Citation Nr: 1756924 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 09-43 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that granted service connection for posttraumatic stress disorder (PTSD) with an initial 10 percent rating, effective March 1, 2007 In June 2010, the Veteran and his wife testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. In August 2014, the Board found that the issue of entitlement to a TDIU had been raised as part of the initial rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). In the August 2014 decision the Board also granted an initial rating of 50 percent for PTSD effective the date of service connection. As a result, in combination with subsequent grants of service connection, the Veteran has had a combined 100 percent rating since May 7, 2013. FINDING OF FACT The Veteran has met the percentage requirement for TDIU since February 9, 2009; but his service connected disabilities did not precluded gainful employment prior to May 7, 2013; and no single service connected disability has precluded gainful employment since that date. CONCLUSION OF LAW The criteria for the assignment of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to establish entitlement to TDIU due to service-connected disability, there must be impairment so severe that an average person is unable to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent schedular evaluation. Subjective criteria provide for TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Since February 9, 2009, the Veteran has met the percentage criteria for TDIU under 38 C.F.R. § 4.16(a). His service-connected disabilities since that date have consisted of post-traumatic stress disorder (PTSD), rated as 50 percent, and diabetes mellitus, rated as 20 percent. The combined disability rating is 60 percent since February 9, 2009. Because these disabilities were incurred in action in Vietnam, they are considered as one disability for purposes of TDIU. 38 C.F.R. § 4.16(a). The remaining inquiry is whether he was unable to secure or follow substantially gainful employment due to his service-connected PTSD. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16 (a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). An April 2009 VA psychiatric examination report noted that the Veteran stated that physical impairment had forced him to leave his job at a dry cleaning business. At the June 2010 hearing, the Veteran testified that he had not recently been employed. When asked why, he referred to a back disability and swelling in his ankles A November 2010 VA psychological examination report noted that the Veteran had been unemployed for several years without discussing the reasons. Records from the Social Security Administration (SSA) note that the Veteran was last employed on a full time basis from 2007 to August 15, 2008, at which time he left his job at a dry cleaning business. He had been working five days per week prior to that time; he was employed full time from 1995 to 2003 at a manufacturing plant, as well as from 2004 to 2006 as a security guard. SSA found the Veteran disabled by virtue of unspecified arthropathies and drug substance abuse disorders. The evidence of record supports a finding that the Veteran's service-connected PTSD and diabetes mellitus have rendered him unemployable since February 9, 2009. In this regard, the evidence suggests that the Veteran was unable to work consistently and maintain substantially gainful employment, due to physical impairment caused by his service-connected disabilities. Additionally, SSA records indicate that the Veteran has not been employed on a full time basis since August 15, 2008. The SSA finding of disability was based on other unspecified arthropathies and (drug) substance addiction disorder. Documentation provided in the VA examination reports all indicate that the Veteran has not been unemployed since around 2008. Global assessment of functioning scores during the appeal period ranged from the 60s indicative of mild disability to 51, which was at the high end of the moderate range with a score of 50 being indicative of severe disability. On one occasion he was given a GAF of 48, indicative of serious impairment. Diabetes has been described as uncontrolled at times, but it has not been found to require regulation of activities. The Veteran developed significant peripheral neuropathy that was service connected at the time his 100 percent rating. Although the Veteran has been unemployed throughout the relevant period, there is essentially no evidence that his unemployability was attributable to service connected disabilities prior to the effective date of the 100 percent rating. The Veteran consistently reported that he was not working due to non-service connected physical disabilities and SSA attributed his inability to work to non-service connected conditions. There is no evidence linking the reported substance abuse to PTSD, but even if there were, SSA found the arthropathies to be the principal factor in his unemployability. One GAF on one occasion implied that PTSD was of a severity that would preclude keeping a job; but this report was isolated and outweighed by all other findings. TDIU could be provided during the period when the combined 100 percent was in effect, only if the TDIU was awarded on the basis of a single disability. Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The issue of entitlement to SMC is deemed a part of the TDIU and rating claims before the Board. Id. The Veteran had a single service-connected disability rated as total, and service-connected upper and lower extremity peripheral neuropathy and diabetes that combined to meet the 60 percent or more rating, effective May 7, 2013. Thus, entitlement to SMC at the housebound rate under 38 U.S.C.A. § 1114 (s) is granted, effective May 7, 2013. The record shows that since May 7, 2013, in addition to PTSD and diabetes, service connection was established for peripheral neuropathy of each extremity and erectile dysfunction. No single disability has been found to cause unemployability. In February 2014 an examiner found that diabetes would not have an impact on employment and that there was mild to moderately severe incomplete nerve paralysis in each extremity. The examiner concluded that the peripheral neuropathy wound not impact his ability to work. The weight of the evidence is thus also against the grant of TDIU during the period since May 7, 2013. ORDER Entitlement to TDIU is denied. _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs