Citation Nr: 1313271 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-10 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) prior to November 3, 2010. 3. Entitlement to a TDIU from November 3, 2010. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSESES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1965 to April 1967. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2012, the Veteran and his spouse provided testimony at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. After the appeal was certified to the Board, the Veteran submitted additional evidence that was not reviewed by the RO or the Appeals Management Center (AMC), in Washington, DC. However, he waived his right to have the RO/AMC consider the additional evidence. The issue of entitlement to service connection for residuals of a stroke has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a TDIU prior to November 3, 2010, is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Tinnitus is etiologically related to the Veteran's active service. 2. During the period beginning November 3, 2010, the Veteran's service-connected coronary heart disease has been rated as 60 percent disabling and the combined rating for his service-connected disabilities has been 80 percent. 3. The Veteran's service connected disabilities have precluded him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational experience since November 3, 2010. CONCLUSIONS OF LAW 1. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for a TDIU from November 3, 2010, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claims. In addition, the evidence currently of record is sufficient to substantiate the claims decided herein. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran asserts he has had tinnitus ever since service. He contends that his tinnitus is due to in-service noise exposure. His DD Form 214 reflects that he received the Combat Infantryman Badge. As well, his MOS during service was vehicle mechanic. Thus, exposure to acoustic trauma is conceded. The Board has reviewed the evidence of record and finds, for the reasons expressed below, that the Veteran's tinnitus is etiologically related to his active service. The Veteran's service treatment records show that in March 1966, he complained of ringing in the right ear after being on the firing range a few days prior. The finding was post-acoustic trauma tinnitus. In June 1966, he again complained of tinnitus in the right ear. In July 1966, the Veteran reported having periodic tinnitus from loud noises. After service, the Veteran was examined by VA in February 2008. The claims file was reviewed. The Veteran reported having inservice noise exposure in the infantry. He denied occupational, recreational and recent noise exposure. It was noted that there was no history of tinnitus and the disorder was not diagnosed. Private records show that in August 2008, the Veteran reported a history of bilateral tinnitus which is constant. The Veteran was examined by VA in November 2008. The claims file was not available; however, his medical records were reviewed. He complained of tinnitus. The examiner noted that the Veteran did not report tinnitus on VA examination in 2008 but did report it in 1996 in service. The examiner noted that the claims file was not available to qualify this. A history of constant tinnitus on the right was noted. The onset of tinnitus was noted to be 30 years prior of unknown etiology. As to whether tinnitus is due to military noise exposure, the examiner stated that this could not be determined without resorting to mere speculation. The rationale was clinical expertise and medical literature. The examiner stated that she needed the claims file to make an opinion on tinnitus as there were inconsistencies in the Veteran's history. It was noted that the Veteran stated that the previous examiner had asked if the testing caused his tinnitus and that was why he had stated that he did not have tinnitus. The Veteran was examined by VA in February 2009. The claims file was not reviewed. The Veteran reported having ringing in his ears since active service. He noted that he worked as a mechanic for trucks and tanks and that he did not have tinnitus prior to service. It was reported that there was a history of bilateral tinnitus. The date of onset was noted as 1962 while in service. The diagnosis was subjective tinnitus. The examiner stated that as to whether the tinnitus is as likely as not related to the Veteran's complaints in service, he could not resolve this without resorting to speculation. The examiner stated that the complaint of tinnitus in service was most likely an acute onset instead of chronic. It was noted that the February 2008 VA report indicated no history of tinnitus and a diagnosis of tinnitus was not given. It was also stated that the tinnitus was not caused by a preexisting head injury with hearing loss and aggravated by service. The examiner stated that there was no report of tinnitus at service enlistment and the complaint of tinnitus in 1966 may have been an acute and episodic symptom. In a February 2009 addendum, the examiner stated that it is likely that some military noise exposure levels caused temporary changes in tinnitus which resolved to normal levels prior to military separation. He stated that it is likely temporary tinnitus due to high noise exposure did occur and has since resolved. The Veteran testified before the undersigned in October 2012. He stated that the tinnitus began in service. He stated that the February 2008 VA examination finding that he denied a history of tinnitus was in error. He reported that the tinnitus he had in service never went away. The Veteran is competent to state that he first experienced tinnitus in service and that the symptoms have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In fact, service treatment records confirm that he was treated during service for complaints of tinnitus. Moreover, the Board has found the Veteran to be credible in reporting continuing complaints since that time. Consistently throughout this claim, the Veteran has stated that he has experienced tinnitus ever since that incident. He has further explained that on the February 2008 VA examination which noted that he denied a history of tinnitus, he interpreted the examiner referring to the testing and not the current or past symptoms. In fact the record shows that he did have a history of tinnitus in service. In addition, 6 months after the February 2008 VA examination, a private examiner reported that the Veteran had a history of bilateral tinnitus that was constant. The Veteran is competent to report the presence of his tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board acknowledges that the VA examiners have not provided opinions supporting the Veteran's claim. However, the VA examination reports are not probative. In this regard, the Board observes that in each report, the examiner stated that an opinion could not be reached without resorting to mere speculation. Such a statement does not constitute an opinion, either positive or negative. Moreover, as discussed above, the examiners disregarded the Veteran's lay account of the initial manifestations and continuing symptoms of the disability. There is no persuasive medical opinion of record indicating that the Veteran's currently diagnosed tinnitus is not related to his noise exposure in active service. In sum, the Board finds the various statements by the Veteran to VA, as well as the hearing testimony, to be competent, credible and persuasive evidence linking his current tinnitus to service. The in-service treatment to which the Veteran links the onset of these symptoms is clearly shown in the service records. The Board finds that the evidence in favor of the claim is at least in equipoise with that against the claim. As such, the benefit of the doubt must be resolved in favor of the Veteran. Accordingly, entitlement to service connection for tinnitus is warranted. TDIU Prior to November 3, 2010 Legal Criteria It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "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(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities resulting from common etiology are considered as one disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In addition, 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.A. § 5107(b); 38 C.F.R. § 4.3. Factual Background and Analysis The Board notes that the Veteran's TDIU claim was received on September 2, 2009. At that time service connection was in effect for posttraumatic stress disorder, rated as 50 percent disabling, and for left ear hearing loss disability, rated as 10 percent disabling. During the pendency of the claim, the Veteran was granted service connection for coronary artery disease, effective November 9, 2007. The disability was rated as 10 percent disabling prior to November 3, 2010, and as 60 percent disabling from that date. The combined rating was 60 percent prior to November 3, 2010, and 80 percent from that date. Thus, he initially met the minimum schedular criteria for a TDIU on November 3, 2010. The Veteran contends that his service-connected coronary artery disease and PTSD prevent him from securing or following any substantially gainful occupation. He testified before the undersigned that he worked in construction which is the only work he has ever done. He noted that this involved manual labor. Educationally, he stated that he received a GED and received a high school degree on post. He reported that his work involved plumbing and that it would be challenging to find any sedentary employment. He reported that he had to stop working in 2007 due to his service-connected disabilities, specifically his PTSD. He noted having difficulties with his coworkers and memory problems. He reported having panic attacks and little social life. His wife testified that the Veteran is depressed and has nightmares. The Veteran reported that he had a heart attack and that his coronary artery disease has a big impact on his ability to work. A VA outpatient record of January 2010 shows the Veteran had PTSD with depression, memory impairment, and social isolation. His global assessment of functioning (GAF) score was 49. The evidence shows that the Veteran was seen for memory problems by VA in June 2010. On VA examination in December 2007, the Veteran was diagnosed with PTSD and his GAF score was 55. On VA PTSD examination in July 2009, the claims file was not available. The examiner diagnosed PTSD with a GAF score of 55. The examiner noted that there was not total occupational and social impairment and the PTSD resulted in deficiencies in judgment, thinking, family relations, work, mood or school. It was noted that the Veteran did not always make the right decisions. A January 2011 VA Form 21-0960A, ischemic heart disease disability benefits questionnaire was submitted by the Veteran's private physician. It indicates that the Veteran has coronary artery disease, angina and a CVA. It was noted that he was on continuous medication. The examiner indicated that the heart disease impacted on the Veteran's ability to work. When the Veteran was examined by VA in January 2011 for ischemic heart disease, it was noted that he had coronary artery disease with a stent diagnosed in August 2006 and an old myocardial infarction also diagnosed in August 2006. The clinician stated that the ischemic heart disease did not impact on the Veteran's ability to work. In an October 2012 statement, the Veteran's private cardiologist stated that he had been treating the Veteran since 2006 and that the Veteran has several progressive medical issues including coronary artery disease. The cardiologist stated that based on his review of the Veteran's medical history and the incomplete response to therapy, it appears very likely that the Veteran's service-connected conditions render him unable to obtain or maintain gainful employment in any capacity. It was noted that despite adequate therapy for any reversible conditions, his functional capacity has continued to decline. On review of the evidence outlined above, to specifically include the Veteran's October 2012 testimony, the VA records and the reports of the private physician, the Board finds the evidence shows the Veteran's service-connected disabilities, specifically his coronary artery disease and his PTSD render him unemployable during the period beginning November 3, 2010. The GAF scores suggest that service connected PTSD symptoms are moderate to severe. (See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); 38 C.F.R. § 4.125 (2012). GAF scores in the 41 to 50 range signify serious symptoms, for example suicidal ideation, severe obsessional rituals, and frequent shoplifting; or any serious impairment in social, occupational, or school functioning, for example having no friends, or being unable to keep a job. See American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 46-47 (4th ed. 1994) (DSM-IV). GAF scores in the 51 to 60 range, indicates moderate to severe symptoms, for example, a flat affect and circumstantial speech, or occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as having few friends, and conflicts with peers or co-workers. See DSM-IV at 46-47). A VA examiner has found that the PTSD resulted in deficiencies in judgment, thinking, family relations, work, mood or school. Further, the Board notes that the private cardiologist has noted that the Veteran was unable to work as a result of his service-connected heart disability. The VA examiner's finding that the Veteran's ischemic heart disease did not impact on the Veteran's ability to work has been noted. However, the finding is not supported by rationale and thus lacks probative value. See, Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran has consistently contended that his disabilities have made him unable to work and provided credible testimony to this effect. The Veteran also testified that he was not able to work in construction because of incapacitation that resulted from his PTSD and his heart disorder. He indicated that he has always worked at manual labor. Based on this scenario for a suitable work setting, the private medical evidence, and the Veteran's testimony, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD and his coronary artery disease during the period beginning November 3, 2010. ORDER Service connection for tinnitus is granted. Entitlement to a TDIU beginning November 3, 2010, is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND As noted above, the Veteran did not meet the minimum schedular criteria for a TDIU during the period of the claim prior to November 3, 2010. The Veteran was granted service connection for coronary artery disease in a February 2011 rating decision. Although the record before the Board does not show that the Veteran has appealed the initial ratings assigned for his coronary artery disease, it does show that the Veteran has submitted new and material evidence within the appeal period and that the issue of entitlement to a higher rating for the coronary artery disease is being developed by the RO. Moreover, the Veteran has submitted authorization for VA to obtain records pertaining to his private treatment for coronary artery disease. Records pertaining to treatment of the Veteran's coronary artery disease during the period prior to November 3, 2010, could be supportive of his claim for a TDIU during that period. Moreover, the originating agency has not adjudicated the claim for a TDIU since the grant of service connection for coronary artery disease or in light of the Board's decision granting service connection for tinnitus. In light of these circumstances, the claim for a TDIU prior to November 3, 2010, is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include records pertaining to the Veteran's treatment by a private cardiologist beginning in 2006. 2. Then, the RO or the AMC should arrange for the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder to be reviewed by a physician with sufficient expertise who should be requested to provide an opinion with supporting rationale as to when the Veteran's service-connected disabilities became so severe as to render him unable to obtain or maintain substantially gainful employment consistent with his education and occupational background. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should adjudicate the claim for a higher rating for coronary artery disease. 5. Then, the RO or the AMC should readjudicate the claim for a TDIU during the period prior to November 3, 2010, if it has not been rendered moot. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs