Citation Nr: 1307983 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-03 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to December 1970. He is a recipient of the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the RO in Waco, Texas. The Veteran appeared before the undersigned at a travel board hearing in July 2012. A transcript of the proceeding is of record. In July 2012, the Veteran submitted new evidence in support of his claim with a waiver of review by the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The Veteran last worked in 1987, as a welder. 2. The Veteran meets the schedular criteria for a 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 TDIU have been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1-4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants the Veteran's claim for TDIU. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Analysis In this case, the Veteran claims that he is unemployable due to his service-connected PTSD (rated 70 percent disabling). He is not service-connected for any other disability. A TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. "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). The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is no longer employed. He last worked in 1987, as a welder. Regarding his training and education, his DD-214 reflects that he is also trained as an armored reconnaissance specialist. He has offered sworn testimony that he has not considered retraining or reeducation for any additional field. Transcript [T.] page 6. He is in receipt of a 70 percent disability evaluation for PTSD. Hence, he meets the schedular criteria under 38 C.F.R. § 4.16(a) for consideration of TDIU. Therefore, the determinative issue is whether the Veteran is shown to be unable to secure and follow a substantially gainful occupation due to his service-connected PTSD. 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. 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). In this case, the Board finds that the evidence is at least in equipoise regarding the Veteran's inability to secure and follow a substantially gainful occupation due to his service-connected PTSD. Weighing in favor of the claim is a July 2012 letter from his regular treating VA psychologist, Dr. A., containing an opinion that the Veteran's PTSD, alone, renders him unemployable. The record reflects that Dr. A. has treated the Veteran for over 20 years. Dr. A. noted that the Veteran reported a long history of losing jobs due to his temper and irritability. Dr. A. also considered the Veteran's report that his last job was in 1987 and that he was laid off because he had a personality conflict with his manager. Dr. A. also considered the Veteran's report that prior to Vietnam, he was able to take constructive criticism but since his return from Vietnam, there is a right way and a wrong way to talk to him. She also considered his report that he could not return to his former occupation as a welder because he is too jumpy. Dr. A. noted that the Veteran experiences persistent PTSD symptoms including frequent nightmares about Vietnam events, intrusive recollections, intense anxiety and physiological reactivity when reminded of Vietnam situations. Dr. A. also noted that the Veteran has an overreaction to minor perceived threats or provocation, avoidance of crowds and noisy environments, avoidance of close relationships, emotional numbing with default to anger, extreme restless and fidgetiness, continual hypervigilance, chronic insomnia, exaggerated startle response, irritability with a long history of fight and arguments related to perceiving that others are threatening him in some way. Dr. A. continued that the Veteran is not able to maintain full-time employment or to work closely with others, work under ongoing supervision, or keep regular work hours due to his chronic and severe problems with insomnia, re-experiencing of Vietnam memories, irritability, and mistrust. Additionally, at his hearing before the Board, the Veteran reported many of the same symptoms that he reported to Dr. A. He also reported the same circumstances surrounding the end of his welding career in 1987. T. page 7. He reported that in 1988, he sought treatment for psychiatric problems and was diagnosed with PTSD. T. page 8. He reported frequent panic attacks depending on his surroundings and level of anxiety. T. pages 9-10. He has offered sworn testimony that since he stopped working in 1987, he has tried to obtain other employment but has not been offered a job. T. page 5. As noted above, he also reported that he has not considered returning to school for retraining or reeducation. T. page 6. The Veteran's wife also offered sworn testimony regarding her observations of the Veteran's symptoms including an incident that occurred on the way to the hearing. She reported that while they were driving to the hearing, she rolled her window down slightly and the Veteran immediately reacted to the noise, swerving across three travel lanes. T. page 10. She also reported an instance where they were shopping in a local store. Someone dropped a mirror and in response to the loud noise, the Veteran laid down on the floor. T. page 12. She also reported that he does not trust barbers and the only time he gets his hair cut or beard trimmed is when she does it herself while he watches car races. T. page 15. The Board finds the Veteran's and his wife's testimony regarding his PTSD symptoms to be both competent and credible. Private treatment records associated with the claims file also support the symptoms noted in the July 2012 evaluation report from Dr. A. as well as the symptoms reported at the hearing before the Board. Weighing against the Veteran's claim is a VA psychological examination report dated in May 2009. The May 2009 VA psychological examination report specifically noted that the Veteran's service-connected PTSD, by itself, did not render him unemployable. Instead, the VA examiner noted that the Veteran's legal problems have had the most significant impact on social relationships and his ability to find employment. The May 2009 VA psychiatric examiner also noted that there were a number of issues that affect his social and occupational functioning, not just PTSD. The examiner explained that the Veteran's core psychopathology is his antisocial personality disorder and that he shows little remorse or caring for others. The VA psychologist confirmed his May 2009 opinion in an August 2009 addendum opinion following review of the Veteran's claims file. The Board also acknowledges that in May 2009, the Veteran underwent a general medical VA examination in addition to the VA psychiatric examination. The May 2009 general medical VA examination report did not discuss the Veteran's service-connected psychiatric disability but noted that the Veteran was unemployable as a welder due to a nonservice-connected right eye disability. While the Board appreciates that the Veteran may have nonservice-connected disorders that would prevent him from working, the Board must only consider whether the Veteran's service-connected PTSD renders him unemployable. In this regard, the evidence is at least in equipoise given the July 2012 VA pyschologist's opinion. A veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail on a claim for benefits; entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by fair preponderance of evidence. Gilbert v. Derwinski, 1 Vet.App. 49 (1990) citing 38 U.S.C.A. § 3007(b). In light of the Veteran's schedular eligibility for TDIU under 38 C.F.R. § 4.16(a), his and his wife's competent and credible descriptions of his current symptoms and limitations associated with his service-connected PTSD, the positive and negative medical opinion evidence currently of record, as well as the Veteran's limited education and special training, the Board finds that the evidence of record for and against the Veteran's TDIU claim is at the very least in relative equipoise. When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs