Citation Nr: 1328417 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-36 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total rating based upon individual unemployability due to the service-connected disability (TDIU). REPRESENTATION Veteran represented by: David W. Glasser, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from November 1967 to May 1970. This appeal to the Board of Veterans Appeals (Board) arises from a September 2009 rating decision by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal. The Veteran then timely appealed this denial. In June 2011 and August 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. In June 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) at the RO (Travel Board hearing). A transcript of the hearing has been associated with the claims file. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision, along with his paper claims file. FINDINGS OF FACT 1. The Veteran is currently in receipt of a 70 percent rating for his service-connected posttraumatic stress disorder (PTSD) and is only service-connected for one disability; thus, he meets the percentage requirements for consideration of a total evaluation. 2. The Veteran's service-connected PTSD is shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the Board is granting the TDIU claim on appeal. Thus, there is no prejudice to the Veteran and no further discussion of the VCAA is required for this issue. II. Analysis Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a); see Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. 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, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither her nonservice-connected disabilities nor her advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The Court stressed that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect the Veteran's service-connected disabilities have on her ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). In this case, the Veteran is currently service-connected for one disability: PTSD, rated as 70 percent disabling. His combined evaluation for compensation is currently 70 percent. Thus, the Veteran meets the percentage requirements for consideration of a total evaluation under 38 C.F.R. § 4.16(a). The Board must now consider whether the competent evidence otherwise demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability. The records show the Veteran has not engaged in substantially gainful employment throughout the appeal period. At his June 2013 Board hearing, the Veteran was currently employed part-time as a Security Guard. Previously at a Board hearing in January 2011 (on the issue of entitlement to an increased disability rating for his PTSD), the Veteran testified that he was currently employed part-time as a janitor at Goodwill. The Veteran argues that he is currently unable to work full-time, and thus unable to secure or follow substantially gainful employment, due to his service-connected PTSD. Specifically, at both of his Board hearings, the Veteran testified that he had been fired and/or quit from several jobs because of his temper - one of his PTSD symptoms. In particular, the Veteran would yell, use foul language, and get into physical altercations with customers and co- workers. The Veteran testified that he previously held employment as a limo driver, taxi driver, day laborer, sandwich maker, and telemarketer. The Veteran also reported being in anger management classes through the VA Medical Center (VAMC). At both hearings, the Veteran testified that he was currently working part-time. The Veteran stated that by working part-time, he was able to keep his employment for a longer period of time than he would if he were working full-time. By only working four hours a day, as opposed to eight hours a day, the Veteran was able to better control his temper and prevent the anger from building up. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., temper, concentration, and memory problems at his employment. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The lay statements are also supported by the medical evidence of record. Specifically, since filing his TDIU claim in September 2008, the evidence of record documents that the Veteran was unemployed at a December 2008 VA outpatient treatment visit. In a VA outpatient treatment visit dated in May 2010, the Veteran was seen by the VA psychiatry department for "temper tantrums." The physician found that the Veteran's judgment was impaired by his anger, and his impulse control was tenuous. In a VA outpatient treatment visit dated in July 2010, the Veteran told the psychologist that he had a significant history of job instability. The Veteran stated that he had never been able to hold a job for longer than 18 months due to his temper and anger management problems. The Veteran was currently employed as a janitor at a recreation center. The Veteran was afforded a VA psychiatric examination in in September 2011. At the examination, the Veteran reported having temper problems. He indicated that he was currently taking computer classes. He stated that he was not a good student due to his impaired short-term memory. He reported that he was working part-time in security. He also stated that he had a hard time maintaining employment due to his temper. He indicated that he had sleep problems, including nightmares. He was noted to have a restricted range of affect and feelings of detachment from others. He had irritability or outbursts of anger. The Veteran denied any current drug or alcohol abuse. Following a physical examination of the Veteran and a review of the claims file, the VA examiner found that that the Veteran's service- connected PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. His symptoms were found to include: depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of mood and motivation; inability to establish and maintain effective relationships; difficulty in establishing and maintaining effective work and social relationships; irritability or outbursts of anger; and, impaired impulse control (such as unprovoked irritability with periods of violence). The Veteran's PTSD was assigned a Global Assessment of Functioning (GAF) score of 50, indicating serious symptoms or serious impairment in social, occupational, or school functioning. See American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The examiner found that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. In October 2012, a VA addendum medical opinion was obtained from a VA psychologist who did not examine the Veteran. Following a review of the Veteran's paper and Virtual claims file, the VA examiner determined that the Veteran "is not unable to secure or maintain substantially gainful employment as a result of the sole effect of his service- connected PTSD." The examiner reasoned that the Veteran had a history of substance abuse, and thus the examiner could not state that the Veteran's PTSD symptoms alone would preclude employment. The examiner indicated that irritability alone due to PTSD would also not preclude employment. The examiner found that there was no objective evidence of functional impairment occupationally based on PTSD alone. In January 2013, the Veteran's VA Vocational Rehabilitation Counselor provided a lay opinion. The Counselor stated that the Veteran successfully completed the PC Support Services course at Pinella Technical Center. The Counselor reported that, while attending school, the Veteran was employed part- time as a Security Officer. The Counselor indicated that, upon completion of the program, the Veteran was also employed as a Security Officer, as the Veteran was not able to obtain a PC support services job upon completion of his training. The Counselor stated that the Security Officer job was stable and suitable employment for the Veteran. The Board notes that both of the above opinions to do address or consider whether the Veteran's current part-time employment as a Security Officer is marginal employment as opposed to substantially gainful employment for the Veteran. Additionally, the VA examiner found the Veteran to have a substance abuse problem that was affecting his employment; however, the VA examiner did not address the fact that the Veteran reported no current drug or alcohol problems at the recent September 2011 VA examination. Further, since December 2009, the Veteran's drug use is not documented in the VA treatment records. Thus, the Board finds that the VA examiner did not provide a factually accurate medical opinion. Thus, due to the inaccuracies in the aforementioned opinions and in giving the Veteran the benefit of the doubt, the Board finds that the Veteran's current part-time employment is marginal employment. The Veteran is unable to work full- time due to his service-connected PTSD symptoms, to include his temper, irritability, lack of impulse control, concentration difficulties, and memory problems. The Veteran has made attempts to work full-time during the appeal period, and he has been terminated from the positions, primarily due to his temper. At his hearing, the Veteran testified that he can only work part-time because if he were to work more, he would not be able to keep his temper under control. Thus, the Board finds that the Veteran is currently engaged in marginal employment due to his service-connected PTSD. The Veteran is unable to engage in a job that could be considered substantially gainful versus just what amounts to marginal due to his service- connected PTSD. As previously stated, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Thus, in giving the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected PTSD precludes him from securing and maintaining substantially gainful employment consistent with his educational and vocational experiences. The Veteran's TDIU claim is granted. ORDER Entitlement to a TDIU is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs