Citation Nr: 1112448 Decision Date: 03/29/11 Archive Date: 04/07/11 DOCKET NO. 03-36 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January 1980 to January 2000. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina, initially addressed as a request for an increased evaluation for a psychiatric disorder. Jurisdiction of the claims folder was subsequently transferred to the Montgomery, Alabama, RO. In its February 2010 decision, the Board indicated that the Veteran had contended that he was unemployable and the Board found that this raised the issue of entitlement to a TDIU as an element of the claim for the increased rating issue on appeal. As such, the Board added the issue to the title page of the decision. The Board remanded the issue at that time for further development, to include a VA examination to determine the Veteran's employability. The requested development has been accomplished and the matter is now ready for appellate review. FINDINGS OF FACT 1. Service connection is currently in effect for posttraumatic stress disorder (PTSD), rated as 70 percent disabling; sleep apnea, rated as 50 percent disabling; chronic back condition, lumbar spine, with limitation of motion and pain, rated as 10 percent disabling; allergic rhinitis, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; residuals of a left ankle injury, rated as 10 percent disabling; pseudofolliculitis barbae, rated as 10 percent disabling; onychomycosis of the feet, rated as noncompensable; and erectile dysfunction associated with hypertension, rated as noncompensable. The combined total disability evaluation is 90 percent. 2. The Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION TDIU Pertinent regulations provide that total disability 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, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Veterans who fail to meet these percentage standards but are nonetheless unemployable by reason of service-connected disabilities may still be rated as totally disabled. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, the appellant's non-service-connected disabilities and advancing age cannot be considered. 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 constitutes recognition that the impairment makes it difficult to obtain and keep employment. The 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. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is currently in effect for PTSD, rated as 70 percent disabling; sleep apnea, rated as 50 percent disabling; chronic back condition, lumbar spine, with limitation of motion and pain, rated as10 percent disabling; allergic rhinitis, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; residuals of a left ankle injury, rated as 10 percent disabling; pseudofolliculitis barbae, rated as 10 percent disabling; onychomycosis of the feet, rated as noncompensable; and erectile dysfunction associated with hypertension, rated as noncompensable. The combined total disability evaluation is 90 percent. As noted above, the Board inferred the issue of a TDIU based upon the Veteran's contentions that he was unemployable due to his service-connected psychiatric disorder. Social Security records received in conjunction with the Veteran's claim reveal that he was found to be disabled as of June 12, 2006, due to a primary diagnosis of affective and mood disorders and a secondary diagnosis of anxiety related disorders. Treatment records received in conjunction with the Veteran's claim reveal that at the time of an August 2005 private examination, the Veteran was diagnosed as having PTSD and major depression with a Global Assessment of Function (GAF) score of 35 being assigned. The examiner indicated that the Veteran had a serious psychiatric syndrome. At the time of a December 2006 VA examination, the Veteran was diagnosed as having PTSD with a GAF score of 48 being assigned at that time. A diagnosis of PTSD and GAF score of 48 was also assigned at the time of a May 2007 VA examination. The Veteran was noted to have lost his security clearance due to his anxiety symptoms. In an April 2009 report, the Veteran's private physician, D. Moyerman, Ph.D., indicated that the Veteran's condition had worsened over the past 42 months. The Veteran was also noted to have lost his job three years ago because of impaired judgment. Dr. Moyerman stated that if the Veteran was subjected to occupational stress, he would be severely impaired in his ability to refrain from hurting someone in the work place. The Veteran was also noted to be too unstable for vocational rehabilitation. At the time of a July 2009 VA examination, Axis I diagnoses of PTSD and major depressive disorder were rendered. The examiner assigned a GAF score of 48. The examiner noted that as it related to work, the Veteran struggled with irritability, impatience and social deficits. The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2009). GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). 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). A GAF score of between 31 and 40 contemplates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) 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 is unable to work). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). As demonstrated above, the majority of the Veteran's GAF scores are in the 41-50 range, which contemplates an inability to keep a job and serious symptoms. In conjunction with the Board's February 2010 remand, the Veteran was afforded a VA examination in October 2010. The examiner did not address the Veteran's psychiatric disorders observing that he had been evaluated for these in the recent past. The examiner noted that the Veteran had last worked in 2006. He reported that the Veteran had previously been in civil service at Fort Gillem in Atlanta for four years in the Operations Center, Primary Emergency Management. He noted that the Veteran needed clearance but could not get the clearance due to mental illness. With regard to the physical disabilities, the examiner noted that the Veteran had degenerative disc disease, L5-S1, which caused mild to moderate impairment. He observed that the Veteran's chronic rhinosinusitis and nasal septum deviation had no impact on his employability. He also reported that the Veteran's essential hypertension had no impact on his employability. With regard to sleep apnea, the veteran was noted to be on a CPAP machine. As to the left ankle, the examiner indicated that this had mild employment impact. The examiner stated that based upon the Veteran's service-connected conditions, he would not be able to perform jobs that would require heavy lifting, prolonged walking, or prolonged standing. Based upon the above, the Board finds that the Veteran is unable to hold a job requiring interaction with others or one which results in stressful situations due to his service-connected psychiatric disorders. The Board also observes that the Veteran's service-connected physical disabilities have been found to preclude him from performing employment which would require lifting, prolonged walking, or standing. As such, the Board finds that the Veteran is precluded from securing and following gainful employment based solely upon his service-connected disabilities, namely his PTSD, sleep apnea, chronic back condition, lumbar spine, and residuals of a left ankle injury, consistent with his education and occupational experience. Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, further assistance is not required to substantiate that element of the claim. ORDER Entitlement to TDIU is granted. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs