Citation Nr: 1603663 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-18 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The Veteran's service-connected posttraumatic stress disorder (PTSD) precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Total disability ratings for compensation may be assigned 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, and that, if there are two or more 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). In this case, the Veteran is service-connected for PTSD, evaluated as 70 percent disabling; a heart disability, evaluated as 60 percent disabling; tinnitus, evaluated as 10 percent disabling; and left ear hearing loss, scars, and an incisional ventral hernia, each at noncompensably (zero percent) disabling. His combined disability rating is 90 percent. Therefore, the Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The Veteran alleges his PTSD renders him unemployable. He has no post-secondary education and his occupational experience is limited to factory work. See September 2010 VA Form 21-8940. At his February 2013 VA psychiatric examination, the Veteran reported that he had been retired since May 1994 and that he started working as a factory worker in 1965 before going to Vietnam. Upon his return, he continued his employment as a factory worker. According to the Veteran, he "worked with asbestos" and received a retirement package because he did not have a choice; stating "it was a package they offered us to get us out of there." He also reported that he has remained unemployed since that time because "[he] had problems getting along with people and [he] was just lucky the bosses were good to [him]." He reported that he attempted to obtain employment where he did not have to work with others due to his anger, which would almost cause physical altercations. See id. There is conflicting evidence concerning whether the Veteran is unemployable due to his service-connected PTSD. Specifically, in VA treatment records dated in March 2008, October 2008, July 2010, and July 2011, the Veteran's treating psychiatrist, R.M.B., specifically indicated the Veteran is permanently and totally disabled and unemployable due to his PTSD. Notably, Dr. R.M.B. assigned a Global Assessment of Functioning (GAF) score of 50, reflective of serious impairment in occupational functioning. See 38 C.F.R. §§ 4.125, 4.130. Against the claim is the opinion of the February 2013 VA PTSD examiner, who found that the Veteran's PTSD symptoms were not of such a severity as to preclude employment. (Additionally, the Board acknowledges in passing an April 2013 VA treatment record authored by psychiatrist N.J.T. that notes the Veteran remains "totally disabled and unemployable." However, as Dr. T. attributes the Veteran's unemployability to both "mental and physical health problems," and does not specify whether the health problems responsible for unemployability are ones that are service-connected, the opinion is afforded little probative weight.) Overall, the evidence is at least in equipoise as to whether the Veteran's service- connected PTSD precludes substantially gainful employment consistent with the Veteran's education and occupational experience. Affording him the benefit of the doubt, a TDIU is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.16(a). ORDER A TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs