Citation Nr: 1311671 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-17 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a TDIU. In an August 2006 rating decision, the RO raised the issue of entitlement to a TDIU as the Veteran had met the schedular criteria for entitlement to a TDIU under 38 C.F.R. § 4.16(a) (2012). The Veteran was informed in this decision that he met the schedular criteria for a TDIU and that he would be provided a letter informing him of the statutory requirements in order to establish entitlement to a TDIU. The rating decision also informed the Veteran that if he wished to apply for these benefits, he should complete and return the VA form 21-8940, Application for Increased Compensation Based on Unemployability, enclosed with the information letter. A letter was provided to the Veteran in August 2006 informing him of the statutory requirements in order to establish entitlement to a TDIU. After receiving no response to the August 2006 letter and no VA form 21-8940 from the Veteran, the RO denied the claim for entitlement to a TDIU in a December 2006 rating decision. In November 2007, the Veteran submitted a claim for entitlement to a TDIU, via a VA form 21-8940. This claim was denied by the RO in March 2008. The Veteran perfected an appeal on this claim. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in September 2012. A transcript of that hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. FINDING OF FACT Affording the Veteran the benefit of the doubt, his service-connected PTSD has prevented him from securing and following substantially gainful employment. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for the award of a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Pertinent Laws and Regulations 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 (2012). 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 (2012). "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. Analysis In November 2007, the Veteran filed his Application for Increased Compensation Based on Unemployability, VA form 21-8940, wherein he maintained that the evidence of record establishes that he had been unable to maintain gainful employment during the pendency of this claim due to his service-connected PTSD. VA outpatient treatment reports from December 2005 to July 2012 reflect that the Veteran's GAF scores ranged from 55 to 63. He reported having symptoms of worsening anger and lashing out at people in January 2006. In March 2006 he reported having poor concentration at both work and at home. In a July 2006 VA examination, the Veteran was diagnosed with PTSD and major depressive disorder, recurrent. He was assigned a GAF score of 35. The Veteran's reported symptoms included anger, depression, nightmares, anxiety, poor concentration, flashbacks, irritability, poor sleep, low energy, chronic feelings of guilt, and occasional thoughts of death, but no suicidal thoughts. Symptoms occurred constantly. The effects of these symptoms upon the Veteran's total daily functioning included difficulty getting along with coworkers and his wife and he had an unstable relationship with his son. The Veteran reported a history of poor to fair relationships with former supervisors and coworkers and an inability to get along with coworkers and supervisors. In September 2006, the Veteran was provided an initial evaluation for PTSD at the VA medical center (VAMC), at which time his employment history included reports of having a great deal of difficulty and conflict with coworkers. He also reported that in the last three years he worked in a local spine hospital and was able to deal mostly with goods and not as much with people. A mental status evaluation revealed that the Veteran's symptoms included tenuous impulse control and a great deal of anger and depression. The Veteran reported having difficulty controlling his anger and tried to avoid others. He was noted to have serious symptoms. However, he was also noted to be able to maintain and hold a job and maintain a long running marriage, although the VA psychiatrist also noted that there had been a great deal of conflict and problems in all the major areas such as with his biological and current families and his considerable symptoms caused him to socially isolate and avoid others. The Veteran's performance was evaluated as usually poor, marked by conflict and difficulty with coworkers and bosses. It was noted that the Veteran managed to work during the last three years in the receiving department for a spine hospital, in which he was able to deal with more equipment and shipments of items rather than people. The Veteran was diagnosed with PTSD and major depressive disorder and assigned a GAF score of 55. In an October 2006 VA outpatient treatment report, the Veteran complained of worsening hypervigilance, insomnia and paranoia and he continued to experience irritability with others, although he had not acted upon his anger. Subsequent VA outpatient treatment reports from June 2007 to December 2007 reflect that the Veteran reported that medications had been helpful in improving symptoms and that he completed PTSD 101 class but he could not attend other classes because he was working. In a September 2007 letter by a VA physician working in the rheumatology clinic, the Veteran's medical history was summarized and included Wegener's Granulomatosis, PTSD, chronic renal disease, anemia of chronic disease, and hypertension. While the letter details the Veteran's symptoms and limitations due to his physical problems, the physician also concluded generally that the Veteran was permanently disabled, may no longer perform assigned duties and should be considered eligible for disability entitlement. In his November 2007 Application for Increased Compensation Based on Unemployability, VA form 21-8940, the Veteran reported that he last worked full time on November 2, 2007, that his disability affected his full time employment on November 2, 2007 and that his service-connected PTSD and tinnitus prevented him from securing or following substantially gainful employment. He reported that his last employer was the Spine Hospital of South Texas. The Veteran also stated that he left his last job because of his disability. A Request for Employment Information, VA form 21-4192, was received from the Veteran's former employer at the South Texas Spine & Surgical Hospital in December 2007. In this form, the Veteran's employer indicated that he began working on September 30, 2002, performing work in shipping, packing, delivery and as a central supply clerk. The Veteran's reason for termination of employment was listed as "health disability" and it was noted that he was currently on Family Medical Leave Act (FMLA) leave. The date the Veteran last worked was noted as November 2, 2007. In a January 2008 VA examination, the Veteran reported PTSD symptoms included anger and irritability, which were better with medication and therapy. He stated however, that he "blows up quite easily" and said anger had led to some difficulty with a supervisor when he was working. He was diagnosed with chronic and ongoing PTSD with symptoms of depression, chronic pain secondary to his medical condition and a prior history of alcohol abuse in remission for over 15 years. A GAF score of 45 was assigned. The examiner found that the Veteran's PTSD has not improved since the diagnosis was made and that, as a "total person" he had worsened because he was no longer working and had more aches and pains from Wagner's disease. The examiner also concluded that the Veteran isolated and withdrew from others when not having established appointments or working and he tended to not socialize because of his PTSD. VA outpatient treatment reports from January 2012 to April 2012 reflect the Veteran was treated for PTSD and that symptoms included avoidance, isolation, a lack of motivation, easy agitation with traffic and lines, impatience and he reportedly could not "adjust to people." During his September 2012 Travel Board hearing, the Veteran alleged he had been unable to work due to his service-connected PTSD. He testified that he last worked at the Spine Hospital and was in charge of material management supplies for about five years. The Veteran stated this position was one in which he could work by himself. He also testified that prior to working at the Spine Hospital, he worked at the Baptist Hospital and had a lot of problems with his supervisor, which ultimately led to his supervisor wanting him to resign. The Veteran stated he did not resign but his supervisor eliminated his job to do their problems with each other. He testified that, as a part of his job in the Spine Hospital, he also had problems with driving due to his frustration and anger. The Veteran reported having anxiety with heavy traffic and being around a lot of people. He also testified that he had problems with his family, including anger issues and verbal abuse and he had no relationship with his son. The Veteran reported having sleeping problems and insomnia as well due to his PTSD. He stated that he was on medication for PTSD and without it, his agitation would increase. For these reported reasons, the Veteran testified that he was unable to work. He also reported that his psychiatrist had found that he was unable to work due to his PTSD symptoms. The Veteran testified that he left his last job in 2006 and had not worked since that time. The Veteran submitted partial VA outpatient treatment reports which were received on the same date as the September 2012 Travel Board hearing. While these treatment reports indicate they were printed in August 2009 and January 2012, the dates of actually treatment are not included as these reports are incomplete. However, both reports indicate the Veteran was receiving treatment for PTSD at VA and the report printed in August 2009 indicates a VA physician's note that the Veteran's depression and PTSD made him "unable to sustain gainable employment." Based on a review of the evidence, and resolving all doubt in the Veteran's favor, the Board finds that the evidence supports the Veteran's claim for entitlement to a TDIU. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board observes that the Veteran meets the criteria for a TDIU under 38 C.F.R. § 4.16(a) throughout the period of this appeal. The Veteran's service-connected disabilities include: PTSD, rated as 70 percent disabling from March 30, 2006; tinnitus rated as 10 percent disabling from March 30 2006; and bilateral hearing loss, rated as noncompensable (0 percent) from March 30, 2006. The combined disability rating for the Veteran's service-connected disabilities is 70 percent from March 30, 2006. The VA examinations and VA outpatient treatment reports, taken together, demonstrate that the Veteran had continued problems with PTSD symptoms which affected his employment, including worsening anger and irritability; lashing out at people; poor concentration at both work and at home; having difficulty with getting along with coworkers and supervisors and an inability to get along with coworkers and supervisors; a history of poor to fair relationships with former supervisors and coworkers; difficulty controlling anger; avoidance; isolation; and a usually poor performance marked by conflict and difficulty with coworkers and bosses. In addition, the VA outpatient treatment report received by the Veteran in September 2012 and printed in August 2009 reflects that his VA physician concluded that his PTSD, in part, made him "unable to sustain gainable employment." The Board further notes that information received from the Veteran's employer per the VA Form 21-4192, received in December 2007, indicates that the Veteran's reason for termination of employment was listed as "health disability." While the specific health disability was not specified the Board notes that the record does not suggest that the Veteran had any other disability, besides PTSD, that would have had such a profound effect on his ability to work. Therefore, looking at the evidence in the light most favorable to the Veteran, the Board finds that a TDIU is warranted. See 38 C.F.R. § 4.16(a). ORDER A TDIU is granted, subject to the regulations applicable to the payment of monetary benefits. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs