Citation Nr: 0814768 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-30 391 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (T/R). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from December 1966 to April 1975. This appeal to the Board of Veterans Appeals (Board) arises from a December 2004 rating action that denied a T/R. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The veteran's service-connected disabilities consist of a post-traumatic stress disorder (PTSD), evaluated as 50% disabling; diabetes mellitus (DM), evaluated as 20% disabling; hearing loss and tinnitus, each evaluated as 10% disabling; and residuals of a left 5th finger fracture, assigned a noncompensable rating. 3. The percentage ratings for the veteran's service- connected disabilities meet the minimum schedular criteria for the grant of T/R, and those disabilities prevent him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for the grant of T/R have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially-complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In view of the favorable disposition of the claim for a T/R, the Board finds that all notification and development action needed to render a fair decision on the claim on appeal has been accomplished. II. Analysis Under the applicable criteria, total disability ratings for compensation based on 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% or more, or as a result of 2 or more disabilities, provided at least 1 disability is ratable at 40% or more, and there is sufficient additional service-connected disability to bring the combined rating to 70% or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). In this case, the veteran's service-connected disabilities consist of PTSD, evaluated as 50% disabling; DM, evaluated as 20% disabling; hearing loss and tinnitus, each evaluated as 10% disabling; and residuals of a left 5th finger fracture, assigned a noncompensable rating. The combined disability rating is 70%. He thus meets the minimum percentage requirements for a T/R under 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that a T/R may not be granted unless a veteran is unable to secure and follow a substantially gainful occupation by reason of such service- connected disabilities. The central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his age or the impairment resulting from non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet App. at 363. In this case, the objective evidence shows that the veteran's combined service-connected psychiatric and physical disabilities prevent him from securing and following any substantially-gainful employment. October 2003 VA examination showed that the veteran experienced a 38-pound weight loss over the past several months from 235 to 197. August 2004 VA general medical examination revealed a 50-pound weight loss from 230 to 183 over the last year, and the physician opined that it was unlikely that the veteran would be able to have any significant employability because of his multiple medical problems including DM. In May 2005, a VA physician stated that the veteran's DM required insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. August 2004 VA audiological examination showed a sloping mild to severe high frequency sensorineural hearing loss. Following October 2003 VA psychiatric examination, the diagnosis was chronic PTSD with depressive symptoms, and a Global Assessment of Functioning (GAF) score of 50 was assigned, reflecting serious symptoms related to the veteran's combat experiences in Vietnam, accompanied by depressive symptoms and serious impairment in social functioning. On August 2004 VA examination to evaluate the veteran's PTSD, he complained of irritability, daily nightmares, intrusive memories, anger outbursts, difficulty concentrating, and problems with social functioning. He last worked in January 2002, and was now on disability retirement due to medications. He reported verbal confrontations and conflicts with supervisors, and having lost his job due to PTSD. The PTSD was also noted to have had a negative impact on his marital relations: he no longer slept with his wife due to his nightmares and irritability. On mental status examination, the veteran responded logically, but with some inappropriate behavior (problems with impulse control involving road rage) and memory impairment. He had had a panic attack in January that required hospitalization. He suffered from depression daily. Sleep was impaired, and he got only 2 to 3 hours of sleep per night, with violent nightmares. The diagnosis was PTSD, and a GAF score of 45 was assigned due to the PTSD, reflecting serious symptoms or impairment in social and occupational functioning. The doctor opined that the veteran's behaviors indicated that he was unable to keep a job. In view of the 2004 VA examiners' comprehensive and well- reasoned reports, and opinions that are supported by the clinical evidence of record, the Board finds that the veteran is unemployable due to his service-connected disabilities, thus meeting the criteria for the grant of a T/R. ORDER A total disability rating based on individual unemployability due to service-connected disabilities is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs