Citation Nr: 1204167 Decision Date: 02/03/12 Archive Date: 02/13/12 DOCKET NO. 07-23 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Chris R. Mancinone, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to July 1971 and from October 1990 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This issue was remanded by the Board in January 2010 and again in May 2011 and now returns for further appellate review. In September 2011, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is service-connected for status post lumbar disc surgery (low back disorder) rated as 40 percent disabling, PTSD, rated as 30 percent disabling, diabetes mellitus type II with diabetic neuropathy and proteinuria (diabetes mellitus), rated as 20 percent disabling, right lumbar radioculopathy associated with status post lumbar disc surgery (right lumbar radioculopathy), evaluated as 20 percent disabling, residuals of a right wrist fracture, evaluated as 10 percent disabling, tinnitus, rated as 10 percent disabling, and residuals status post hemorrhoidectomy (hemorrhoidectomy) and hearing loss, which are both rated as noncompensable. Since September 29, 2008, the service-connected disabilities are rated as 80 percent disabling. 2. The competent medical evidence shows that the Veteran's service-connected disabilities render him unable to perform all forms of substantially gainful employment that are consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Laws and Regulations 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 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). The Global Assessment of Functioning scale is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). 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). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis In its January 2010 remand, the Board found that a claim for TDIU had been raised by the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran claims that has been unable to work since he was fired from his position as a correctional facilities officer secondary to his inability to perform the physical and social duties of his position. The Veteran is service-connected for a low back disorder, PTSD, diabetes mellitus, right lumbar radioculopathy, residuals of a right wrist fracture, tinnitus, hemorrhoidectomy and hearing loss. Since September 29, 2008, the service-connected disabilities are rated as 80 percent disabling. He has a Master's Degree. In conjunction with the Veteran's TDIU claim, the Veteran was afforded a number of VA examinations and, in September 2011, he testified before the undersigned Veterans Law Judge. The Board finds that, taking the entirety of the evidence into consideration, the evidence of record for and against the Veteran's claim is at least in equipoise, and entitlement to TDIU is allowed. The Veteran's June 2010 VA examinations offer varying opinions as to whether he is able to secure or follow a substantially gainful occupation. The VA evaluation of diabetic neuropathy and lumbar disc disease reported that the Veteran had no neurologic deficits that would prevent employment. A VA examiner conducting the hearing and tinnitus examination reported that the Veteran's hearing loss did not preclude his employment but that he may experience some difficulty in settings relying heavily on spoken communication. In a VA examination of the joints report, the examiner opines that the Veteran's right wrist disorder would prevent manual labor but that he could possibly do sedentary work as far as the wrist was concerned. The VA examiner for mental disorders noted that the Veteran's poor concentration and lack of trust decreased his ability to work and that PTSD had a moderate impact on the his ability to be maintain substantially gainful employment. The VA examiner further stated, however, that PTSD by itself did not prevent the Veteran's gainful employment and that most of his functional disability was physical. The examiner provided a GAF score of 50. During his Travel Board Hearing, the Veteran testified that he had last worked in 2000 as a correctional facilities officer and that he was unable, physically and mentally, to perform the duties of his job. The Veteran explained that he employed the use of a wheelchair as he was unable to walk long distances without falling and that, due to his PTSD, he was unable to get along with others. As stated above, total disability ratings may be assigned where the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Significantly, it need not be shown that any one of the Veteran's disabilities prevents employment but, rather, service-connected disabilities may be taken as a whole in order to establish TDIU. In this case, the Veteran is shown to employ the use of a wheelchair and has stated that he was unable to the perform physical requirements of his job. The Veteran's VA examiner of the joints additionally has stated that his service-connected right wrist disorder precludes him from performing manual labor but that he could do sedentary work. On the other hand, the Veteran's PTSD VA examiner opined that his PTSD a moderate impact on his ability to sustain gainful employment and his GAF score of 50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. The Board finds that, considering the evidence as a whole, while no one medical professional has indicated that the Veteran is unable to sustain gainful employment, the Veteran is shown to be unable to perform manual labor and is shown to be substantially impaired, due to the problems associated with PTSD and difficulty hearing others, in his ability to perform sedentary work. When considered in the aggregate, the evidence suggests, to the point of at least being in equipoise, that the Veteran's service-connected disabilities render him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, entitlement to a total rating based on individual unemployability is in order. ORDER Entitlement to a total rating based on individual unemployability is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs