Citation Nr: 1536845 Decision Date: 08/28/15 Archive Date: 09/04/15 DOCKET NO. 13-24 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to the Veteran's service-connected disabilities (TDIU) prior to and after December 12, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active military service in the United States Marine Corps from June 2002 to June 2006, which included two tours of duty in the Republic of Iraq. As a result of his service, the Veteran earned a Combat Action Ribbon among his awards and decorations. This case comes before the Board of Veterans' Appeals, (Board) on appeal from a rating action issued in August 2009 by the Department of Veterans Affairs (VA), Regional Office (RO), located in North Little Rock, Arkansas, which denied entitlement to a TDIU. FINDINGS OF FACT 1. The Veteran's service connected disabilities meet the percentage requirements for TDIU and preclude gainful employment for which he would otherwise be qualified prior to December 12, 2014. 2. A 100 percent rating for posttraumatic stress disorder was assigned effective December 12, 2014; his other service connected disabilities did not meet the schedular criteria for a TDIU after that date and extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for the granting of a TDIU have been met prior to December 12, 2014. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). 2. The Veteran's service connected disorders, other than PTSD, do not meet the criteria for a TDIU after December 12, 2014. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran filed a claim for individual employability in 2009. He indicated that he was unable to work due to his service-connected disabilities, i.e., his posttraumatic stress disorder (PTSD), tinnitus, and. In conjunction with his claim, he has submitted statements indicating that he has not been able to keep gainful employment for longer than six months. For example, he stated that his last job was at Home Depot where he had to quit because he could not be around customers or his employer. He has also written that he has suffered from short-attention span, anxiety, and sleeplessness. He has reported last working in 2010. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (2014), if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more; and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2014). The Veteran's disabilities have been evaluated as follows: Posttraumatic stress disorder with secondary depression 70 percent disabling Tinnitus 10 percent disabling Fracture - right wrist 10 percent disabling (After December 11, 2014) Posttraumatic stress disorder with secondary depression 100 percent disabling Tinnitus 10 percent disabling Fracture - right wrist 10 percent disabling Combined Rating 80 percent (prior to December 12, 2014) 100 percent (after December 11, 2014) Consequently, the Veteran has meet the percentage criteria for a total disability rating for compensation purposes based on individual unemployability under the provisions of 38 C.F.R. § 4.16(a) prior to December 12, 2014. VA treatment and examination records show that prior to early 2009 to the present, the Veteran has been assigned Global Assessment of Function (GAF) scores indicative of serious to a pronounced psychiatric disability (GAF scores of 49 and 50). VA treatment records show that the appellant has sought rehabilitation services but that, at one point, he attempted suicide because he could not deal with the symptoms and manifestations of his psychiatric disorder. The record shows that the Veteran is a high school graduate with two years of college. His only reported employment experience has been in menial type jobs, and the Veteran indicated that he is unable to work with others for long periods of time. He has further suggested that his ability to concentrate on tasks is restricted, that he is depressed, and that he has withdrawn from others. He reported he last worked in 2010. In short the current evidence is in relative equipoise on the question of whether the service connected disabilities preclude gainful employment for which the Veteran would otherwise be qualified prior to December 12, 2014. Resolving reasonable doubt in the Veteran's favor, a TDIU is granted prior to December 12, 2014. 38 U.S.C.A. § 5107(b) (West 2014). As of December 12, 2014, a 100 percent rating was assigned for posttraumatic stress disorder. This moots out the TDIU rating as of that date as other than the PTSD, his remaining service connected disorders do not meet the schedular criteria for consideration of TDIU. Moreover, it is not contended that the wrist disorder and the tinnitus preclude employment. As such, extraschedular review is not indicated. ORDER Entitlement to a TDIU is granted prior to December 12, 2014, subject to the law and regulations governing the award of monetary benefits. Entitlement to a TDIU after December 12, 2014 is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs