Citation Nr: 1333322 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 05-24 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to February 1969. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection, effective May 12, 2003, for posttraumatic stress disorder (PTSD), and assigned a disability rating of 50 percent. The Veteran perfected an appeal as to the rating, and in March 2012 the Board issued a decision awarding a 70 percent rating for the Veteran's PTSD, which the RO awarded effective May 12, 2003. Along with that decision, the Board recognized that evidence in the claims folder raised the question of entitlement to a TDIU, and noted the finding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which deems a TDIU as a part of an increased disability rating claim when such claim is raised by the record. The claim was previously remanded in March 2012 and October 2012, for additional development. In May 2013, the Board requested an opinion from a medical specialist from the Veterans Health Administration (VHA). The opinion was received in July 2013. In light of the favorable VHA opinion, the Board will proceed with the consideration of his case. FINDINGS OF FACT The Veteran has been unable to maintain substantially gainful employment as a result of his service-connected PTSD throughout the period of this claim. CONCLUSION OF LAW The criteria for a TDIU have been met throughout the period of this claim. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to a TDIU. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran asserts that he is entitled to a TDIU because his service-connected PTSD prevents him from securing and maintaining substantial gainful employment. He feels that the severity of his service-connected PTSD would interfere with him performing both physical and sedentary employment. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. The Veteran's employment history, educational and vocational attainment, as well as particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The 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 the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran has one service-connected disability, PTSD, and it is rated as 70 percent disabling. Therefore, he meets the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a). As such, the Board's consideration thus turns to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. The evidence shows that the Veteran was last gainfully employed in 1982. In 1989 the Social Security Administration found that the Veteran was disabled due to cluster headaches and chronic obstructive pulmonary disease. In December 2003, the Veteran reported to VA that he could not leave his house or property much. VA treatment records dated earlier that year show that he was diagnosed with agoraphobia. On VA PTSD examination in June 2004, the examiner noted that it appeared that the Veteran, during previous employment, always needed to be alone, and had an aversion to people that would cause him to quit jobs. If he could not work alone, he was totally intolerant and would need to leave. This, according to the VA examiner, would make his ability to be employed marginal at best. In April 2005, a VA Social Worker that treated the Veteran submitted a statement summarizing the Veteran's mental health status and found that he had been unable to work for the past twenty years, due in large part to PTSD, as well as his physical disabilities. In August 2005, the Veteran again underwent a VA PTSD examination. The examiner opined that the proper diagnosis for the Veteran was psychotic disorder, and went on to state that clearly the Veteran was unemployable due to his very serious mental illness. The examiner, however, stated that it was difficult to assess to what extent his PTSD symptoms played a role in his unemployability. On VA PTSD examination in July 2011 the examiner noted that the Veteran was functioning as well as he was at the time of his original compensation and pension examination in 2004. She indicated that the Veteran stopped driving six months prior to the examination. Reportedly, the Veteran was calmer after changing medication, without violence, anger or mood disturbance. He continued to avoid most people and activities. In April 2012, the same VA examiner issued an addendum opinion wherein she repeated the July 2011 examination report findings, and noted that the Veteran denied that he was any more violent or in any more distress than at the time of his original VA examination. Based upon this finding, the examiner determined that she did not see a reason why the Veteran would be deemed unemployable. The Board found that the examiner's conclusion did not appear to take into account the previous opinions concerning employability. In particular, the examiner stated that the Veteran's mental status was the same as at the time of the original examination, which was in June 2004, and then concluded that he was not deemed unemployable. However, at the time of the June 2004 examination, the VA examiner reported that the Veteran's ability to be employed was marginal at best. Also, the records since that initial VA examination suggested that his psychiatric disorder impacted his employability, and on several occasions he has was described as unemployable. Accordingly, the Board determined that an additional opinion as to the Veteran's employability, as well as an explanation of the cause of any unemployability, was necessary to decide the claim. In an opinion dated in January 2013, the same examiner who prepared the April 2012 addendum, reiterated, based on her interview of the Veteran in July 2011, that she did not see a reason why the Veteran would be deemed unemployable. The January 2013 opinion did not provide the opinions requested by the Board. Instead, the examiner restated the April 2012 conclusory opinion which was found inadequate by the Board in its October 2012 remand. The examiner also failed to explain the basis for her opinion stating that she stood by her previous assessment of the Veteran, noting that the Veteran's PTSD symptoms were under control with medication. The examiner further noted that it appeared the Veteran had re-engaged in psychotherapy since he was most recently examined, and recommended a new VA examination be conducted based on new treatment. The Veteran was subsequently re-examined in January 2013. However, the VA examiner failed to address whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his PTSD. For the above reasons, the Board determined that the VA examiners' opinions were insufficient to decide the Veteran's claim on the merits. As such, in May 2013 the Board sought an expert opinion from the VHA as to determine whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected PTSD. In an opinion in July 2013, the reviewing VHA psychiatrist concluded, based on a review of the evidence of record, that the Veteran's PTSD symptomatology, independent of any other disabilities, rendered him unable to secure or follow a substantially gainful occupation. In support of the opinion, the VHA psychiatrist noted that when the 2013 VA examiner concluded that the Veteran's PTSD was productive of pervasive emotional and cognitive distress that impaired his ability to perform activities of daily living. In this regard, the severity of his symptoms, to include problems with interpersonal skills, distrust and intolerance of others, and anxiety, impaired his ability to function socially and to secure or follow substantially gainful employment. While the VA examiner in April 2012 and January 2013 found that the Veteran's condition had not worsened and the Veteran was employable, the VHA psychiatrist disagreed indicating that treatment records throughout the appeal, to include VA examination reports, failed to show that PTSD had resolved or improved since he was found to be marginally employable in 2004. Additionally, although medication helped the Veteran control his anger and aggression, his PTSD nonetheless precluded him from finding and maintaining gainful employment. The VHA psychiatrist further opined that to the extent the record contained other psychiatric diagnoses, to include agoraphobia and psychotic disorder, these disorders were related to PTSD and were not distinct from it. In this regard, the VHA psychiatrist explained that PTSD predated symptoms associated with diagnoses of psychotic disorder and agoraphobia, and the Veteran's medical history suggested that these symptoms most likely were related to high levels of hyperarousal and hypervigilence, which supported a primary diagnosis of PTSD. Moreover, symptoms of psychosis supported a finding of severe PTSD, which together with agoraphobia, were productive of significant social impairment and rendered the Veteran unemployable. Accordingly, the VHA psychiatrist's opinion supports the Veteran's claim for entitlement to a TDIU. The July 2013 VHA psychiatrist's opinion is of great probative value. The opinion was rendered after a review of the claims file, to include the service treatment records, VA medical opinions, and post-service treatment records, and contained a detailed analysis of the evidence of record and medical principles. The opinion is also consistent with the evidence of record and a rationale in support of the opinion was provided. Moreover, it is consistent with the medical opinion of the Veteran's treating clinicians. The Board recognizes that the VA examiner in April 2012 and January 2013 opined that the Veteran's PTSD would not prevent the Veteran from obtaining or maintaining gainful employment. However, as previously noted, the examiner's opinion is contradicted by other evidence of record, including clinical treatment reports and examination findings, and no rationale was offered in support of the opinion. Further, it is apparent that the examiner did not consider whether a particular job was realistically within the mental capabilities of the Veteran. Thus, in summary, the Board finds that the medical opinion of the VHA psychiatrist that the Veteran's service-connected PTSD renders him unemployable outweighs the prior findings of the VA examiner who prepared the opinion reports of April 2012 and January 2013. After a review of the evidence, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD. Thus, the Board finds that the evidence is at least in equipoise such that reasonable doubt may be resolved in favor of the Veteran, and a TDIU rating is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Subject to the law and regulations governing payment of monetary benefits, a total disability rating based on individual unemployability due to the service-connected PTSD is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs