Citation Nr: 1330032 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-21 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1946 to November 1947, and from October 1950 to August 1951. He received the Purple Heart Medal This matter comes to the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied entitlement to TDIU. The Veteran testified before the undersigned at a Board hearing at the RO in July 2013; the transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012), VA has a duty to provide certain notice and assistance to claimants. In light of the favorable decision as it relates to the issue of the grant of entitlement of a TDIU, no further notice or assistance is necessary. 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. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). Entitlement to a total rating must be based solely on the impact of the veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Service connection is in effect for posttraumatic stress disorder (PTSD), rated 30 percent disabling from June 12, 2009 and 50 percent disabling from August 10, 2010; residuals of gunshot wound to right mastoid with post concussion syndrome with migraine headaches, rated 30 percent disabling from August 8, 1951; left radial sensory neuropathy (non-dominant) associated with residuals of gunshot wound to left forearm, muscle group VIII, also claimed as left arm and wrist condition, rated 20 percent disabling, from June 12, 2009; residuals of gunshot wound to left forearm, muscle group VIII, also claimed as left arm and wrist condition, rated 10 percent disabling, from August 8, 1951; tinnitus, rated 10 percent disabling, from June 12, 2009; residuals of frostbite to hands, rated 10 percent disabling from June 12, 2009; residuals of frostbite to feet, rated 10 percent disabling, from June 12, 2009; peripheral neuropathy of the right upper extremity associated with residuals of frostbite to hands, rated 10 percent disabling, from June 12, 2009; peripheral neuropathy of the left lower extremity associated with residuals of frostbite to feet, rated 10 percent disabling, from June 12, 2009; peripheral neuropathy of the right lower extremity associated with residuals of frostbite to feet, rated 10 percent disabling, from June 12, 2009; boils, rated noncompensably disabling, from November 26, 1947; and, bilateral hearing loss, rated noncompensably disabling, from June 12, 2009. The Veteran has met the percentage requirements of 38 C.F.R. § 4.16(a)(2) and (4) since June 12, 2009, as residuals of gunshot wound to right mastoid with post concussion syndrome with migraine headaches (30%); left radial sensory neuropathy associated with residuals of gunshot wound to left forearm, muscle group VIII (20%); and, residuals of gunshot wound to left forearm, muscle group VIII (10%), result from a single accident during service and were incurred in action during the Veteran's combat service in Korea. Thus, such disabilities combine to a 50 percent rating, and his combined disabilities amount to 90 percent. Moreover, his PTSD is rated 50 percent disabling from August 10, 2010, and his combined disabilities still amount to 90 percent. See 38 C.F.R. § 4.25(a). In his VA Form 21-8940, claim for TDIU, the Veteran indicated that he had worked from 1990 to 1991 in the mail room at Liz Claiborne. He had completed high school. He reported that he became too disabled to work in 1991. An August 2010 VA psychiatric examination report reflects the examiner's statement that the Veteran's psychiatric symptoms would not prevent employment, but would make work somewhat difficult. The Veteran was; however, given a global assessment of function (GAF) of 48. The psychiatric diagnosis was moderate PTSD. In August 2012 the Veteran's private physician stated that the Veteran's headaches had been present since an in-service head injury that caused him to require a metal plate; and that the headaches would have kept him from being able to work. An August 2010 VA examination report reflects that an X-ray examination did not support the report of a metal plate; but the migraines were, found to be residuals of gunshot wound to the right mastoid. At the Board hearing, the Veteran testified that he worked as a security guard at the United Nations for 32 years; and for Liz Claiborne for a year afterwards. He said he was fired because Liz Claiborne had its own security guards. T. at 3. He stated that his psychiatric symptoms and migraines prevented employment. The private physician's opinion that the Veteran's migraines would keep him from being able to work, the VA examiner's opinion that the psychiatric symptoms would make work difficult, the GAF of 48 (which is indicative of an inability to work) and the Veteran's testimony, weigh in favor of a finding that service connected disabilities render him unemployable. For these reasons, entitlement to a TDIU is granted. ORDER Entitlement to a TDIU is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs