Citation Nr: 1326098 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-21 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The Veteran meets the schedular requirement for TDIU, and his service-connected disabilities render him unemployable. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.321, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the decision below, the Board has granted entitlement to TDIU, which is a full grant of the benefit 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. Law and Analysis Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). Where these percentage requirements are not met, entitlement to the 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 disability. See 38 C.F.R. § 4.16(b). It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. In order for a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. 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 or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran in this case is service-connected for PTSD, which is rated 70 percent disabling, and for tinnitus, which is rated 10 percent disabling. He has a combined rating of 70 percent, and thus, meets the threshold rating criteria for TDIU under 38 C.F.R. § 4.16(a). Accordingly, the remaining question is whether he is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. The record shows that the Veteran dropped out of school in the ninth grade and held a variety of jobs after service, including being an airport cargo handler for two years, a sanitation worker, and operating a hearing aid business. A VA Form 21-4192 on file, dated in March 2010, shows that he last worked part-time (24 hours a week) as a hearing aid specialist (from May 2004 to August 2007) and was laid off due to PTSD. The Veteran's last employer was his wife. Upon review, the Board notes that there is some conflicting evidence of record regarding the question of whether the Veteran is unemployable due to his service-connected PTSD. In support of the claim, the Veteran submitted an April 2010 report from a private psychiatrist who stated that he began treating the Veteran in 1998 at a VA PTSD clinic. This report is consistent with various VA outpatient records on file that are authored by the same psychiatrist. He reported that, over a period of 10 years, the Veteran had been tried on numerous trials of various psychotropic medications to control his severe symptoms of PTSD. He stated the Veteran had been unable to work at his wife's hearing aid business due to severe hyperarousal symptoms and indicated that he had been unable to obtain other employment due to his severe outbursts of anger, which had led to fights with others as recently as that year. He noted that the Veteran continued to suffer from severe PTSD and commented that his prognosis was poor. The psychiatrist also stated that the Veteran's ability to function at work had been severely impacted by his PTSD and noted that he continued to have severe irritability resulting from him being completely unable to be gainfully employed. Based on his experience treating several hundred combat veterans, the psychiatrist opined that the Veteran's PTSD was of such severity that he should be rated 100% totally and permanently disabled as a result of his combat-related PTSD. The Board notes that the record also includes a June 2010 VA examination report from a clinical psychologist who indicated that the Veteran had been unemployed for two years. He noted that the Veteran was retired and happy not working, and he commented that the reason for his unemployment was that the Veteran "didn[']t want to deal with it and "could[']nt handle dealing with people." The examiner stated that the Veteran was capable of working and later commented that he could work if he was motivated or if he could get hired. However, the examiner also acknowledged that the Veteran was not good with people and indicated that he had a low stress tolerance level. He commented on the Veteran's functional status by stating that the Veteran could not get along with others at work and isolates himself. Based on the foregoing, the Board finds that there is reasonable doubt as to whether the Veteran is unemployable due to his service-connected disabilities. That doubt will be resolved in the Veteran's favor. Accordingly, the Board concludes that TDIU is warranted ORDER Subject to the provisions governing the award of monetary benefits, entitlement to TDIU is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs