Citation Nr: 1044707 Decision Date: 11/30/10 Archive Date: 12/03/10 DOCKET NO. 04-03 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from July 1969 to March 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) San Diego, California, Regional Office (RO), which denied the benefit sought on appeal. A hearing was held before the undersigned Veterans Law Judge in July 2007. A transcript of the hearing is in the record. In October 2009, the Board remanded the case for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran is unable to secure and follow a substantially gainful occupation by reason of the service-connected psychiatric disorder, to include posttraumatic stress disorder. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2009); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Under the VCAA, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In light of the favorable decision for the Veteran in this case, no further discussion of VCAA is necessary at this point. TDIU may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent, when it is found that the service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Unemployability associated with advancing age or intercurrent nonservice-connected disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19. Factors to be considered are the Veteran's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). If there is only one service-connected disability, the disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). Service connection is currently in effect for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), rated as 70 percent disabling. Therefore, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to TDIU. The Veteran's ability or inability to engage in substantial gainful activity must be examined in a practical manner, and the thrust is whether a particular job is realistically within the physical and mental capabilities of the appellant. Moore v. Derwinski, 1 Vet. App. 83 (1991). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a Veteran's earned income does not exceed the amount established by the United States 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, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342 (2000). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also determined that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation. 38 C.F.R. § 4.16(b); VAOPGCPREC 75-91, 57 Fed. Reg. 2317 (1992). For a Veteran to prevail on a claim for TDIU, the record must reflect some factor, which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). If total industrial impairment has not been shown, VA is not obligated to show that a Veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. Gary v. Brown, 7 Vet. App. 229 (1994). VA medical records show treatment for PTSD, along with complaints of violent dreams, irritability, depression, hyper-reactivity, intrusive recollections, social isolation, avoidance, intrusive thoughts, and depression. The evidence shows intermittent periods of employment and unemployment, with most jobs lasting a few months. The Veteran's Global Assessment of Functioning (GAF) scores ranged from 30 to 50. See the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV) (providing that a GAF score of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job); and a GAF from 31 to 40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family and was unable to work)). At a hearing held in July 2007, the Veteran reported being employed as a driver. He related working approximately 3 different jobs in the preceding year. For the most part, these jobs did not require him to interact with other people. The Veteran testified that he had worked a variety of jobs in the past, to include as a driver, a telemarketer, and in maintenance. He had been terminated from most of these jobs due to his inability to control his anger. An August 2007 statement from a former employer noted that the Veteran had been terminated from his employment due to his poor attitude and unwillingness to work with fellow coworkers. The Board finds that the competent medical evidence supports a finding that while the Veteran is able to obtain employment, his service-connected psychiatric disorder prevents him from remaining gainfully employed. In correspondence in July and November 2007, the Veteran's treating psychologist and psychiatrist noted that despite being advised against working, the Veteran had attempted to work full- time and part-time jobs because he could not afford to live independently. The clinicians opined that while the Veteran had been able to acquire gainful employment, he was not able to retain employment due to his PTSD. In August 2008, the Veteran underwent a VA PTSD examination by 2 physicians, Dr. L.B. and Dr. M.C. On examination, the Veteran reported irritability, trouble holding jobs and difficulties with relationships. He estimated that he worked about six months that year. He had been driving a shuttle bus, but had a minor accident and got fired. He stated that he had about 30 jobs since he got out of service, mostly being a driver or cashier. The examination report noted no educational accomplishments. The Veteran related trouble dealing with people. He had a girlfriend several months and they were living together, but they broke up. He stated that he had a grown son, but their relationship was not good. The Veteran said that he did not see his grandchildren and did not have any friends. He reported that he gave up alcohol and drugs three years earlier. The examiners opined that the Veteran's PTSD was relatively severe and certainly persistent. It was associated with significant occupational and social and relationship dysfunction. It was noted that his work performance was a constant problem and his relations fell apart. The Veteran had lost many jobs. His primary problem with working was irritability. He had trouble getting close with other people and sharing his life due to PTSD. The examiners found that PTSD caused deficiencies in most areas of work and family relations. His assigned GAF score was 45. The Board notes that an earlier examination in March 2006 contained similar information, and recorded a GAF score of 40. In November 2009 VA obtained addendum reports from Dr. L.B. and Dr. M.C. to assess the effect of the Veteran's service-connected disability on his employability. Dr. L.B. opined that while the Veteran seemed relatively adept at obtaining jobs, he had difficulty retaining employment due to PTSD. Dr. L.B. noted the Veteran's employment history of approximately 30 jobs since service discharge and on-going periods of unemployability of up to 6 months at a time. Accordingly, Dr. L.B. stated that he supported the Veteran's claim for unemployability based on his PTSD and disastrous work history. Similarly, Dr. M.C. concluded that the Veteran was at least as likely as not unable to secure or maintain substantially gainful employment as a result of his service-connected PTSD. In support of his opinion, Dr. M.C. noted continued symptoms of PTSD, to include inability to get along with others and extreme levels of irritability, despite the Veteran's sustained sobriety of over 3 years. It is important to point out at this juncture that it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 4.3. Given the evidence as outlined above, the Board finds that at the very least the preponderance of the evidence supports the Veteran's claim that he is unable to secure and follow a substantially gainful occupation by reason of his service- connected psychiatric disorder, to include PTSD. This finding takes into account the Veteran's educational and employment history. Thus, the evidence is such that reasonable doubt may be resolved in favor of the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore a total disability rating is allowed pursuant to 38 C.F.R. § 3.340. ORDER TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs