Citation Nr: 1629534	
Decision Date: 07/25/16    Archive Date: 08/04/16

DOCKET NO.  14-28 542A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

Ryan Frank, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Army from December 1952 to December 1954, including combat service in the Korean War.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  Jurisdiction was subsequently transferred to the RO in Phoenix, Arizona.

In his August 2014 substantive appeal (VA Form 9), the Veteran requested a hearing before the Board at the RO.  In a May 2016 statement, the Veteran's representative indicated that the Veteran's condition now makes it impossible for him to attend a hearing.  The Board therefore deems his hearing request withdrawn pursuant to 38 C.F.R. § 20.702 (e) (2015).  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Accordingly, any future consideration of the appellant's case should take into account those electronic records.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's service-connected disabilities, including posttraumatic stress disorder (PTSD), bilateral hearing loss, and tinnitus, meet the schedular requirements for the award of TDIU, and competent evidence of record indicates that the nature and severity of these disabilities as likely as not prevent him from securing or following substantially gainful employment consistent with his educational background and work experience.  


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for the award of 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 (2015).   


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim.  See 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(b)(1) (2015).  VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).  In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision.

II.  TDIU

A.  Governing Law

VA will grant TDIU when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from securing or following substantially 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(a), consideration of TDIU is warranted if a veteran has a single disability rated 60 percent or more or multiple disabilities with a combined rating of 70 percent or more, provided that at least one disability is rated 40 percent or more.  


B.  Analysis

The Veteran asserts that he is unable to work due to his service-connected disabilities, which include PTSD, bilateral hearing loss, and tinnitus.  The Veteran combined disability rating is 80 percent; his highest single rating is 70 percent for PTSD.  He is therefore eligible for TDIU under 38 C.F.R. § 4.16(a).  

In a December 2012 statement, the Veteran indicated that he became too disabled to work in 2002 and, before that, had worked as a security guard.  He also reported that he has no education or training other than four years of high school.  

A July 2012 VA examiner opined that the Veteran's PTSD caused total occupational and social impairment and assigned a Global Assessment of Functioning (GAF) score of 31.  The Veteran reported that his PTSD symptoms caused him to leave his employment.  The examiner agreed that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning.  The examiner noted symptoms including depressed mood, anxiety, panic attacks, chronic sleep impairment, memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a worklike setting, and inability to establish and maintain effective relationships.  

An October 2012 VA examiner opined that the Veteran's PTSD symptoms were mild to moderate and did not, by themselves, render the Veteran unable to obtain or maintain substantially gainful employment.  Unlike the July 2012 examiner, who examined the Veteran, the October 2012 examiner relied solely on a review of the Veteran's claims file.  The October 2012 examiner noted treatment records that listed GAF scores of 55 to 60, but did not address the GAF score of 31 assigned by the July 2012 examiner.  The October 2012 examiner also did not address the disparity between her overall view of the Veteran's level of functioning and that of the July 2012 examiner.  In that regard, the Board finds that the October 2012 examiner's characterization of the Veteran's PTSD symptoms as mild to moderate is inconsistent with his 70 percent disability rating for that disorder.  

There is no indication that the Veteran's condition has improved since the 2012 examinations.  Since March 2015, he has been receiving hospice care.  Hospice treatment records indicate that the Veteran's memory loss has become very significant and he is no longer alert or oriented to person, place or environment.  Memory loss was among the PTSD symptoms noted by the July 2012 examiner.  

The Veteran is eligible for TDIU under 38 C.F.R. § 4.16(a).  Moreover, because the July 2012 examination report was based on an actual examination of the Veteran, is more consistent with the Veteran's disability rating, and the October 2012 examination report does not address the July 2012 examiner's findings, the Board finds that the July 2012 examination report is more probative evidence of the Veteran's impairment than the October 2012 report.  

Given the Veteran's limited educational and occupational experience, along with the significant occupational impairment caused by his PTSD, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected conditions render him unemployable under the applicable regulations.  As reasonable doubt must be resolved in favor of the Veteran, the Board finds that entitlement to TDIU is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

TDIU is granted, subject to the provisions governing the award of monetary benefits.  


____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs