Citation Nr: 1326893 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-28 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1986 to November 1986, May 1987 to April 1990, and June 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDING OF FACT The Veteran has been precluded from securing or following a substantially gainful occupation as a result of his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 3.326(a) (2012). With respect to the issue on appeal, the Board is taking action favorable to the Veteran by granting entitlement to a TDIU. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered as this decision poses no risk of prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). TDIU The Veteran asserts that he is entitled to a TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected 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 (2012). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 disability: 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 disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. See 38 C.F.R. § 4.15 (2012). Service connection is in effect for PTSD, currently rated as 70 percent disabling and plantar fasciitis, rated as 0 percent disabling. The Veteran meets the percentage requirements. See 38 C.F.R. § 4.16(a). Therefore, the remaining question is whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. In his application for a TDIU, the Veteran reported that he was in school for vocational rehabilitation. The Veteran indicated that he completed one year of college. During the course of the appeal, it was noted that the Veteran was unable to attend school and was medically discharged from the Kansas Army National Guard. In a VA Form 21-4192, the Veteran's prior employer, Basehor-Linwood USD, indicated that the Veteran worked at a print shop from January 13, 2003 to July 14, 2008. The Veteran was terminated due to attendance. In a VA Form 21-4192, the Veteran's prior employer, Bill Wano Entertainment, noted that the Veteran was employed from November 1, 2007 to October 1, 2010 and worked in Customer Service. The Veteran was terminated because he was very unfriendly to customers and missed too much work. In a statement received by VA in August 2011, the Veteran's VA psychiatrist, Dr. S.K., opined that the Veteran was not capable of obtaining and maintaining meaningful employment. The Veteran was provided a VA examination in May 2013. The examiner indicated that the Veteran's PTSD manifested in total occupational and social impairment. The Veteran was assigned a Global Assessment and Functioning (GAF) Score of 51, indicating serious impairment. The examiner noted that the Veteran could not complete the work component of his National Guard service. The examiner stated that the Veteran was unable to function well on a job and was considered to be incapacitated for duty by his Guard unit for the past two years. Indeed, a July 2013 Memorandum from the United States Army Physical Evaluation Board found the Veteran physically unfit to continue military service due to diagnoses of PTSD and major depression. The central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to render the Veteran unable to secure or follow a substantially gainful occupation. In light of the above, including the May 2013 VA examiner's opinion that the Veteran's PTSD was productive of total occupational and social impairment and the Veteran's VA psychiatrist's opinion that the Veteran is unable to obtain or maintain meaningful employment, the Board finds that the evidence is at least in equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. In resolving the benefit of the doubt in favor of the Veteran, the claim for entitlement to a TDIU is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs