Citation Nr: 1314959 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 11-18 654 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1945 to October 1946 and from February 1951 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision, by the Lincoln, Nebraska RO, which denied the Veteran's claim of entitlement to a TDIU. On August 29, 2012, the Veteran appeared at the RO and provided testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In December 2012, the Board remanded the Veteran's claim for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in April 2013. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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), rated as 50 percent disabling; bilateral hearing loss, rated as 40 percent disabling; and tinnitus, rated as 10 percent disabling. 2. The Veteran reportedly has a college degree and has had experience as a business owner, working in construction and machinery sales. He last worked full time in 1989. 3. The Veteran's service-connected disabilities, when evaluated in association with his education and occupational experience, have likely made him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Received in November 2010 was an application for compensation based on unemployability (VA Form 21-8940), wherein the Veteran indicated that he became too disabled to work in 1989. The Veteran reported that he had a college education and he had occupational experience as a business owner. The Veteran also reported that his PTSD prevented him from securing or following substantially gainful employment. Submitted in support of the Veteran's claim were VA progress notes dated from March 2009 to September 2010 which show that the Veteran received ongoing clinical attention for symptoms of his PTSD, including chronic depression. The Veteran was seen in September 2009 for nonfunctioning hearing aids; service requests were processed and the hearing aids were sent out for repair. The Veteran attended group and individual therapy sessions to manage his PTSD symptoms. Received in December 2010 were additional VA progress notes dated from November 2010 to December 2010 which show that the Veteran received ongoing clinical attention for his bilateral hearing loss. Received in March 2011 were VA progress notes dated from December 2010 through March 2011, reflecting ongoing evaluation and treatment for PTSD symptoms, including depression. The Veteran was afforded a VA examination for review of PTSD in April 2011. The Veteran reported that the past few weeks have been very stressful. His son noted that he had problems with startled response, loud noises, and nightmares. Following the examination, the examiner stated that that it appears that the Veteran's current condition was somewhat more serious than at the last examination, into the moderate rather than mild range. The examiner opined that it is at least as likely as not that the Veteran's PTSD with depressed mood does not render him unable to secure and maintain substantially gainful employment. The Veteran was also afforded a VA Audiological evaluation in April 2011. Following the evaluation, the examiner stated that, with amplification and reasonable accommodations, his hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. Received in April 2011 were VA progress notes dated from March 2011 to April 2011 reflecting ongoing evaluation and treatment for PTSD symptoms, including depression and hearing loss. At his personal hearing in August 2012, the Veteran maintained that had he not retired when he did, he would have had to leave his employment; he stated that his posttraumatic stress disorder (PTSD) caused problems with regard to his ability to interact with people. The Veteran also reported that he worked as a telemarketer and his hearing loss caused great difficulty in his ability to communicate over the telephone, which was the essential part of his job. The Veteran testified that people often had to yell into the telephone for him to hear. The service representative argued that it was unlikely that the severity of the Veteran's PTSD, hearing loss and tinnitus would allow him to engage in any occupation. Received in November 2012 was a medical statement from Dr. E. E., dated in September 2012, indicating that the Veteran is under his care at the Nebraska-Western Iowa VA. It was his opinion that the Veteran was not capable of any gainful employment due to his PTSD, tinnitus and hearing loss. Dr. E. stated that he did not feel that any of those conditions would improve to the point where the Veteran would be able to participate in the workforce. The Veteran was afforded another VA Audiological evaluation in December 2012. The examiner noted that the diagnosis was bilateral sensorineural hearing loss; he also reported a diagnosis of tinnitus. The examiner stated that the test results indicated stable sensitivity bilaterally in comparison to the 2011 examination. The examiner reported that the Veteran had a moderate sharply sloping to profound sensorineural hearing loss from 250 to 8000 Hertz levels in the right ear and a mild sharply sloping to profound sensorineural hearing loss from 500 to 8000 Hertz in the left ear. He reported significant trouble understanding speech even on one-to-one conversation. He reported benefit with binaural amplification but he could not hear well in groups. The Veteran also reported increasingly bothersome tinnitus that is a constant buzzing noise with an intermittent bell tonal sound in both ears; he stated that the tinnitus can be very frustrating at times. The examiner noted that the Veteran managed movie theaters in Red Oak, Iowa for a few years after military service; he worked in sales for most of his civilian career. He retired several years ago but could not recall the date. The Veteran indicated that he attempted to do part-time telemarketing for a few years but had a lot of trouble hearing over the telephone so eventually he stopped working altogether. The examiner concluded that the bilateral hearing loss would cause difficulty understanding speech in quiet and particularly with competing background noise. In the absence of visual cues or without contextual cues, the Veteran's hearing difficulties would be significantly worse. The examiner stated that the Veteran's hearing loss and tinnitus would interfere with his ability to obtain and/or maintain substantially gainful employment. The Veteran was also afforded a VA examination for evaluation of his PTSD and opinion regarding employability in December 2012. The examiner stated that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self care and conversation. It was noted that the Veteran experiences depressed mood, anxiety, chronic sleep impairment, irritability and outbursts of anger. The examiner noted that the PTSD symptoms cause clinically significant distress and impairment in social, occupational and other important areas of functioning. The examiner stated that the Veteran's PTSD, would not, in and of itself, prohibit him from obtaining or maintaining substantial gainful employment. The examiner also stated that the combination of the Veteran's service-connected PTSD, tinnitus, and impaired hearing would not prohibit the Veteran from obtaining or maintaining substantial gainful employment. The examiner noted that the Veteran had reported problems with balance, which he notes may be the most significant limitation that he has to gainful employment, but it is not being considered as it is not listed as a rated disability. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where the Veteran has a single service-connected disability that is rated as 60 percent disabling or more; or when there are two or more disabilities, at least one disability is rated at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, under the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). In this case, the Veteran is service connected for PTSD, rated as 50 percent disabling; bilateral hearing loss, rated as 40 percent disabling; and tinnitus, rated 10 percent for each extremity. His combined evaluation is 70 percent. Therefore, he meets the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). In order to establish entitlement to TDIU benefits, there must be impairment so severe that a claimant cannot follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep 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 v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Having determined that the Veteran meets the percentage threshold requirements, the remaining inquiry is whether he is unable to secure or follow substantially gainful occupation as a result of such service-connected disabilities. For reasons stated below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. The Board acknowledges that there are conflicting opinions of record as to the effect of the Veteran's service-connected disabilities--PTSD, hearing loss and tinnitus--on his ability to maintain employment. The first opinion was provided by a VA examiner in April 2011 who stated that the Veteran's PTSD with depressed mood does not render him unable to secure and maintain substantially gainful employment. Similarly, in April 2011, a VA audiologist stated that the Veteran's hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. However, the audiological examination only considered the Veteran's hearing loss and the mental health examiner only considered the PTSD in rendering the opinions regarding employability. The second opinion was provided by a VA examiner in December 2012. The examiner concluded that the Veteran's hearing loss and tinnitus combined would interfere with his ability to obtain and/or maintain substantially gainful employment. The examiner explained that the Veteran managed movie theaters in Red Oak, Iowa for a few years after military service; he worked in sales for most of his civilian career. The Veteran indicated that he attempted to do part-time telemarketing for a few years but had a lot of trouble hearing over the telephone so eventually he stopped working altogether. The examiner concluded that the bilateral hearing loss would cause difficulty understanding speech in quiet and particularly with competing background noise. In the absence of visual cues or without contextual cues, the Veteran's hearing difficulties would be significantly worse. The third opinion was provided by a VA examiner in December 2012. The examiner concluded that the PTSD, would not, in and of itself, prohibit him from obtaining or maintaining substantial gainful employment. The examiner also stated that the combination of the Veteran's service-connected PTSD, tinnitus, and impaired hearing would not prohibit the Veteran from obtaining or maintaining substantial gainful employment. The examiner noted that the Veteran has reported problems with balance, which he notes may be the most significant limitation that he has to gainful employment, but it is not being considered as it is not listed as a rated disability. There is one other opinion of record that was provided by a VA physician in September 2012, indicating that the Veteran was under his care at the Nebraska-Western Iowa VA. It was his opinion that the Veteran was not capable of any gainful employment due to his PTSD, tinnitus and hearing loss. Dr. E. stated that he did not feel that any of those conditions would improve to the point where the Veteran would be able to participate in the workforce. After having reviewed the record and weighing the evidence both in support of and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's PTSD, bilateral hearing loss and tinnitus combine to make him unemployable. In this regard, the Board acknowledges the December 2012 VA examiner's opinion that the Veteran has a problem with balance, which may be the most significant limitation that he has to gainful employment, but it is not being considered as it is not listed as a rated disability. Indeed, the record indicates that he has several significant nonservice-connected disabilities. However, the VA audiologist in December 2012, as well as the Veteran's treating physician in his September 2012 statement provided competent opinions in support of the Veteran's claim. The Board gives weight to the physician who has treated the Veteran and likely is the most familiar with his debilities and their effect on him. Thus, as there is probative evidence both for and against the claim in this case, the Board finds the evidence to be in equipoise with respect to whether the Veteran's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. Hence, resolving reasonable doubt in favor of the Veteran, entitlement to a TDIU is granted. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). ORDER Entitlement to a TDIU rating is granted, subject to the laws and regulations governing the payment of monetary benefits. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs