Citation Nr: 1316786 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-27 461 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating by reason of individual unemployability (TDIU) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Atlanta, Georgia. It was most recently remanded for additional development in October 2011. The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge in July 2010. FINDINGS OF FACT 1. The Veteran is currently service connected for posttraumatic stress disorder (PTSD) rated 70 percent disabling; hemorrhoids, rated 20 percent disabling; radiculopathy of the middle radicular group, rated 20 percent disabling; radiculopathy of the left lower extremity, rated 20 percent disabling; radiculopathy of the right lower extremity, rated 20 percent disabling; degenerative arthritis of the right shoulder, rated 10 percent disabling; limitation of motion of the left shoulder, rated 10 percent disabling; degenerative arthritis of the cervical spine, rated 10 percent disabling; and intervertebral disc syndrome, rated 10 percent disabling. His combined disability rating is 90 percent. 2. The Veteran is unable to obtain or maintain substantially gainful employment due to his service connected disabilities. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the entirely favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim is required at this time. TDIU The Veteran contends that he is unable to work due to his service connected disabilities. The Veteran is currently service connected for PTSD rated 70 percent disabling; hemorrhoids, rated 20 percent disabling; radiculopathy of the middle radicular group, rated 20 percent disabling; radiculopathy of the left lower extremity, rated 20 percent disabling; radiculopathy of the right lower extremity, rated 20 percent disabling; degenerative arthritis of the right shoulder, rated 10 percent disabling; limitation of motion of the left shoulder, rated 10 percent disabling; degenerative arthritis of the cervical spine, rated 10 percent disabling; and intervertebral disc syndrome, rated 10 percent disabling. His combined disability rating is 90 percent. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The sole fact that a Veteran 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 and keep employment. Rather, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. To make this determination, the Veteran's level of education and previous work experience may be considered, but not his age or any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court of Veterans Appeals (Court) observed that the regulations governing the award of benefits for individual employability are "apparently conflicting as to whether an objective ('average person') or subjective ('the veteran') standard applies in determining 'unemployability' in a particular case." Id at 167. The VA General Counsel addressed the Court's concern in a precedential opinion, concluding that Veterans who are unable to secure and follow any substantially gainful occupation as the result of their service-connected disabilities, viewed in light of their individual circumstances, but without regard to age, should be rated totally disabled without regard to whether an average person would be rendered unemployable by the circumstances. Further, the General Counsel clarified that the term 'unemployability' is synonymous with 'inability to secure and follow a substantially gainful occupation.' VAOGCPREC 75-91. Additionally, as observed by the Court in Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994), a claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). 'Substantially gainful employment' is 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 v. Derwinski, 1 Vet. App. 356, 358 (1991). 38 C.F.R. § 4.16(a) states that "[m]arginal employment shall not be considered substantially gainful employment." The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore, 1 Vet. App. at 359 (citing Timmerman, supra at 442). In this case, the Veteran meets the schedular criteria for TDIU. Hence, the remaining question is whether he is unemployable solely due to service connected disabilities. In May 2005, the Veteran was examined with respect to his PTSD. At that time, the examiner related that the Veteran's symptoms were moderate in severity and did not preclude employment. The Veteran was awarded Social Security Administration (SSA) disability benefits in May 2006. He was found to be unable to work due to PTSD, chronic obstructive pulmonary disease (COPD), and spondylosis of the cervical and lumbar spine. The Veteran is not service connected for COPD. He is service connected for PTSD and his cervical and lumbar spine disabilities. In a July 2008 treatment record, the Veteran's psychiatrist opined that the Veteran was totally disabled due to PTSD and that he was not a candidate for even limited employment. The Veteran's psychiatrist essentially reiterated the same opinion in April 2009 and March 2010 letters. In July 2010, the Veteran's primary care doctor opined that the Veteran was unable to work due to PTSD and COPD. In July 2010 a nurse practitioner wrote a letter stating that the Veteran was unemployable due to PTSD, back pain, and COPD. As noted above, the Veteran is not service connected for COPD. He is service connected for PTSD and a back disability. In October 2011 the Veteran was afforded a VA mental health examination. At that time the examiner noted that the Veteran's PTSD symptoms were not severe enough to interfere with his ability to maintain gainful employment, although he would be limited to basic, moderate stress activities. The examiner indicated that the effects of the Veteran's physical disabilities should be addressed by appropriate specialists. In November 2011 the Veteran was afforded a VA examination of his spine. At that time, the VA examiner opined that the Veteran was essentially confined to his home due to the severity of his back and neck pain. In November 2012 the Veteran's primary care physician opined that the Veteran was unable to work due to chronic back pain, neck pain, and PTSD. Giving the benefit of the doubt to the Veteran, his service connected disabilities as likely as not prevent employment without consideration of non-service connected disabilities such as COPD. While, in contrast to the Veteran's psychiatrist, the VA examiners noted that the Veteran's PTSD was moderate in severity and did not preclude employment, their examinations were limited to assessing the Veteran's mental health and did not address the effects of his various physical health problems including back pain, neck pain, and multiple radiculopathies. Notably, the examiner who provided the November 2011 spine examination indicated that the Veteran was confined to his home due to neck and back pain, suggesting that the Veteran was unemployable due to his orthopedic disabilities. The only physician who addressed the combined effects of the Veteran's physical and mental impairments concluded that considered together they made the Veteran unemployable. Considering the limitations presented by the Veteran's physical disabilities in combination with his PTSD, the Board concludes that the evidence is at least evenly balanced on the question of whether he is unemployable due to service connected disabilities. ORDER TDIU is granted. ____________________________________________ R. Feinberg Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs