Citation Nr: 1418258 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 08-18 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for post-traumatic stress disorder (PTSD) for the period from May 30, 2006 to June 17, 2012. 2. Entitlement to an initial rating higher than 70 percent for PTSD for the period since June 18, 2012. 3. Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that granted service connection and a 50 percent rating for PTSD, effective May 30, 2006. In April 2012, the Board remanded the issue of entitlement to an initial rating higher than 50 percent for PTSD for further development. The Board also determined that the issue of entitlement to a TDIU rating was raised during the Veteran's previously appealed increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). An October 2012 RO decision increased the rating for the Veteran's service-connected PTSD to 70 percent, effective June 18, 2012. Since that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to an initial rating higher than 50 percent for PTSD for the period from May 30, 2006 to June 17, 2012, and entitlement to an initial rating higher than 70 for PTSD for the period since June 18, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service-connected disabilities are PTSD (rated 70 percent); cluster headaches (rated 50 percent); tinnitus (rated 10 percent); and bilateral hearing loss (rated 0 percent). The combined disability rating is 90 percent. 2. The Veteran's service-connected disabilities are of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to a TDIU rating. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Subjective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's service connected disabilities are PTSD (rated 70 percent); cluster headaches (rated 50 percent); tinnitus (rated 10 percent); and bilateral hearing loss (rated 0 percent). The combined disability rating is 90 percent. Thus, the Veteran satisfies the percent rating standards for a TDIU rating under 38 C.F.R. § 4.16(a). The Veteran essentially contends that his service-connected disabilities, to specifically include his service-connected PTSD and cluster headaches, prevent gainful employment, warranting a TDIU rating. The Veteran completed one year of college. He last worked full-time in 1996 as an auto mechanic. He also referred to self-employment which involved "model making" from 1998 to 2003, but states that he failed and lost money. A June 2012 VA psychiatric examination report noted that the Veteran's claim file was reviewed. The Veteran reported that he stopped working as an auto mechanic in 1996 when the business closed down and that he was not able to secure another job at that stage. At the time he stopped working, he had serious problems due to anger, and difficulty getting along with people. He said that he suffered from prostrating headaches that made him angry. The diagnosis was PTSD. A Global Assessment of Functioning (GAF) score of 45 was assigned. The examiner reported that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner said that the Veteran, if still working, would have been unable to function in occupational settings including general employment settings and sedentary employment; the Veteran would have been able to function in loosely supervised settings in which little interaction with the public was required. The examiner maintained that the Veteran's psychiatric disorder (PTSD) alone did not render him unemployable. It was noted that the Veteran was currently receiving disability benefits from the Social Security Administration (SSA) for headaches, which was the main reason he was unable to work. [While the Veteran was service connected for headaches at this time, the disability was rated as noncompensable.] A January 2014 VA headaches examination report included a notation that the Veteran's claim file was not available for review. The diagnoses were migraine headaches and cluster headaches. The examiner reported that the Veteran's service-connected headache condition impacted his ability to work, indicating that the Veteran had difficulty concentrating due to his headache pain. The examiner maintained that, during the time that the Veteran would experience headaches, he would have difficulty with concentration and focusing, which would limit his functional ability. A January 2014 VA psychiatric examination report noted that the Veteran's claim file was not reviewed. The diagnosis was PTSD. The examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and his ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner noted that the Veteran was presently a retired automotive mechanic and that he denied any further education since the previous examination. The examiner reported that the Veteran stated that his current disability rating of 70 percent was an accurate representation of his PTSD symptoms; he did not contend that he was unemployed due to the effects of his psychiatric disorder. He had been retired since 1995 and believed that his unemployment was related to his chronic cluster headaches which were unpredictable and made it difficult for him to maintain daily living within a cycle of headaches. The examiner found that the Veteran's service-connected disabilities rendered him unable to secure and maintain substantially gainful physical and/or sedentary employment. The Veteran had difficulty in dealing with peers, supervisors, and the public due to his irritability and anger associated with his diagnosed PTSD. The Veteran would have great difficulty in maintaining a forty-hour work week as he suffered from chronic cluster headaches. The Veteran would not be predictable in maintaining emotional stability over an eight-hour work day; he would have difficulty in controlling his irritability and anger as it related to his diagnosed PTSD. The Board concludes that the Veteran's service-connected disabilities alone, to specifically include his service-connected PTSD and cluster headaches, have rendered him unable to secure or follow a substantially gainful occupation and a TDIU rating is warranted. ORDER Entitlement to a TDIU rating is granted. REMAND The Veteran was last issued a supplemental statement of the case addressing the issues of entitlement to an initial rating higher than 50 percent for PTSD for the period from May 30, 2006 to June 17, 2012, and entitlement to an initial rating higher than 70 for PTSD for the period since June 18, 2012, in September 2012. Subsequent to the issuance of the September 2012 supplemental statement of the case, additional medical evidence, to include a January 2014 VA psychiatric examination report, has been obtained, and has not been considered by the RO. The Veteran has not submitted a waiver with regard to initial RO consideration of the additional medical evidence. Thus, this evidence must be considered by the RO on remand. 38 C.F.R. 20.1304 (2012); See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following: Readjudicate the appeal. If either benefit remains denied, issue a supplemental statement of the case, which takes into account all evidence submitted since the last supplemental statement of the case (to specifically include the January 2014 VA psychiatric examination report), and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters 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. 2013). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs