Citation Nr: 1335558 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-27 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Daniel Smith, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied an increased rating for posttraumatic stress disorder (PTSD). This appeal originally came before the Board as a claim for entitlement to an increased rating for service-connected PTSD. In an October 2010 decision, the Board found that a claim for TDIU had been raised by the record in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is part of the adjudication of a claim for increased compensation). The Board denied the claim for TDIU in the October 2010 decision and the Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In February 2013, the Court issued a memorandum decision that set aside the Board's October 2010 denial of entitlement to TDIU and remanded the claim. The appeal has now returned to the Board for further action. In October 2008, the Veteran testified before a hearing officer at the RO. The Veteran also testified before the undersigned Veterans Law Judge at the RO in June 2010. Transcripts of both hearings are of record. FINDING OF FACT The Veteran's service connected PTSD precludes him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for an award of a TDIU due to service-connected PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is unemployable due to symptoms associated with service-connected PTSD. VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for PTSD rated as 70 percent disabling, tinnitus rated as 10 percent disabling, and bilateral hearing loss rated as noncompensably disabling. He has a combined disability evaluation of 70 percent. Therefore, he meets the objective minimum percentage requirements set forth in 38 C.F.R. § 4.16(a), for an award of a scheduler TDIU for the period beginning March 7, 2007. The central inquiry in a claim for TDIU 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). After review of the evidence, the Board finds that the Veteran is unemployable due to service-connected PTSD. He last worked full time in March 2010 when he was employed as a supervisor electrician at Tinker Air Force Base (AFB). During an October 2010 VA examination, the Veteran reported that he graduated high school, but had no other education aside from courses related to his career as an electrician. He worked as an electrician in the civil service at Tinker AFB from 1988 to March 2010, and reported that he sought an early retirement due to his PTSD symptoms and an expectation that he would be terminated soon due to decreasing performance. The Veteran testified during the June 2010 hearing that his situation at work had become extremely difficult prior to his retirement in March 2010. He had many problems with his boss and had been reprimanded on several occasions. He was moved to three different jobs due to conflicts and retired early to avoid being fired. Similar statements were made during an earlier hearing in October 2008, when the Veteran testified that he found work overwhelming and often experienced episodes of anxiety that required him to sit alone and recover. He also testified that his leave balance had been almost entirely depleted as he often missed work due to PTSD symptoms. The Board finds that the Veteran's testimony and statements are credible, especially in light of the proposed reprimands from his place of employment included in the claims file. In January 2009, the Veteran was reprimanded for not working his scheduled tour of duty and changing his hours without proper authorization. The record also contains competent evidence weighing in favor of the Veteran's claim. In September 2013, a vocational expert concluded that the Veteran was unable to secure or follow a gainful occupation as a result of his service-connected disabilities, specifically PTSD and its accompanying serious symptoms. The vocational expert noted that the Veteran manifested excessive absenteeism at work, interpersonal conflicts with co-workers, and problems working in a structured environment. He also experienced poor judgment, irritability, and panic attacks while at work. The September 2013 opinion was rendered following a complete review of the Veteran's claims file and included reference to specific evidence from the record. The Board therefore finds that it is entitled to substantial probative value. There is also medical evidence weighing against the claim. Upon VA contract examination in April 2007, the Veteran reported that he had a good relationship with his co-workers and supervisor and did not miss any time from work. In October 2010, during a VA psychiatric examination, the Veteran stated that he experienced clashes with his bosses and had been transferred several times to different work areas. He also experienced irritability, anxiety, and nervousness at work. The VA examiner concluded that the Veteran's PTSD resulted in moderate impairment and assigned a Global Assessment of Functioning (GAF) score of 60, consistent with only moderate difficulty in occupational functioning. See Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). The Veteran's records of VA psychiatric treatment also do not support the claim for TDIU. He began VA mental health treatment at the Oklahoma City VAMC in January 2007complaining of irritability and emotional spells at work. Although he reported feeling overwhelmed by work in March 2009, the statements made to his VA health care providers do not indicate a disability picture as severe as that described by the Veteran during the October 2008 and June 2010 hearings. The Veteran has also repeatedly stated that he under-reported the symptoms he experienced while receiving treatment and while undergoing evaluation by VA examiners. He wanted to present himself as normal out of fear of losing his job and security clearance. The Veteran also testified in October 2008 that he feared the stigma associated with psychiatric care. Again, the Board finds the Veteran's statements and testimony are credible. The Board therefore finds that the weight of the evidence establishes that the Veteran is unemployable due to symptoms associated with service-connected PTSD. While there is some medical evidence weighing against the claim, specifically the findings of the VA examiners and health care providers, the Board finds that it is outweighed by the evidence in favor of the claim. The September 2013 vocational expert provided a well-supported opinion in support of unemployability and the Veteran has provided competent and credible testimony describing the effect of his PTSD on his ability to work. The Veteran has also credibly testified that he often under-reported the symptoms of his PTSD in an effort to avoid reprisals at work. Thus, the claim for entitlement to TDIU is granted. As a final matter, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. In addition, the claim for TDIU came before the Board as part of an appeal for an increased rating. As the claim for TDIU is being granted, the Veteran is not prejudiced by the lack of initial adjudication by the RO. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced). ORDER Entitlement to TDIU is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs