Citation Nr: 1101574
Decision Date: 01/13/11 Archive Date: 01/20/11
DOCKET NO. 09-32 227 ) DATE
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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