Citation Nr: 1237207 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-14 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied entitlement to a TDIU. The Veteran and his spouse testified at an RO hearing in March 2009. A copy of the hearing transcript has been associated with the claims file. This matter was previously remanded by the Board for further development in January 2011. That development has been completed, and the case returns to the Board for further review. The Veteran recently submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2011) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). FINDING OF FACT The Veteran meets the schedular criteria for TDIU; the competent and credible evidence of record is at least in equipoise as to whether the Veteran's service-connected disability prevents him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. § 4.16 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2011). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. TDIU A. Applicable Law It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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 such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this instance, service connection has been established for posttraumatic stress disorder (PTSD), rated as 70 percent. Therefore, the Veteran meets the schedular requirement for a TDIU. The record must reflect that circumstances, apart from nonservice-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. 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 is whether the Veteran, in light of his service-connected disability, 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). The evidence in this case includes Global Assessment Functioning (GAF) scores. Within the DSM-IV, scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Id. 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is 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., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. B. Evidence As part of his claim, the Veteran reported in September 2006 that he had previously worked as a fork lift operator for many years. He had worked 40 to 60 hours a week and had a peak earning level of $100,000.00 in 1999. He indicated that his disability affected full-time employment starting in July 2005, and he last worked in January 2006. The Veteran was afforded a VA examination for PTSD in January 2007. With respect to employability, the Veteran stated that he depended on his wife for most things. He had her drive him to work for awhile so that he knew how to get there. The Veteran's wife was also present, and stated that she drove him to work most of the time. The Veteran stated that his usual occupation was factory work. He retired in 2006. He reported taking retirement because he was tired of the long commute. He also described losing his temper at work, but denied absences or tardiness. The examiner stated that when the Veteran was working, there appeared to be mild to moderate impairment in functioning. Currently, the Veteran's PTSD symptoms would likely cause moderate impairment with occupational functioning. His GAF score was 46. The Veteran submitted a July 2007 statement in support of his claim. He stated that he was forced to take early retirement due to the exacerbation of his PTSD symptoms. He had been transferred to a plant in Kokomo, which meant that he spent several hours a week in transit to get to and from work. This resulted in increased anxiety, confrontations with other workers, and road rage. He stated that he could not handle the long hours on the road and took early retirement. The Veteran and his wife testified at an RO hearing in March 2009. He testified that he was transferred from a factory that was 14 miles away to a facility 142 miles away. This increased commute resulted in a severe exacerbation of his PTSD symptoms, including sleeplessness and anxiety. He had road rage and arguments at work. He stated that when he was first transferred, he relied on his wife to drive him to work for about two and a half weeks. When he started driving on his own, he would call his wife about 10 times a day, wondering if he was on the wrong road or wondering how to get to work. He felt he could not work anymore because he could not cope with people. With respect to education, the Veteran was a high school graduate, but stated that he struggled with school. He reiterated that he loved his job, but just could not handle it. The Veteran underwent an additional VA examination in February 2011. Of note, he reported that he blows up and would "fly off the handle" if people disagreed with him. Recent and remote memory were mildly impaired. He typically did not leave the home without a family member, and reported a history of road rage. The examiner stated that the Veteran was capable of managing his financial affairs. The Veteran reported that during his time at work, he performed well, was reliable, and got along with other veterans. He did not get along as well with civilians. After he was transferred, he had to start commuting 69 miles each way. He also had to start working with new people. He stated that the workers at the new location "hated the New Castle workers." He was offered a retirement package and took it. The examiner indicated that impairment was significant and impacted social functioning. With respect to employability, the examiner stated that there was likely mild impairment due to PTSD. His current symptoms did not preclude employment, but would likely result in impairment in a new position, working with people he did not know and pressure to learn a new job. However, the examiner concluded that it was less likely than not that current PTSD, alone, would render the Veteran unable to secure or follow a substantially gainful occupation. The Veteran's GAF score was 46. The Veteran underwent a private evaluation in March 2012. With respect to employability, the Veteran reported that he started experiencing extreme road rage at the end of his last job. He eventually took an early retirement due to being unable to handle the stress of the job and the people there. While working, the Veteran stayed to himself, and struggled to deal with his co-workers. He also admitted that going to work became more difficult because he was forced to leave the comfort zone of his home. He felt closed in at work and did not like his bosses telling him what to do. He expected his work to be satisfactory to his supervisors, and he became angry if they criticized his work. The Veteran's wife was present, and stated that if the Veteran returned to work, it would upset his routine and the feelings of safety he had in his "compound," or their home. The Veteran reported feeling paranoia that others in the workplace were talking about him. He felt that he could have harmed someone at work over the slightest issue. The treating physician assigned a GAF score of 38, and listed "occupational problems due to PTSD" in the Axis IV section of the diagnosis. C. Analysis Based on the evidence of record, the Board finds that a TDIU is warranted in this case. The Veteran meets the schedular criteria for TDIU during the appeal period, and the overall weight of the evidence is at least in equipoise as to whether the Veteran's service-connected PTSD precludes him from performing the physical and mental acts required by employment. The January 2007 and February 2011 VA examination reports stated that while the Veteran's PTSD resulted in mild to moderate occupational impairment, it did not preclude him from finding or maintaining substantially gainful employment. These opinions were collectively based on a review of the claims file, a history provided by the Veteran, and an examination. The Veteran's GAF score was 46 in both examinations. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). DSM-IV at 46-47. In contrast, the March 2012 private physician listed "occupational problems due to PTSD" in the Axis IV section of the diagnosis, and assigned a GAF score of 38. GAF scores ranging from 31 to 40 can reflect major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. This opinion was based on a history obtained from the Veteran, including an employment history, as well as an examination. According to the U.S. Court of Appeals for Veterans Claims (Court), "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, when viewed collectively with the Veteran's own statements regarding his difficulties at work and commuting to work, the Board finds the evidence to be in equipoise as to whether the Veteran's service-connected PTSD precludes him from performing the physical and mental acts required by employment. The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as losing his temper and getting lost. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. Therefore, resolving all doubt in the Veteran's favor, a TDIU is warranted in this case. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs