Veteran's PTSD only contributed, at most, one third of his overall social and occupational dysfunction. Similarly, the VA examining psychologist in May 2011 (see also, addendum report dated in July 2011), opined that the Veteran's PTSD was not severe enough to render him totally disabled. The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Given the positive and negative medical evidence, the benefit-of-the-doubt rule is applicable. The evidence regarding the Veteran's employability secondary to his service-connected PTSD is in relative equipoise. As stated, there are medical providers who opine that the Veteran is unemployable as a result of his PTSD and there are medical providers who opine that the Veteran is not unemployable as a result of his PTSD, rather is unemployable as a result of his psychosis due to substance abuse. In the absence of clinical evidence that clearly distinguishes the Veteran's PTSD from his other psychiatric disorders, such matter is resolved in the Veteran's favor. Mittleider v. West, 11 Vet. App. 181 (1998). There are also reports of possible malingering by the Veteran within the claims file. While such reports are acknowledged, the Board has also considered the reports which note that the Veteran's behavior is somewhat consistent with his mental disability. See November 2008 Treatment Summary and February 2013 private psychological evaluation report. Therefore, resolving all reasonable doubt in favor of the Veteran, a total disability rating based on individual unemployability due to service-connected disability is granted. ORDER Entitlement to TDIU is granted, subject to VA law and regulations governing to the payment of monetary benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs