Citation Nr: 1312653 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-45 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. 2. Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder. ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1968. He is a combat Veteran with Vietnam service. This case originally came before the Board of Veterans' Appeals (Board) on appeal from April 2008 and March 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When the case was before the Board in March 2012, it was decided in part and remanded in part. The case has now been returned to the Board for appellate action. While the case was in remand status, service connection for posttraumatic stress disorder (PTSD) was granted in a rating decision issued in December 2012. Service connection for erectile dysfunction was granted in a rating decision issued in February 2013; the Veteran's claim of entitlement to special monthly compensation for loss of use of a creative organ was also granted in the February 2013 rating decision. Therefore, those matters are no longer on appeal. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claims. Virtual VA does currently contain evidence pertinent to the claims that is not already included in the paper claims files, namely VA medical treatment records dated in 2012. The Board referred the issue of entitlement to service connection for fatigue as secondary to service-connected disability to the originating agency in its March 2012 decision. As this issue apparently was not developed or adjudicated while the case was in remand status, the Board still does not have jurisdiction over this issue and it is again referred to the originating agency for appropriate action. The issue of entitlement to an initial disability evaluation in excess of 50 percent for the PTSD is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT The Veteran is unable to secure or maintain any form of substantially gainful employment consistent with his education and occupational background as a result of the combined effects of his service-connected disabilities: PTSD (50 percent rating), bilateral hearing loss (20 percent rating); diabetes mellitus Type 2 with erectile dysfunction and diabetic retinopathy (20 percent rating); peripheral neuropathy of the upper extremities (each with a 10 percent rating); peripheral neuropathy of the lower extremities (each with a 10 percent rating); and tinnitus (10 percent rating. CONCLUSION OF LAW The criteria for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the effective-date element of the claim. In addition, the evidence currently of record is sufficient to substantiate the claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria 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 shall 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 nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned if 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 that 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. §§ 3.340 , 3.341, 4.16(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran is currently rated at 50 percent for his service-connected PTSD; 20 percent for his bilateral hearing loss; 20 percent for his diabetes mellitus (DM) Type 2 with erectile dysfunction and diabetic retinopathy; 10 percent each for his peripheral neuropathy of the upper extremities; 10 percent each for his peripheral neuropathy of the lower extremities; and 10 percent for his tinnitus. The combined evaluation for these service-connected disabilities is 80 percent (including the bilateral factor). As such, the Veteran meets the threshold requirements for TDIU under 38 C.F.R. § 4.16(a). Moreover, resolving reasonable doubt in the Veteran's favor, the Board finds that he is unable to secure and maintain any form of substantially gainful employment consistent with his education and occupational background due to his various service-connected disabilities. The Veteran has reported that he has two years of college education and work experience in construction and owning a convenience store. He also has experience as a deputy sheriff and as a county judge. The Veteran claims that he last worked running his family store in May 2004. He also reported that he had been treated for cancer in January 2004, and that he had planned to go back to work but was subsequently diagnosed with DM and became unable to return to work. In addition, the Veteran has stated that he has only continued to help his brother in the family store for approximately 14 hours per week and that he requires various accommodations to achieve even this level of work. The report of the September 2008 VA audiology examination includes the statement that the Veteran's hearing loss causes him difficulty in communication with customers while at work and the statement that it was difficult for the Veteran to understand spoken conversation. The examiner also noted that the Veteran's tinnitus affected/aggravated his hearing loss. The report of the March 2011 VA audiology examination indicates that the Veteran's hearing loss had significant effects on his occupational functioning. The report of a November 2011 VA psychological consultation includes a notation that the Veteran had hearing problems and that many questions during the evaluation were repeated twice. The Veteran was afforded a VA DM examination in April 2008. The examiner indicated that at least some of the Veteran's complaint of easy fatigability were due to his DM. The Veteran was afforded another VA DM examination in May 2009. That examiner concluded that the DM had no significant effects on the Veteran's occupational functioning. The Veteran underwent a VA general medical examination in March 2011. The examiner stated that the Veteran's service-connected peripheral neuropathy affected the Veteran's overall mobility. For example, he was noted to walk slowly with somewhat of a shuffle so he could get a better sense of the surface and elevation. The examiner also stated that the peripheral neuropathy affected the Veteran's manual dexterity as well as his ability to lift and carry objects. The examiner further stated that the service-connected disabilities resulted in a lack of stamina and pain. The examiner stated that the Veteran's ability to drive had been affected by service-connected disability and that he could not be employed in any job requiring heavy physical labor and good mobility or other jobs involving fine motor movement and good dexterity. The examiner did think that the Veteran could work in a general hardware store or some sedentary job. The Veteran underwent a VA eye examination in March 2011. The examiner stated that the Veteran had mild nonproliferative diabetic retinopathy (NPDR) and opined that this condition had no significant effect on his usual occupation. The Veteran underwent a VA PTSD evaluation in April 2012; the examiner reviewed the Veteran's claims files and medical records. The examiner rendered a global assessment of functioning (GAF) score of 50 and stated that this score indicated serious symptoms or a serious impairment in social, occupational or school functioning. The Veteran's PTSD symptoms included chronic sleep impairment, irritability, difficulty concentrating, hypervigilance, anxiety, suspiciousness and feelings of detachment or estrangement from others. Based on the foregoing evidence and with resolution of reasonable doubt in the Veteran's favor, the Board finds that the Veteran is unemployable as a result of the synergistic effect of all of his service-connected disabilities. The Board acknowledges the March 2011 VA examiner's opinion that the Veteran was capable of sedentary employment based on his service-connected conditions alone. However, the examiner did not review the claims files. As this VA medical opinion was based on incomplete medical records, it is of limited probative value. In addition, the medical examination took place before service connection for PTSD had been granted and the effect of that disability was not considered in the opinion. The evidence of record indicates that the Veteran's service-connected disabilities have adversely affected his ability to drive, his ability to walk, his ability to lift and carry, his manual dexterity, his ability to hear, his stamina, his ability to concentrate and his ability to interact with others. In addition, the Veteran's psychosocial functioning status has been described by a VA examiner as severely impaired. As such the various manifestations of the Veteran's service-connected disabilities identified by the VA examiners and VA health care personnel support the Board's conclusion that the Veteran is unemployable due to his service-connected disabilities. Accordingly, a total disability rating based on individual unemployability due to service-connected disabilities is warranted. ORDER Entitlement to TDIU is granted, subject to criteria applicable to the payment of monetary benefits. REMAND In January 2013, the Veteran submitted a timely notice of disagreement (NOD) in which he expressed disagreement with the December 2012 rating decision assigning an initial 50 percent rating for his PTSD. Because the originating agency did not subsequently issue a statement of the case (SOC) addressing that issue, the Board must remand that issue for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: Provide the Veteran with an SOC on the issue of entitlement to an initial rating in excess of 50 percent for PTSD and inform him of the requirements to perfect an appeal with respect to this new issue. If the Veteran perfects an appeal with respect to this issue, the case should be returned to the Board for further appellate action after all indicated development has been completed. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs