Citation Nr: 1749134	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  14-05 796	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel




INTRODUCTION

The Veteran served on active duty from July 1975 to June 1979.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2013 and March 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran requested a hearing before a Veterans Law Judge (VLJ) via videoconference, but subsequently elected to withdraw the hearing request and participate in the Pre-Hearing Conference program.  

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).   


FINDINGS OF FACT

1.  In August 2007, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeal of the issue of entitlement to a rating in excess of 70 percent for PTSD is requested.

2.  The Veteran is service-connected for PTSD, rated as 70 percent disabling.

3.  The Veteran is unable to obtain or maintain substantially gainful employment due solely to service-connected disability.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issue of entitlement to a rating in excess of 70 percent for PTSD by the Veteran (or his  authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).
2.  The criteria for entitlement to TDIU have been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Dismissal

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.A. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. 
§ 20.204.  In the present case, the appellant, through his attorney, has withdrawn this appeal of the issue of entitlement to a rating in excess of 70 percent for PTSD.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed.

II. Duty to Assist

The Board's decision to grant the claim of entitlement to TDIU is a full grant of the benefit sought on appeal.  Therefore, discussion of VA's obligations under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014) and the implementing regulations.

III. TDIU

A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 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, 4.16(a) (2017).  For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.

"Substantially gainful employment" is not currently defined in VA regulations. For a veteran to prevail on a claim based on unemployability, the record must reflect some factor which takes the claimant's case outside the norm for such a veteran and not just that the Veteran is unemployed or has difficulty finding employment. Marginal employment is not substantially gainful employment.  38 C.F.R. § 4.16 (a).  For purposes of 38 C.F.R. § 4.16 (a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. However, consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id.

The Veteran is service-connected for PTSD with obsessive compulsive disorder and alcohol abuse, rated as 70 percent disabling.  Thus, he meets the threshold criteria for entitlement to TDIU.

The Veteran was last employed full-time in the late 1990s.  He has been afforded multiple VA examinations that assess the severity of his PTSD, but the examiners did not directly address the question of employability.  The July 2016 VA examiner noted that the Veteran was working part time cutting hair and giving chair massages, and indicated that the Veteran did not exhibit total occupational impairment, which is the criteria for a 100 percent rating for PTSD, but not for entitlement to TDIU.  The September 2017 VA examiner indicated that the Veteran had stopped working completely in October 2017 and noted that the Veteran would have difficulty establishing and maintaining effective work relationships and adapting to stressful circumstances including in a work and work-like setting.

Four private evaluations have been received.  In March 2016 and July 2016, Dr. JM opined that the Veteran had very severe limitations of social and occupational functioning and was unable to secure or follow a substantially gainful occupation.  Dr. JM's opinions were based on two clinical interviews with the Veteran, as well as an impromptu phone call from the Veteran, and review of the claims file, including the VA examination reports.  In the report, Dr. JM thoroughly highlighted several aspects of the Veteran's psychiatric disability that Dr. JM believed rendered the Veteran unemployable.     

An August 2016 report from Dr. MLC also reflects a thorough review of the Veteran's claims file, including medical records and VA examinations.  Dr. MLC discussed in particular  the July 2016 VA opinion that suggested that the Veteran could work despite his PTSD and observed that the Veteran is an extraordinarily difficult patient and has a significant distrust of VA physicians that would have impeded the examiner's evaluation of the Veteran.  In addition, Dr. MLC found that the July 2016 examiner did not consider the impact of the Veteran's other disabilities, including his alcohol addiction.  Dr. MLC found that the Veteran has four psychiatric illnesses: PTSD, major depression, obsessive compulsive disorder and alcohol abuse that together extremely difficult for this veteran to have the concentration required to sustain substantial gainful employment.

In August 2017, a vocational expert reviewed the Veteran's file and found that the Veteran is unable to secure, follow, or maintain a substantially gainful occupation as a result of his service-connected disability.  The vocational expert also reviewed the claims file and discussed the various VA and private opinions and found that the Veteran would require workplace accommodations that most likely wouldn't be tolerated by an employer and be more likely to experience excessive absenteeism, unscheduled absences and difficulty in performance and maintenance of  required pace and production demands.  The vocational expert also noted the Veteran's concerns about the vocational rehabilitation program and agreed that the Veteran's PTSD symptoms were so severe that he would not be a reliable employee.  

The Veteran's major depression is not service-connected.  However, the evidence is insufficient for the Board to determine what symptoms may be attributable to the nonservice-connected major depression as opposed to the service-connected psychiatric diagnoses.  Therefore, the Board determines that the totality of the Veteran's mental health symptoms, and their impact on his employability, are a result of his service-connected disabilities.  See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102  requires that reasonable doubt on any issue be resolved in the Veteran's favor, and that such signs and symptoms be attributed to the service-connected condition).  

In light of the above evidence that the Board finds that the Veteran is unable to obtain or maintain substantially gainful employment as a result of service-connected disability.  The claim of entitlement to TDIU is granted. 


ORDER

The appeal of the issue of entitlement to a rating in excess of 70 percent for PTSD is dismissed.

Entitlement to TDIU is granted, subject to the criteria applicable to the payment of monetary benefits.



____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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