Citation Nr: 1343216 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 12-12 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1966 to May 1969. He is the recipient of the Combat Infantry Badge. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in part, continued a 30 percent disability evaluation for PTSD and denied the Veteran's claim of entitlement to a TDIU. During the pendency of this appeal, in a March 2012 statement of the case, the RO increased the disability evaluation for PTSD from 30 percent to 50 percent disabling effective the date of the claim. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The issue of an increased evaluation for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate "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(a)(1), 4.15 (2013). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2013). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the Veteran need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. 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 (2013). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2013). In this case, the Veteran is currently service-connected for PTSD, evaluated as 50 percent disabling; incomplete sensory paralysis of the left radial nerve, evaluated as 20 percent disabling; residuals of fracture of the left radius and ulna with residual surgical scars, evaluated as 10 percent disabling; bilateral tinnitus, evaluated as 10 percent disabling; bilateral hearing loss disability, evaluated as non-compensable; coronary artery disease with pacemaker, evaluated as 10 percent disabling (60 percent prior to February 28, 2011); and scar for pacemaker implantation, evaluated as 10 percent disabling. His current combined rating is 70 percent. Accordingly, the Veteran has met the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) at all times during the appeal period. The remaining question is whether his service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. As noted above, the central inquiry 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). On his September 2010 formal application for TDIU, the Veteran indicated that he had completed four years of high school education. He worked for the United States Postal Service until July 2007. The relevant evidence of record includes a May 2010 letter from C.L., M.D. who noted treatment of the Veteran for ongoing conditions, including PTSD, right knee osteoarthritis, agoraphobia, and depression. She indicated that these conditions decreased his reliability and productivity and that he had memory loss, impaired judgment and abstract thinking, and disturbances of motivation and mood. She found that he was not able to work or maintain social relationships. Additionally, an October 2010 VA PTSD examination report noted the Veteran's statements that he quit his job at the post office due to severe flashback and nightmares, as well as medical problems. He also indicated that it was a high stress job and that he had on the job arguments. Based on review of the claims folder and examination of the Veteran, the examiner determined that the he was not able to work due to his medical and psychiatric problems, and was therefore unemployable at the present time. The Veteran was also afforded examinations for his other service-connected disabilities. In October 2010, a VA audiological report noted that the Veteran indicated that his tinnitus affected his concentration at work. However, the examiner found that with soft background noise, his tinnitus should have little impact on his physical and sedentary employment. Likewise, she stated that with amplification, his hearing loss should have little to no impact on his physical and sedentary employment. Additionally, a March 2010 VA heart examination report showed that the Veteran's heart disorder had a moderate effect on his occupation and daily activities. Based on the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that a TDIU is warranted. Although the Veteran's heart and hearing disabilities do not appear to render him unemployable, the Veteran's PTSD does. While Dr. L referenced non-service connected disabilities in addition to PTSD as contributing to the Veteran's unemployability, she clearly indicated PTSD as a factor in the Veteran's inability to work. In any case, the October 2010 VA examiner's opinion is clear that the Veteran's PTSD renders him unemployable. Therefore, a TDIU is warranted. ORDER Entitlement to a TDIU is granted, subject to the regulations governing the award of monetary benefits. REMAND As to the increased evaluation for PTSD, the Board finds that additional development is warranted before a decision may be rendered. During his October 2010 PTSD examination, the Veteran indicated that he had been in receipt of disability benefits from the Security Administration (SSA) since October 2007. A review of the claims folders shows that no SSA records have been associated with the claims folder. Additionally, the record shows that the Veteran has continued to receive on-going treatment at the VA Medical Center. As VA is on notice that there are records that may be applicable to the Veteran's claim and because these records may be of use in deciding the claim, these records are relevant and should be obtained. See 38 C.F.R. § 3.159 (c) (2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records. All efforts to obtain the additional evidence must be documented in the paper claims folder/electronic file. If the search for such records has negative results, documentation to that effect should be included in the claims files/electronic file. 2. Obtain any and all SSA records concerning the Veteran. The RO must perform all follow up indicated and document negative responses. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran 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 of Veterans' Appeals 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. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs