Citation Nr: 1331752 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-30 212 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to a total rating due to individual unemployability (TDIU) caused by service-connected disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to October 1970. In December 2012, this case was before the Board of Veterans' Appeals (Board), in part, on the issue of entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), his sole service-connected disability. The Board increased that rating from 30 percent to 50 percent, effective December 21, 2006. In its December 2012 decision, the Board noted that the Veteran had raised the issue of entitlement to a TDIU during a May 2012 VA psychiatric examination, when he stated that he had retired from his job, because he found it stressful and that he could not take it anymore. Servello v. Derwinski, 3 Vet. App. 196, 200 (1992) (an examination report can constitute an informal claim for a TDIU); see also, 38 C.F.R. § 3.157(b)(1). A TDIU is not a separate entity but is part of, or a component of, an initial IR or a regular IR. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Therefore, the Board remanded the TDIU issue for further development to the VA Appeals Management Center (AMC) in Washington, D.C. In January 2013. the AMC notified the Veteran of the evidence necessary to support a claim for a TDIU and asked the Veteran if he wished to pursue such a claim. The AMC provided the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities that had not then been associated with the claims file. The Veteran did not respond to that notice. Later in January 2013, the AMC denied the issue of entitlement to a TDIU. Thereafter, the case was returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran has a 50 percent rating for PTSD, his sole service-connected disability. 2. The Veteran has a high school education and work experience as a forklift operator. 3. The Veteran's service-connected disorder does not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to a TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. During the pendency of the appeal, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA also set forth the criteria for a TDIU. Following the notice to the Veteran, VA obtained or ensured the presence of records reflecting the Veteran's VA treatment from April 2003 through March 2012. In January 2008 and June 2013, VA examined the Veteran to determine the extent of impairment due to his service-connected PTSD and the effect on his daily activities, including his ability to work. The VA interviewed and examined the Veteran, documented his medical condition, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Although medical evidence was not available to the examiner for review prior to the May 2012 examination, that fact was not prejudicial to the Veteran. Not only were the findings on the examination consistent with those in the Veteran's treatment records and January 2008 VA examination report, the history reported by the Veteran was, generally, consistent with those records. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal When the Veteran's schedular rating is less than total (for a single disability or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, it is rated at 60 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). In this case, the Veteran has a 50 percent disability evaluation for PTSD, his sole service-connected disability. While that does not meet the foregoing rating requirements, that does not end the inquiry. A total disability rating may also be assigned on an extra-schedular basis for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Such cases are referred to the Director of the VA Compensation and Pension service with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. VA adjudication manual, M-21-1 Part VI, Para. 7.14(a) (Change 52, Aug. 26, 1996). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Any consideration as to whether the veteran is unemployable is a subjective one, that is, one that is based upon the veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Prec. Op. VA Gen. Counsel 75-91 (Summary of Precedent Opinions of the General Counsel, 57 Fed. Reg. 2314, 2317 (1992)). Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to TDIU. 38 C.F.R. § 3.341(a), 4.19 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is 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. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran has a high school education and many years of work experience as a forklift operator. During his May 2012 VA examination, he reports that he retired due to stress and his inability to take it anymore. However, the record is negative for any findings that he is totally unemployable due to his service-connected PTSD. For example, while the January 2008 VA examiner noted that his PTSD interfered with his daily activities such as his ability to perform chores, it was not severe enough at that time to interfere with the Veteran's occupational or social functioning or to require continuous medication. The May 2012 VA examiner did find that it was productive of no more than occupational and social impairment with reduced reliability and productivity. Such conclusions by the VA examiners militate against the assignment of a TDIU. In reaching their opinions, the VA examiners assigned the Veteran a GAF scores of 65 and 60 respectively. GAF is an acronym which stands for Global Assessment of Functioning (GAF) score. It is found in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV) and reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996).) The nomenclature in DSM IV has been specifically adopted by VA in the evaluation of mental disorders. 38 C.F.R. § 4.125, 4.130 (2013). While important in assessing the level of impairment caused by psychiatric illness, the GAF score is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001). The GAF scores assigned by the VA examiners were consistent with no more mild symptoms, or some difficulty in social, occupational, or school functioning. In such cases, the Veteran, generally, functions pretty well, with some meaningful interpersonal relationships. Such scores were entirely consistent with those assigned by the Veteran's treating VA health care providers from January 2009 through March 2012. During that time, the Veteran's GAF ranged from 55 to 60. Such scores compatible with moderate impairment due to PTSD. In no case, was there any competent evidence that the Veteran's PTSD precluded him from performing all forms of substantially gainful employment. Rather, the treatment records show that once the Veteran retired in May 2010, he was getting his sleep cycle back and that he and his wife were doing more entertaining and socializing. They also show that he and his wife planned to travel. Such findings suggest that the Veteran's PTSD was improving and further militate against the assignment of a TDIU. In light of the foregoing discussion, the preponderance of the evidence is against a finding that the Veteran is unemployable due solely to his service-connected PTSD. The Veteran does not meet the rating criteria for a TDIU under 38 C.F.R. § 4.16(a), nor does he meet the criteria under 38 C.F.R. § 4.16(b) for referral of this case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service. Accordingly, a TDIU is not warranted, and the appeal is denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs