Citation Nr: 1307526 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-28 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for posttraumatic stress disorder, rated 50 percent, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). This matter was before the Board in June 2012 when it was remanded for additional development. FINDING OF FACT It is reasonably shown that the Veteran's service-connected posttraumatic stress disorder precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants entitlement to a TDIU rating, which constitutes a complete grant of the benefits sought on appeal as to that claim. Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claim. The Veteran contends that he is entitled to TDIU benefits. Based on the evidence of record, the Board finds that entitlement to a TDIU based solely on his service-connected PTSD is warranted. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities consist of the following: malaria, rated 0 percent disabling, effective since August 25, 1967; bilateral hearing loss, rated 0 percent disabling, effective since August 20, 2007; lumbosacral spine disorder, to include lumbar and sacral spine degenerative disc disease, without radiculopathy, rated 10 percent disabling, effective since August 20, 2007; and PTSD, rated 70 percent disabling, effective since September 26, 2007. Thus, the Veteran met the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16(a). On March 2008 VA PTSD examination, the Veteran reported that he was currently unemployed and the last time he worked was April 2007. He was driving a truck on a part-time basis. Previously, he worked for an airline loading bags for 22 years from 1967 to 1989. He then worked for a civil service for two years as a cleaner. And for the past 15 years he has worked as a truck driver. He indicated he had to quit because the job was getting too stressful. The examiner diagnosed the Veteran with PTSD and anxiety disorder with depressive symptoms secondary to the PTSD. The examiner opined that due to the severity of the Veteran's symptoms, he would need further rehabilitation and improvement or he would not be able to maintain gainful employment in the foreseeable future. On March 2011 VA PTSD examination, the Veteran reported that he gets into altercations with co-workers because he has a terribly violent temper and can be easily provoked. The examiner found the Veteran's symptoms include disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner further found the Veteran's PTSD was best characterized as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. However, the examiner opined that the Veteran's PTSD had no impact on his ability to work, noting that he has been employed full-time as a truck driver for the past 19 years. In June 2012, the Board remanded the matter for additional development in light of the evidence above suggesting marginal employment, to include a VA examination to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, alone or in the aggregate. On October 2012 VA examination, it was noted that the Veteran's education/training included a high school degree and trade school for truck driving. The examiner diagnosed the Veteran with degenerative disc disease of the lumbosacral spine, and found that such caused mild functional limitations with employment, and diagnosed him with malaria which had resolved and caused no functional limitations with employment. Based on these service-connected physical conditions, his education level, special training, and work experience, the examiner opined that it was at least as likely as not that the Veteran would be able to secure or follow a substantially gainful occupation as he is capable of sedentary and light duty employment if he so chooses. In addition, the Veteran was also diagnosed with bilateral sensorineural hearing loss. He reported difficulty communicating with others due to his hearing loss, especially understanding speech if there is background noise. He related he often has to have things repeated, and that he cannot use hearing aids all the time because his job is so noisy and he is required to wear ear plugs/ear muffs. The examiner noted that when the Veteran's hearing is aided (by hearing aids), the functional impairment of his hearing loss is minimal. Based on the reported symptomatology, the examiner opined that although his hearing loss should not preclude his ability to function in physical and sedentary occupations, it could impair his ability to function in physical and sedentary occupations, and could impair his ability to communicate effectively with those around him. In addition, during the psychiatric examination aspect of the VA examination, the Veteran reported that he went from part-time to full-time as a truck driver approximately four years prior to spend more time with his wife, as such created a predictable work schedule as opposed to a part-time schedule where he could be called upon at any time. He related that he stopped working the week before though because of difficulties he was having at work due to his service-connected PTSD. After examination of the Veteran, the examiner found there was total occupational and social impairment due to PTSD. Although the examiner ultimately found the Veteran was not unemployable, as the Veteran reported he could not continue his most recent employment due to his PTSD symptoms, it was concluded that total occupational and social impairment due to PTSD was indicated. In November 2012 correspondence, the Veteran's spouse related that the Veteran has gotten worse with his inability to control his anxiety, mood swings, depression, and anger problems. His problems have interfered with his ability to work to the point that he can no longer function. Due to increased difficulties he was having at work, the Veteran and she decided it would be safest if he resigned. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), that the evidence supports the Veteran's service-connected PTSD prevents him from securing or following substantially gainful employment. Significantly, on October 2012 VA examination, it was noted that the Veteran's PTSD was reflected by total occupational and social impairment. Thus, the Board finds, in combination with various lay statements submitted in support of his claim by former co-workers and his spouse, and in light of his employment experience and educational background (i.e., at most, one year of college, and truck-driving school), the totality of the evidence sufficiently reflects that the Veteran's PTSD is of such a severity that he would be unable to secure or follow a substantially gainful occupation. In sum, the Board finds that the evidence shows the Veteran is entitled to an award of a TDIU rating. Hence, entitlement to TDIU is warranted. ORDER TDIU is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs