Citation Nr: 1511849	
Decision Date: 03/19/15    Archive Date: 04/01/15

DOCKET NO.  00-04 028	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

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


WITNESSES AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Gibson, Associate Counsel







INTRODUCTION

Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty from March 1978 to May 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.


FINDING OF FACT

In resolving all doubt in the Veteran's favor, his service-connected psychiatric and skin conditions have rendered him unemployable for the entire period under consideration.


CONCLUSION OF LAW

The criteria for a TDIU have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

TDIU

When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability.  38 C.F.R. § 3.340 (2014).  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 (2014).  In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38 C.F.R. § 4.15 (2014). 

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; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment.  38 C.F.R. § 4.16(a).

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).  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).

The Veteran is service connected for pseudofolliculitis barbae, rated as 50 percent disabling from April 22, 1998 to August 30, 2002, and rated as 60 percent disabling thereafter; for adjustment disorder, rated as 30 percent disabling since June 26, 2000; and, for gastroesophageal reflux disease (GERD), rated as 10 percent disabling since June 9, 2000.  His combined disability rating was 60 percent effective June 9, 2000; 70 percent effective June 26, 2000; and, 80 percent effective August 30, 2002.  His claim was received in September 2001, and he has met the schedular requirements for a TDIU, under section 4.16(a), since June 26, 2000.  The record indicates that he has not worked since 1999.

The Board finds the Veteran is entitled to a TDIU for the entire period under consideration.  Initially, the Board notes he has been found disabled by the Social Security Administration (SSA) because of his adjustment disorder since 2003.  A psychiatric evaluation conducted by SSA found the Veteran to be on the borderline range of intelligence and memory.  He was found to have only fair abstract reasoning and fair concentration.  He was found to have good ability to follow instructions, but noted to have difficulty working under stress.  It was also noted that his symptoms would result in inconsistent work performance.

VA treatment records show a diagnosis of major depression disorder with psychotic features in February 2002.  He had delusions in that he believed people were plotting against him, and that he was being followed.  He reported urges and troubling thoughts of hurting people, especially people and institutions that he viewed as having harmed him.  He does not trust people.  

His records show that his symptoms decreased in severity for a period of time sometime in or around 2003, and the evidence does not contain much evidence for the period just following that time.  However, in July and August 2009, his treating physician noted his symptoms would complicate his abilities to work, and that he was struggling with paranoia, anxiety, depersonalization, derealization, trouble leaving the house, sleep problems and nightmares.  Further, he had a history of nonadherence to medication.  

His symptoms again decreased in severity sometime in or around 2010, when he was being more active within the community and reporting less paranoia.  However, the May 2011 VA examination noted that diagnostic testing showed he was on the lower end of the severe range for depression.  He was also found to have impairment in recent memory.  The October 2013 VA examiner noted that his irritability would create notable problems with employment, and that he would need a position that allowed him to have little interaction with others.  His mood was also noted to be quite variable and "situation dependent," which would limit his employability.  That examiner found his symptoms could be accommodated with a flexible schedule, limited interaction with the public, and other unspecified modifications.

His pseudofolliculitis barbae puts him at risk for skin infections.  The VA examiner opined that he would need to work in a dust-free and sedentary environment, with no excessive sweating, and no lifting over 15 pounds.

The record shows the Veteran has some college, but has not worked since 1999.  His employment varied prior to that, and his last position was in data entry.  The record does not show that he has specialized training.  Physicians have opined that he needs sedentary employment that does not cause sweating and that is in a dust-free and clean environment.  He needs accommodations that allow for a flexible schedule that does not require him to interact with the public.  Regardless of accommodations, his performance is predicted to be inconsistent, and to be impacted by stress.  He is good following directions, but his short term memory and concentration are impaired.  He has borderline intelligence.  In light of the accommodations he requires and his limited education and training, along with SSA's finding that his psychiatric disability precludes him from looking, the Board finds that all doubt should be resolved in the Veteran's favor, and a TDIU is granted.


ORDER

A TDIU is granted.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs