Citation Nr: 1603368 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-21 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Rebecca C. Wanee, Attorney ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to January 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT Throughout the period on appeal, the Veteran has met the threshold percentage requirements and the evidence indicates he is unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to a TDIU. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2015) before the Board decides the claim. Legal Criteria 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. 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. "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 (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Service connection has been established for post-operative disc disease of the lumbar spine, rated as 40 percent disabling; fibromyalgia, also rated as 40 percent disabling; posttraumatic stress disorder (PTSD), rated as 30 percent disabling; as well as degenerative arthritis of the right knee and hypertension, both rated as 10 percent disabling. The combined rating is 80 percent. As such, the Veteran has satisfied the scheduler criteria for a TDIU under 38 C.F.R. § 4.16(a). After consideration of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected disabilities, notably the PTSD and lumbar spine degenerative disc disease, have rendered him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. The Veteran has previously worked as a tire builder, assembler, mechanic, machinist, lube technician, and shelver. These jobs generally required some degree of communication/interpersonal skills, as well as a large measure of manual labor. During the period on appeal, the Veteran has received outpatient psychiatric therapy at the Memphis VA Medical Center (VAMC). His global assessments of functioning have ranged from 45-53 throughout the period on appeal, which is indicative of significant impairments resulting from a psychiatric disorder. His outpatient treatment records show consistent manifestations of psychiatric symptoms that include concentration impairments, depressed mood, intermittent suicidal ideations, anhedonia, social withdrawal, irritability, hypervigilance, and an acute startle response. In an occupational setting these symptoms clearly would result in problematic interpersonal interactions. The Board also notes the Veteran underwent a comprehensive psychiatric examination as a result of his claim for social security disability insurance (SSDI) benefits with the Social Security Administration (SSA) in January 2009. Relative to functional impairments caused by his psychiatric disability, the examiner stated: "he would have difficulty maintaining concentration and attention for more than 1 or 2 hours. Furthermore, he is incapable of interacting appropriately with coworkers and accepting supervision." At that time, the Veteran also underwent functional capacity assessments, wherein the examiners noted the Veteran would have difficulty with concentration and social interactions due to his psychiatric disability, as well as problems with jobs requiring prolonged periods of standing, balancing, crouching, crawling, stooping, walking or lifting heavy objects at least in part as a result of his service-connected right knee and lumbar spine disabilities. In this regard, the Board notes the Veteran's past work experiences have all required those precise tasks. Further, the evidence shows the Veteran has a 12th grade formal education, and as noted above, has chiefly worked in manual labor positions. The Board also observes the above-noted record of the January 2009 SSA psychiatric assessment shows the examiner found the Veteran to be functioning in the low average range of intelligence, which would likely impair his ability to obtain additional specialized training or education. As a result of these assessments, the Veteran was awarded SSDI in June 2009. The Board further observes the Veteran's PTSD was found to be the primary diagnosis upon which SSDI was established. In addition, the Board notes the Veteran underwent VA examinations in August and December 2008, April and August 2009, August 2010, November 2012 and December 2012. The reports of these examinations consistently show extensive occupational impairments resulting from the Veteran's lumbar degenerative disc disease and PTSD. For example, in an August 2010 psychiatric examination, the examiner assigned a GAF score of 51, which is indicative of serious psychiatric impairments. The examiner further stated the Veteran exhibits intense anger, socially isolates and uses avoidance as his only means of protecting himself from overwhelming anxiety. The August 2009 and November 2012 examiners stated the Veteran's back and right knee conditions would preclude any job that required strenuous, physical or manual labor. The August 2009 examiner specifically indicated his prior most recent occupation of tire builder would be too strenuous. In May 2009, the Veteran underwent additional examinations. At that time, the spine examiner stated the Veteran was, "unable to do any sort of strenuous active work." Additionally, the psychiatric examiner stated the Veteran's psychiatric symptoms made employment difficult as a result of his anxious mood, irritability, diminished interest, and medications. The Board acknowledges that the individual VA examiners have stated the Veteran's service-connected disabilities in isolation do not totally preclude him from obtaining and maintaining all forms of substantially gainful employment. However, the Board notes these opinions do not address the Veteran's service-connected disabilities in combination, and also fail to consider the Veteran's educational and occupational backgrounds. In this regard, the RO has denied the Veteran's claim because the evidence shows he could obtain and maintain some form of sedentary employment. The Board observes that the RO failed to provide even slight consideration relative to the Veteran's educational and occupational background. In sum, the Board is satisfied that the Veteran's service-connected disabilities are sufficiently severe to render him unable to maintain any form of substantially gainful employment consistent with his limited education and occupational background. Accordingly, a TDIU is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a TDIU is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs