Citation Nr: 1815374	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  14-04 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), in excess of 50 percent prior to March 19, 2014, and in excess of 70 percent after May 1, 2014 (excluding a temporary 100 percent evaluation from March 20, 2014 to May 1, 2014). 

2. Entitlement to a total rating for compensation based on individual unemployability (TDIU).                      


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

A. Norwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to December 1969. The Veteran also had a service in the Republic of Vietnam. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2011 and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims file.


FINDINGS OF FACT

1. At his November 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issue of entitlement to an increased rating for PTSD, in excess of 50 percent prior to March 19, 2014, and in excess of 70 percent after May 1, 2014.

2. The Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience otherwise qualify him.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for the issue of entitlement to an increased rating for PTSD, in excess of 50 percent prior to March 19, 2014, and in excess of 70 percent after May 1, 2014, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Notice and Assistance

VA has a duty to notify and assist a claimant in developing a claim. 38 U.S.C. 
§§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

II. Withdrawn Issues

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a Veteran or by his or her authorized representative. Id. 

At his November 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of his increased rating claim for PTSD. As to this issue, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim and it is dismissed.

III. TDIU

The Veteran contends that he is unemployable due to his service-connected disabilities, but most notably as a result of PTSD. VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 

Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15.

In order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a), a Veteran is not required to submit proof that he is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. Id.   

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable.

The Veteran meets the schedular criteria for an award of TDIU; he is service-connected for PTSD, rated 70 percent; diabetes mellitus, type II, with partial erectile dysfunction and nephropathy, rated 40 percent; left lower extremity peripheral neuropathy (sciatic nerve) associated with diabetes mellitus, type II, with partial erectile dysfunction and nephropathy, rated 10 percent; left lower extremity peripheral neuropathy (sciatic nerve) associated with diabetes mellitus, type II, with partial erectile dysfunction and nephropathy, rated 10 percent; and tinea versicolor, minimal residuals, asymptomatic, rated 0 percent. The combined rating for his service-connected disabilities is 90 percent from May 1, 2014.

The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a Veteran is unemployed is not enough. It must be determined that his service-connected disabilities, without regard to his advancing age, make him incapable of performing the acts required by employment. Id.  

On his formal claim for TDIU in December 2017, the Veteran reported that he last worked in July 2000 as a journeyman electrician with Arco Alaska. With regard to his education, he completed high school and one year of college. He worked at Arco from 1985 to 2000 and tried to obtain work as a retail manager in February 2009. The Veteran also testified that he attempted to start his own maintenance business after 2000. 

A November 2015 letter from the Veteran's counselor indicates that he has "difficulty concentrating long enough to be productive or successful." The counselor also indicated that despite undergoing counseling, the Veteran had impaired sleep, social isolation issues due to irritability, suicidal ideation, and mild hygiene issues. In July 2017, the counselor stated that the Veteran experienced "high anxiety," "debilitating" insomnia, and intrusive thoughts. In an April 2017 private examination, the counselor indicated that the Veteran had multiple PTSD symptoms, including difficulty understanding complex commands and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The counselor stated that the Veteran was unable to maintain gainful employment because of his PTSD symptoms.  

On a January 2017 VA examination, the Veteran reported that he was "highly anxious" and had difficulty attending to basic life tasks and keeping a regular work schedule. The examiner indicated that the Veteran exhibited depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and suicidal ideation. 

Lay statements from the Veteran's wife variously dated from 2013 to 2017 attest essentially to the Veteran's psychiatric symptoms and difficulty with daily activities of living. In a December 2015 statement, his wife noted that the Veteran was unable to attend to his hygiene. She stated that he had increased irritability, social avoidance issues, and irregular sleeping patterns. She also reported that loud, unexpected noises caused him to react irrationally. 

At the November 2017 hearing, the Veteran testified that he had nightmares, panic attacks, anxiety, and sleep problems, which affected his ability to work as an electrician. 

The Veteran submitted a statement in support of his claim for individual unemployability. He noted that he had no interest in social activities, inability to complete his hygiene regimen, and social anxiety. 

Considered together, the Veteran's service-connected disabilities, particularly his PTSD, preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. The April 2017 private examination excluded any employment due to the Veteran's PTSD. The Board finds that the symptoms and limitations imposed by PTSD impede employment. In addition, the Veteran's past work experience is limited. He has no specialized training and education that does not exceed one year of college.

The Board therefore concludes that the Veteran's service-connected disabilities have rendered him unemployable. In reaching this conclusion, the Board has considered the Veteran's educational and industrial background, the findings of the VA examinations, and lay statements in support of his claim. The Board finds that the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities and should be rated as totally disabled.


ORDER

The appeal on the issue of entitlement to an increased rating for PTSD, in excess of 50 percent prior to March 19, 2014, and in excess of 70 percent after May 1, 2014, has been withdrawn and is dismissed. 

Entitlement to a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits.



____________________________________________
M.H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs