Citation Nr: 1341541	
Decision Date: 12/17/13    Archive Date: 12/31/13

DOCKET NO.  11-01 962	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial rating for posttraumatic stress disorder (PTSD), in excess of 30 percent disabling.  

2.  Entitlement to an initial increased rating for coronary artery disease (CAD), in excess of 30 percent disabling.  

3.  Entitlement to an increased rating for bilateral hearing loss, currently rated as noncompensable.  

4. Entitlement to a total disability rating for individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Kenneth L. LaVan, Attorney




WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from May 1968 to May 1970 and received a Combat Infantryman Badge.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from two different rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In September 2009, the RO granted service connection for PTSD, rated 30 percent disabling, effective April 24, 2009; and continued the bilateral hearing loss noncompensable rating.  In November 2010, the RO granted service connection for CAD at 10 percent disabling; this rating was increased to 30 percent, effective June 2012.  

The issue of entitlement to a TDIU is an element of the increased rating claims.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

The issues of entitlement to: an initial rating in excess of 70 percent for PTSD; a compensable rating for bilateral hearing loss; and higher initial rating for CAD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  



FINDINGS OF FACT

1.  PTSD has been manifested since the effective date of service connection by occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and/or mood with symptoms such as anger, anxiety, depression, self-isolation, and sleep impairment.  

2. The Veteran is unable to secure and maintain substantially gainful employment as a result of his service-connected disabilities, to include PTSD.  


CONCLUSIONS OF LAW

1. The criteria for a 70 percent rating for PTSD have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013).  

2. The criteria for a TDIU are met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

In this decision, the Board grants entitlement to a TDIU and to a 70 percent rating for PTSD.  The claims are substantiated and no further notice or assistance is required. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary.  

PTSD Rating Criteria

The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  See 38 C.F.R. §§ 4.125, 4.130 (2013).  PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders.  

Under the General Rating Formula, a 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances ( including work or a worklike setting); and inability to establish and maintain effective relationships.  Id.  

The Veteran has had variable occupational and social functioning as well as some substance abuse, as noted in the August 2009 VA examination report.  This report also stated that his decrease in substance abuse led to an increase in PTSD symptoms more recently and that he had "variable mild to moderate limitations."  He now had mood dysphoria, social withdrawal, sense of detachment, worsened combat survival guilt and intrusive memories, worsened insomnia, irritability and hyperarousal. 

In June 2012, a VA examiner found there was occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood; such a finding typifies a 70 percent rating.  The examiner also noted progressive increased insomnia, recurrent combat nightmares and intrusive memories, exaggerated startle, hypervigilence, hyperarousal, mood dysphoria, irritability, social anxiety, and emotional detachment.  It was not possible to differentiate what portion of the occupational and social impairment was caused by both PTSD and his depression because the Veteran's chronic anxiety and depression symptoms had been continuous, progressive, biologically and behaviorally interactive and concurrent.  This is consistent with ongoing VA treatment; for example, a June 2012 VA psychology progress note showed that the Veteran had been discharged from individual, couple and group therapy and initially did ok for awhile, but was currently severely depressed and having occupational and marital problems.  

Resolving doubt in favor of the Veteran, the evidence shows that the Veteran has had occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking or mood with the symptoms described above.  This level of impairment most closely approximates the criteria for a 70 percent rating.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.  

Entitlement to a TDIU

In February 2013, the Veteran's wife submitted a statement explaining that in the last year he had been unable to work due to worsening symptoms.  At the March 2013 Board hearing, the Veteran stated he stopped working in August 2012.  (Transcript, p 11.)  He described being unable to deal with his boss and adverse events in the workplace.  Id.  The Veteran stated one reason he was working part-time was because he was doing a lot of therapy and he needed time in the afternoon to see his psychologist and primary care doctor.  Id.  In response to what his earnings were for the last three years of work (2009 to 2012), he stated that his earnings were about $6,000 a year.  (Transcript, p 13.)  

The Veteran is currently service-connected for PTSD (now 70 percent disabling); CAD (30 percent disabling); tinnitus (10 percent disabling); malaria residuals (noncompensable); bilateral hearing loss (noncompensable); and bilateral tinea of the feet (noncompensable); 

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2013).  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341(a) (2013).  

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher.  38 C.F.R. § 4.16(a) (2013).  Such is the case here, as PTSD is 70 percent disabling.  

Section 4.16(a) also states that marginal employment shall not be considered gainful employment.  The ability to work sporadically or just a few hours a day was not substantially gainful employment.  In that case, the Veteran maintained part-time work.  Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).

In his November 2010 application to the Social Security Administration, the Veteran stated he had one year of college from 1968 and detailed his job history for the past 15 years.  His salary ranged from $100,000 a year while self-employed, buying and selling electronic components, to $9.00 per hour working for an electronic recycling business.  His disabilities included service-connected disabilities of CAD, PTSD, hearing loss as well as nonservice-connected disabilities such as sleep apnea and hypertension.  Further details about his jobs as an "account rep" or "sales rep" show he described them as "phone work" and they appeared to be sedentary jobs.  

In a December 2010, SSA evaluation, the psychologist found the Veteran was no longer qualified as a sales representative because he had moderate difficulties in maintaining social functioning in dealing with people and influencing others.  

In addition to the occupational impairment noted above regarding PTSD, the June 2012 VA PTSD examination showed that the Veteran had worked as a full time salesman for many years but only had been able to tolerate working part-time "with decreasing sales performance and increased daily concerns about being fired."  The June 2012 VA heart examination showed that ischemic heart disease only impacted the Veteran's ability to work in that he could not lift over 20 pounds.  September 2009 and June 2012 VA audiology examination reports noted significant effects on his employment and trouble with his hearing aid (although without the hearing aid, he struggled to hear customers).  

The Veteran appears to have been accomplishing only marginal employment prior to completely not working.  Currently, he is unable to maintain substantially gainful employment as a result of a combination of his service connected disabilities.  Based on the evidence, the Board will resolve doubt in the Veteran's favor and grant entitlement to a TDIU.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  


ORDER

A 70 percent initial rating for PTSD is granted.  

Entitlement to a TDIU is granted.  


REMAND

A remand is warranted to obtain a March 2013 vocational assessment by J.S., which is referenced in the Veteran's attorney's March 2013 statement and was mentioned at the March 2013 Board hearing (Transcript, p 3).  This statement apparently mentions PTSD and the hearing disability.  VA has a duty to assist by attempting to obtain this evidence.  38 C.F.R. § 3.159(c)(1).  

A remand is also required to clarify whether the Veteran has ever had congestive heart failure (see November 2012 VA treatment record) and for a new VA examination due to reports that this disability has worsened.  

Accordingly, the case is REMANDED for the following action:

1. Request the March 2013 vocational rehabilitation assessment by J.S. referenced in the Veteran's attorney's March 2013 statement; ensure 38 C.F.R. § 3.159(c)(1) is followed.  

2. After completing the above development, schedule the Veteran for a VA examination for ischemic heart disease.  The claims folder and a copy of this remand should be made available to and reviewed by the examiner prior to completion of the examination report.  All necessary tests should be conducted.  

The report should note: 
* the metabolic oxygen equivalents (METs);
* whether the Veteran has had any congestive heart failure in the past (see November 2012 VA treatment record); 
* the presence of left ventricular dysfunction;
* and the percentage of ejection fraction.  

The examiner must provide complete rationale for all opinions.

3.  If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case and return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).  

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs