Citation Nr: 1339113 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-39 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based upon individual employability (TDIU). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to March 1969, including honorable service in the Republic of Vietnam. The Veteran is also in receipt of numerous awards and decorations, including the Purple Heart Medal. This case comes before the Board of Veterans' Appeal (Board) on appeal of September 2009 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied the benefit on appeal. In August 2011, the Veteran appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS. The Board has reviewed both the paper and electronic records in rendering this decision. FINDINGS OF FACT 1. The Veteran is currently in receipt of service connection for posttraumatic stress disorder (PTSD), rated at 70 percent disabling; gunshot wound of the abdomen, rated at 40 percent disabling; neuropathy of the right femoral cutaneous nerve, rated at 20 percent disabling; bilateral hearing loss, rated at 20 percent disabling; exit wound scar at the right lateral flank, rated at 10 percent disabling; abdominal scar, rated at 10 percent; tinnitus, rated at 10 percent disabling; and an entrance wound scar in the abdomen, rated noncompensable. His combined rating is 90 percent. 2. Due to his service-connected disabilities, the Veteran is unable to obtain or retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein as to entitlement to a TDIU, the Board finds that any deficiencies in notice or assistance were not prejudicial to the Veteran. Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual employability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether employability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Factual Background and Analysis The Veteran contends that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. For the reasons discussed below, the Board agrees. The Veteran essentially contends that his PTSD symptoms have exacerbated to include increasing symptoms of suicidal ideation, depression, and anxiety symptoms. He contends that these symptoms prevent him from working. The Veteran's service-connected disabilities include PTSD, rated at 70 percent; gunshot wound of the abdomen, rated at 40 percent; neuropathy of the right femoral cutaneous nerve, rated at 20 percent; bilateral hearing loss, rated at 20 percent; exit wound scar at the right lateral flank, rated at 10 percent; abdominal scar, rated at 10 percent; tinnitus, rated at 10 percent; and an entrance wound scar in the abdomen, rated noncompensable. His combined rating is 90 percent. Therefore, the Veteran's service-connected disabilities meet the percentage rating standards for a TDIU. 38 C.F.R. § 4.16(a). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. Following his claim for a TDIU, the Veteran was afforded a PSTD examination in June 2009. The Veteran indicated that he was retired. The examiner noted increasing intensity and frequency of combat-related nightmares, daily intrusive imagery, emotional distress, depression, anxiety, and decreases in social functioning (social withdrawal, judgment, and trust). The examiner also indicated the Veteran had increasing cognitive concerns with respect to attention, focus, and short-term memory. The examiner did not opine as to the impact the Veteran's PTSD has on his employability. In his September 2009 application for TDIU, the Veteran indicated that he last worked in April 2002. He noted that he had two years of college, but denied undergoing any additional training or education before he was too disabled to work. In December 2009, the Veteran was also afforded VA examinations with respect to his other service-connected disabilities. The examiner opined that the Veteran had no general occupation effect due to his service-connected gunshot wound residuals, including his right cutaneous femoral nerve injury. The examiner noted that the Veteran is not currently employed because he retired in 2002. She noted that the cause of the retirement was because he was eligible by age or duration of work. In a letter from the Veteran's treating therapist, received in October 2011, he indicated that the Veteran has the highest severity of PTSD symptoms according to the PTSD severity scale. Following a discussion of the Veteran's current symptoms and identification of the Veteran's PTSD as "chronic" or "treatment resistant," the therapist opined that the Veteran's PTSD "has worsened to the point that he is unable to secure of follow a substantially gainful occupation as a result of his symptoms." In October 2011, VA received a letter from the Veteran's treating psychiatrist who opined that the Veteran's PTSD "prevents him from acquiring and sustaining gainful employment." She indicated that he did not expect her assessment to change and completely agrees with the findings of the Veteran's therapist. Also received in October 2011 is a letter from the Veteran's former supervisor who described the Veteran's behavior while he was still employed. Ultimately, he indicated that the Veteran, although a hard worker, presented with unacceptable behavior and deterioration of his demeanor. Based upon review of the evidence as a whole, the Board finds that the Veteran is unable to secure or maintain any substantially gainful employment due to his service-connected disabilities. The most probative evidence of record is the 2011 opinions from the Veteran's therapist and psychiatrist finding that the Veteran is incapable of obtaining and maintaining substantially gainful employment due to his increased PTSD symptoms. There is no clinical opinion to the contrary that includes some consideration of his PTSD symptomatology. The Board is aware that the December 2009 VA examiner found that the Veteran's gunshot wound-related injuries did not have effects on his occupation, but the great weight of the evidence shows that his PTSD symptoms are what render him unemployable. Ultimately, the Board finds that preponderance of the evidence establishes that this Veteran, given his occupational history and educational level, is unable to obtain or retain substantially gainful employment due to his psychologically limiting service-connected disabilities. The claim of entitlement to TDIU is thus granted. ORDER Entitement to TDIU is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs