Citation Nr: 1126782 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 09-48 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, appellant's daughter and appellant's grandson ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from October 1942 to April 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2011, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence is in equipoise as to whether the Veteran is unable to obtain and sustain a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants a TDIU, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. The Veteran claims that he is unemployable secondary to his service-connected disabilities. He specifically claims that he has not been able to work due to the severity of his service-connected post-traumatic stress disorder (PTSD) and his service connected bilateral defective hearing. He relates that, when he was a farmer, he had difficulty hearing farm equipment. He also claims that his PTSD is also a factor. These disorders are the basis for the Veteran's claim. At a hearing before the undersigned in April 2011, the Veteran testified that he last worked in the 1980's as a farmer. He stated that he was not able to hear any farming machinery or any livestock and that he could no longer perform his job. He stated that the only job he has ever done in his life was farming. 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 service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The 60 and 40 percent requirements are met if (1) the disabilities are of one or both upper extremities or lower extremities, (2) the disabilities result from common etiology or a single accident, (3) the disabilities affect a single body system, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is service-connected for bilateral defective hearing , evaluated as 80 percent disabling; PTSD, rated as 50 percent disabling; and tinnitus, rated as 10 percent disabling; as well as for bilateral otitis media and hepatitis, both rated as noncompensable. The Board notes, the Veteran's combined rating is 90 percent. Consequently, the Board finds that, the Veteran meets the schedular criteria for a TDIU in that he has at least one disability rated 40 percent disabling with a combined rating in excess of 70 percent. The RO has continued to deny his claim, however, finding that, although limited, he is not unable to secure and follow a substantially gainful occupation due to service-connected disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the Veteran's education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). After considering all the evidence, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities are of such severity as to make him unable to secure or follow a substantially gainful occupation. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The evidence of record establishes that, the Veteran has a high school education and an employment history of essentially working as a farmer. It is noted that on VA outpatient treatment in January 2004, he reported having worked as a farmer since his discharge from service until he retired in the early 1980's. He reported having intrusive nightmares, sleep problems, hypervigilance, suppression of memories, difficulty with psychological intimacy with his wife, irritability and depression. PTSD was diagnosed and a GAF of 45 was assigned. Treatment continued with similar complaints and findings. On VA examination in January 2007, the Veteran was noted to be taking anti-depressants. He reported having anxiety, irritability and sleep problems. The examiner noted increased symptoms of PTSD and depression. His mood was agitated and his sleep problems were noted to have increased. There were homicidal thoughts. PTSD was diagnosed and a GAF of 65 was assigned. The examiner stated there was no total occupational and social impairment due to PTSD. On VA audiometric examination in November 2006, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 85 80 100 LEFT 45 55 80 80 90 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 52 percent in the left ear. Moderate to profound hearing loss bilaterally was diagnosed. The Veteran underwent a VA audiology examination in September 2009. On the audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 85 85 105 LEFT 50 60 85 85 90 Speech audiometry revealed speech recognition ability of 32 percent in the right ear and of 48 percent in the left ear. The examiner diagnosed moderate to profound bilateral hearing loss. The examiner stated that the Veteran's bilateral hearing loss and his tinnitus do not prevent him from securing or maintaining gainful employment. On VA gastrointestinal examination in September 2009, it was noted that his hepatitis was stable with no treatment. Abdominal examination was normal. Hepatitis was diagnosed. The examiner stated that the Veteran was able to work despite the diagnosis of hepatitis when he was younger and he has not had a recurrence. She stated that at age 88 he was not seeking any type of employment so the request for TDIU in a retired person at age 88 is a moot point. She cited various medical texts and opined that it is less likely that the Veteran meets the criteria to be considered incapable of seeking and maintaining gainful employment solely on medical reasons of hepatitis. On VA mental health examination in September 2009, it was noted that the Veteran takes medication for depression and for sleep problems. He reported having irritability, and sleep problems including nightmares. The examiner reported that the Veteran had inappropriate behavior including irritability. PTSD, chronic was diagnosed and a GAF of 65 was assigned. The examiner said that the Veteran is not unable to obtain and hold gainful employment due to his service-connected PTSD. The rationale was that the Veteran retired from farming sometime in the 1980s and was eligible by reason of age and duration of work. He went on to say that he would not be employable now but this is due to his advanced age and is not due to his PTSD. He went on to report that the Veteran's level of impairment for PTSD does not rise to the level that would by itself prevent him from working if he were otherwise young enough and able to do so physically. The Veteran, his daughter and his grandson testified before the undersigned in April 2011. Due to his hearing disability, his witnesses offered the majority of testimony for him. It was indicated that in the 1980's the Veteran was unable to hear any machinery or livestock. It was stated that the Veteran obsesses about things he sees on television related to combat and that he is compulsive. The Board acknowledges that the medical evidence does not clearly state that the Veteran's service-connected disabilities render the Veteran to be unable to obtain or sustain a substantially gainful occupation. However, reading the evidence in the light most favorable to the Veteran, the Board finds that it does raise a reasonable doubt that the Veteran's service-connected disabilities taken as a whole cause him to be totally unemployable. The Board notes that the VA mental health treatment records have varied as to the GAF to be assigned, ranging from 45 to 65. A GAF score is highly probative as it relates directly to an individual's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Even though the September 2009 VA examiner only gave a GAF score of 65 which reflects moderate symptoms, the Board notes that the Global Assessment of Functioning scale reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Here the Veteran has been assigned various GAF scores ranging from 45 to 65. GAF scores ranging from 41 to 50 reflect serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). There is no question that the GAF score and interpretation of the score are important considerations in rating a psychiatric disability. See, for example, Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, need not dispositive of the evaluation to be assigned; rather, the GAF score is to be considered in light of the actual symptoms of the disorder, which provide the primary basis for the rating to be assigned. See 38 C.F.R. § 4.126(a). The evidence recorded in the file does not support a finding that a GAF of 65 is appropriate. The Veteran takes multiple medications for his PTSD and has for many years. He has chronic sleep problems and nightmares with documented inappropriate behavior including anger and irritability. Further the September 2009 examiner's rationale was lacking in specificity as to why the PTSD symptoms would not prevent employment. Additionally, as for the Veteran's service-connected hearing loss, the Board notes that the September 2009 VA examination makes it clear the Veteran his severe limitations due to this service-connected condition. In fact, the examiner stated that this condition was moderate to profound. This has also been found on previous evaluation of his hearing loss. The Board finds the examiners' use of the word "profound" to be significant in determining the extent of the impact of the Veteran's disability on his employability. Furthermore, the Board notes that the examiner did not indicate any rationale for her finding that the Veteran was not unemployable due to his bilateral defective hearing, that has been rated as 80 percent disabling. The Board, therefore, finds this evidence raises a reasonable doubt that the Veteran's service-connected bilateral defective hearing disability causes him to be unable to obtain or sustain a substantially gainful occupation. Furthermore, the Board notes that, given the Veteran's employment background, it is hard to imagine that he would be able to find work that would accommodate his disabilities, which include profound defective hearing and PTSD. Such limitations most likely preclude the Veteran from obtaining any employment in industries such farming which is the only type of employment that he has had. Furthermore, even though the Veteran has a high school education, there appears to be deficits that, when combined with complications from his service-connected disabilities, suggest that it would be very difficult for him to find work. In this regard, the Board notes that the hearing testimony of the Veteran clearly shows a significant deficiency in hearing as shown by his need to have his daughter and grandson there to interpret and to speak for him. This lack of hearing and subsequent inability to effectively communicate combined with his service-connected PTSD, make it difficult to imagine that he could perform any type of employment. Thus, taken as a whole, the Board finds that the evidence raises a reasonable doubt that the Veteran is unable to obtain or sustain a substantially gainful occupation. The evidence is, therefore, in equipoise. As the Board must resolve all reasonable doubt in favor of the Veteran, it concludes that entitlement to a TDIU is warranted, and the Veteran's appeal is granted. ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to controlling regulations governing the payment of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs