Citation Nr: 1736623	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-24 492	)	DATE
	)
	)

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


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Todd S. Hammond, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Buck Denton, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1968 to May 1971 during the Vietnam Era.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

In June 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO (Travel Board hearing).  A transcript of that hearing is of record.

In May 2014 and June 2016, the Board remanded the case for further development.  It now returns for appellate review.


FINDINGS OF FACT

1.  The Veteran is service-connected for PTSD, at 70 percent disabling.

2.  The Veteran is unemployable based solely on his service-connected PTSD.


CONCLUSION OF LAW

The criteria for TDIU due to PTSD have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2016).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  38 U.S.C.A. 
 § 1155; 38 C.F.R. §§ 4.1, 4.10.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  Id.

Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341(a), 4.16(a).

Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment.  See 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).  For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992).

Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion.  Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age.  38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose, 4 Vet. App. at 363.

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107 (b).  Under that provision, VA 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. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to TDIU.

The Veteran is currently service-connected for posttraumatic stress disorder (PTSD), assigned a 70 percent evaluation; tinnitus, assigned a 10 percent evaluation; bilateral hearing loss, assigned a noncompensable evaluation; and a scar, assigned a noncompensable evaluation.  Based on his service-connected disabilities, the Veteran's claim for TDIU may be adjudicated on a schedular basis.  See 38 C.F.R. §§ 4.16 (a), 4.25; Rice, 22 Vet. App. at 455.  Here, the evidence demonstrates that the Veteran's service-connected PTSD alone renders him unable to secure or follow a substantially gainful occupation.

In this regard, in January 2015, VA treatment records noted that the Veteran was not working and last worked in 2010.  The Veteran stated he has had difficulty with conflict with coworkers.  He is married but is withdrawn from his wife due to alcohol use.  The Veteran reported that alcohol helps him forget his experiences in Vietnam, and the examiner noted that his alcohol use is most likely secondary to PTSD.  The examiner determined that the Veteran would have difficulty in establishing and maintaining effective work and social relationships or adapting to 


stressful circumstances, including work or a work-like setting.  Nonetheless, the examiner found that the Veteran is likely able to establish and maintain gainful employment in a job which requires little interaction with others and is loosely supervised.  See January 2015 PTSD Disability Benefits Questionnaire, received January 2, 2015, at 3-4, 6.

The Veteran was examined in September 2016 by a private physician.  It was reported that the Veteran suffers from sleeping problems, so he arises early each day.  He immediately checks the doors, turns on the lights, and after tending to his dogs, he sits in silence for several hours.  Afterwards, he begins drinking and reported to drinking up to a dozen beers each day.  The Veteran also reported having no social life, no friends, and no hobbies.  Upon examination, the Veteran was reported to be fully oriented and alert.  The Veteran was able to remember 4 out of 5 items on a task of immediate recall, but after time passed, could only remember one of the items.  He could not perform a task of serial 7s and seemed perplexed.  His understanding of parables was concrete.  His comprehension of the commonalities between apparently disparate objects was lacking, and he frequently deferred instead of guessing.  He had difficulty spelling words backwards.  The examiner found that his ability to complete tasks denoted problems with various forms of memory.  The examiner also found the Veteran's PTSD to be severe and that he suffers from symptoms of depression and alcoholism.  The examiner opined that the Veteran would not be capable of maintaining a consistent schedule; receiving or carrying out instructions; dealing with superiors, coworkers, or the public in general; tolerating criticism; or modulating his angry moods when provoked.  See September 2016 Psychodiagnostic Examination, received October 5, 2016, at 2-5, 6.

Based on the foregoing evidence, the Board finds that the Veteran's service-connected PTSD alone renders him unemployable.  The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another.  Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record).  The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions.  Flash v. Brown, 8 Vet. App. 332 (1995).

The Board finds that the January 2015 VA medical opinion is inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical opinion that contains only data and conclusions is not entitled to probative weight).  The VA examiner found that the Veteran would be able to establish and maintain gainful employment in a job that required little interaction with others and is loosely supervised.  However, the examiner also found that the Veteran would have difficulty in establishing and maintaining effective work relationships and social relationships or adapting to stressful circumstances, including work or a work-like setting.  Even with little interaction and loose supervision, the Veteran would still have to establish and maintain some level of effective work relationships and social relationships, which would involve adapting to stressful circumstances despite a reduced interaction with others.  Furthermore, the Veteran's assessment by the private examiner also found that the Veteran would have difficulty in establishing and maintaining effective work relationships and social relationships or adapting to stressful circumstances in a work or work-like setting.

In this case, the Veteran has been unemployed for many years.  The medical and lay evidence demonstrates that his service-connected PTSD causes significant functional and occupational impairment in most job assignments and would preclude him from working in an environment where he would have to maintain effective work relationships and social relationships or adapt to stressful circumstances.  The Board finds that the Veteran's service-connected PTSD is of 
sufficient severity to preclude him from obtaining or retaining gainful employment.  Thus, a TDIU is granted.  38 C.F.R. § 4.16(a).


ORDER

Entitlement to TDIU is granted, subject to the laws and regulations governing the award of monetary benefits.


____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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