09-32 227

Citation Nr: 1101574 Decision Date: 01/13/11 Archive Date: 01/20/11 DOCKET NO. 09-32 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability due to a service- connected disability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service from February 1951 to February 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Los Angeles, California, in which entitlement to individual unemployability was denied. In December 2010 a videoconference hearing was held by the undersigned and the transcript is of record This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is service connected for post-traumatic stress disorder (PTSD) evaluated as 50 percent disabling; bilateral depressed metatarsal arches, with callosities, evaluated as 30 percent disabling; bilateral hearing loss, evaluated as 10 percent disabling; and noncompensable scars from shrapnel wounds, left thigh and back. His combined evaluation is 70 percent, effective in December 2006. 2. The evidence establishes that the Veteran has not been employed since November 1991 when he retired. 3. The medical evidence of record demonstrates that the Veteran is unemployable due to his service-connected disability. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Analysis Total disability ratings for compensation may be assigned where the schedular rating 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). For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a) (2). If the total rating is based on a disability or combination of disabilities for which the Schedule of 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(a). The Veteran meets the schedular requirements for TDIU, as he has one disability evaluated at 50 percent, and an overall combined evaluation of 70 percent, effective in December 2006. The determinative issue, therefore, is whether he is shown to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The evidence demonstrates that the Veteran has not been employed since November 1991. The Veteran testified that he took an early retirement in November 1991 at his supervisor's suggestion. In the months prior to his retirement the Veteran had been experiencing panic attacks which caused him to leave meetings to go to the restroom with sweats and shakes. He also was having trouble hearing people talk in meetings and would have to ask them to repeat themselves. The Veteran also reported difficulty walking because of his feet problems which caused him to be late for meetings. These disruptions caused multiple complaints about his behavior and he agreed to retire. In a February 2009 VA examination of the feet, the examiner opined that due to the Veteran's bilateral foot disability he had a limited ability to stand or walk for long periods of time. The February 2009 VA examination for PTSD revealed that the Veteran continued to evidence signs of PTSD. The Veteran reported that his symptoms affect his daily functioning which causes him to have few friendships, to be socially isolated and that he is easily perturbed by others. He reported recurrent flashbacks and nightmares of being in battle and witnessing others killed and injured, flashbacks which are triggered by current events. The examiner noted the disturbances cause impairment in social and occupational functioning. The Veteran reported that his mood is so negative he does not want to engage in activities, preferring to isolate himself. The examiner concluded that the Veteran has difficulty establishing and maintaining effective work/school and social relationships because he is withdrawn and prefers to keep to himself; therefore he is not a good candidate to engage in substantially gainful employment. The employment limitations identified by the VA examiner due to the Veteran's PTSD disability render the Veteran unemployable. Accordingly, entitlement to TDIU is warranted. ORDER TDIU is granted. ____________________________________________ D. HAVELKA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs