Citation Nr: 1321364 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-38 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION The Veteran is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office located in Boston, Massachusetts (RO). FINDINGS OF FACT 1. The Veteran's only service-connected disability is posttraumatic stress disorder (PTSD), which has been assigned a 70 percent rating. As such, the minimum schedular criteria for a total rating based on individual unemployability (TDIU) are met. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's service-connected PTSD precludes him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to a TDIU, which constitutes a complete grant of the above-captioned claim. Therefore, in view of the fact that the full benefit sought by the Veteran is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 and implementing regulations. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disability or disabilities is/are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purposes of determining whether one 60 percent disability or one 40 percent disability exists, the following are considered one disability: 1) disabilities of both upper or lower extremities, including the application of the bilateral factor; 2) disabilities from a common etiology or a single accident; 3) disabilities affecting a single body system; 4) multiple injuries incurred in action; or 5) multiple injuries incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, service connection is in effect for PTSD, which has been assigned a 70 percent rating, effective from January 9, 2006. As such, the minimum schedular criteria for TDIU are met. Consequently, the important issue is whether the Veteran's service-connected PTSD prevents him from obtaining and retaining substantially gainful employment commensurate with his education and employment history. In his formal application for TDIU, the Veteran indicated that his service-connected PTSD first affected his full-time employment in 1966, and that he last worked on a full-time basis in 1982. He indicated that he lasted worked 45 hours per week as a Laborer. In an April 2008 letter, [redacted], a Foreman at a paperworks, reported that the Veteran worked as a Laborer from 1980 to 1982. According to Mr. [redacted], the Veteran injured his back, after which the Veteran never returned to work. The evidence of record included several opinions, each of which concludes that the Veteran is unemployable and the reason or reasons underlying that conclusion. In an October 2007 letter, Thomas Boyle, M.ED., C.A.G.S., opined as follows: [The] Veteran has spent most of his Post Military life disabled and spent about twenty years in various prisons. In essence[,] he could not hold a job because of the difficulties he had adjusting to civilian life. He lives alone, had no social contacts, and he is chronically depressed. He has full range panic attacks[,] three times a week, and frequently has nightmares with night sweats. Medication has not improved his sleeping habits. This Veteran is totally disabled and should be compensated at the 100% level. As a result of an April 2008 VA examination, the examiner opined, in part, as follows: [The Veteran's] PTSD symptoms also indicate that he has depression secondary to a lifelong core of poor psychosocial adjustment. The [V]eteran is not employable due to his obesity, his poor psychosocial adjustment and his long history of poor adjustment. Additionally, according to a December 2008 letter from John Meyers, M.D., "the combination of [PTSD] and chronic pain have led to [the Veteran's] depression." Further, because of depression, Dr. Meyers stated that the Veteran experiences difficulties with anxiety, concentration, and attention. For these reasons, Dr. Meyers opined that the Veteran was unable to work. In a February 2009 letter, Todd Reed, M.D., opined that the Veteran experienced chronic and persistent low back pain and knee pain. Further, the doctor stated that the Veteran had degenerative joint disease, which made it difficult for him to walk or stand for prolonged periods of time. As a result of these conditions, Dr. Reed stated that the Veteran was unable to "perform work in any meaningful capacity," and, thus, was unemployable. Dr. Reed further opined that the Veteran's situation was compounded by "mental health concerns." The opinions mentioned above indicate that the Veteran is unemployable due to psychological symptoms associated with this service-connected PTSD. In particular, the opinions indicate that the Veteran's PTSD is manifested by depression, and that the Veteran's depression renders him unemployable. Although these opinions also indicate that the Veteran's unemployability is due to physiological issues, the Board finds that the evidence of record is at least in equipoise. This is especially true given that the record did not include any evidence that specifically demonstrated that the Veteran is able to obtain and retain substantially gainful employment commensurate with his education and employment history despite his service-connected PTSD. Resolving reasonable doubt in the Veteran's favor, the Board finds that his PTSD renders him unable to obtain and retain substantially gainful employment and, therefore, the Veteran is unemployable due to a service-connected disability. Accordingly, the Board finds that TDIU is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs