Citation Nr: 1328491 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-23 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for tinnitus, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 70 percent disabling. 4. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1943 to April 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the benefits sought on appeal. As will be discussed below, a review of the Veteran's Virtual VA electronic claims file shows that additional VA treatment records have been associated with the record on appeal since the claims addressed herein were most recently adjudicated by the RO in the June 2012 statement of the case (SOC). Neither the Veteran nor his representative have waived initial RO consideration of the additional VA treatment records contained in the Veteran's Virtual VA electronic claims file. Please note 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). The issues of entitlement to increased ratings in excess of 30 percent for PTSD, 10 percent for tinnitus, and 70 percent for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is in receipt of service connection for bilateral hearing loss, evaluated as 70 percent disabling; PTSD, evaluated as 30 percent disabling, and; tinnitus, evaluated as 10 percent disabling. His combined evaluation for compensation is 80 percent. 2. The Veteran is rendered unemployable as the result of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to the claim of entitlement to a TDIU and the need to remand the claims for increased disability ratings for PTSD, tinnitus, and hearing loss for additional development, no further notification or assistance in developing the facts pertinent to the claim decided herein is necessary at this time. Indeed, any such action would result only in additional and unnecessary delay in adjudication of the claim of entitlement to a TDIU. II. TDIU Under VA laws and regulations, a TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience; however, age and any impairment caused by non-service- connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned even where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability that is 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 purpose of determining the above, the following will be considered as one disability: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor set forth under 38 C.F.R. § 4.26, 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. In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran's combined disability rating has, at all times relevant to the Veteran's claim for a TDIU received in March 2010, met the threshold regulatory requirement for the award of a schedular TDIU under 38 C.F.R. § 4.16(a). Since the claim of entitlement to a TDIU was received in March 2010, service connection has been in effect for PTSD rated as 30 percent disabling; tinnitus rated as 10 percent disabling, and; bilateral hearing loss rated as 70 percent disabling. The Veteran's combined disability rating is 80 percent. The evidence in this case shows that it is factually ascertainable from the evidence that the Veteran's service- connected disabilities render him unable to secure or follow a substantially gainful occupation. In his March 2010 claim for entitlement to a TDIU, the Veteran maintained that he is unemployable. In August 2010, he stated that he cannot work due to his service-connected disabilities. In his April 2012 formal application for increased compensation based on unemployability, the Veteran indicated that he retired at age 65 in 1988, however, he would have liked to have continued working but he was unable to do so due to his service-connected bilateral hearing loss disability. With regard to his occupational history, during a June 1998 personal hearing at the RO, the Veteran indicated that he had worked at a lighting factory where he wired lighting fixtures for 29 years. In his April 2012 formal application for increased compensation based on unemployability, he indicated that he had worked at the lighting factory from February 1960 to June 1988. He stated that he was educated through two years of high school, but he denied receiving any other education or training. A September 1997 VA treatment note indicated that the Veteran was deaf to normal voice at that time, but he could hear some loud voice. He was reportedly told by a private treatment provider in 1987 that he had near deafness and hearing aids may help. He had worn hearing aids since. An audiology consultation was ordered and it was noted that the Veteran's bilateral hearing loss had worsened and his use of hearing aids did not help much. Audiometric findings during an October 1997 audiology consultation showed severe bilateral sensorineural hearing loss. A July 1998 report of a VA PTSD examination shows that the Veteran indicated that he retired at age 65, in part, to care for his wife who was in ill health. He also indicated that he was a part time photographer until 11 years prior due to non service-connected blindness in his right eye. Following interview and examination of the Veteran, the examiner diagnosed chronic PTSD with symptomatology described as moderate in degree, which resulted in moderate difficulty in social and occupational functioning. Significantly, it was not possible to obtain a detailed and structured history and mental status examination due to the Veteran's mental status changes and hearing loss. It was noted that the Veteran was "quite hard of hearing" and he did not respond directly to questions during examination. In statements dated in September 1999, WLF and DB indicated that the Veteran was really hard of hearing and it was very hard to communicate with him at any time and almost impossible to communicate with him unless he was looking directly at the speaker and reading their lips. During VA audiological examination in March 2002, the Veteran complained of trouble understanding speech in pretty much all listening environments, but much worse in the presence of background noise. He also reported a constant bilateral humming noise, or tinnitus, in his bilateral ears. Audiometric evaluation was reflective of severe bilateral sensorineural hearing loss. On audiology consultation in September 2006, the Veteran reportedly received little benefit from his hearing aids. He experienced difficulty understanding speech and communications at raised voice levels and his speech discrimination scores on audiometric testing were described as poor with scores of 44 percent in the right ear and 32 percent in the left ear. A September 2006 PTSD screen was positive for symptoms of nightmares, intrusive thoughts, avoidance of triggers that reminded him of his military trauma, hypervigilance, and emotional numbness and detachment from others, activities, and his surroundings. An October 2006 mental health note showed complaints of difficulty sleeping for which prescription medication was required for treatment. Diagnostic assessment was depression. The Veteran was aware of his PTSD diagnosis; however, he flatly refused mental health care. During a VA PTSD examination in January 2009, the Veteran was an inactive deacon at his church due to increased medical and physical problems and an increase in his PTSD symptomatology - all of which drained him of energy and restricted his life. He complained of constant fatigue, stress, and lack of motivation and energy that he felt was necessary to accomplish his day. It was noted that he was retired due to age or duration of work. During a VA audiological examination in January 2009, the Veteran continued to complain of difficulty hearing in all listening environments. Audiometric testing revealed findings of severe to moderately severe sensorineural hearing loss with poor speech discrimination (56 percent) in the right ear, and severe sensorineural hearing loss in the left ear with very poor speech discrimination (32 percent). He also experienced intermittent episodes of tinnitus, which varied in duration. Occupationally, he had worked in a lighting factory for 29 years where he wired light fixtures, as a welder for 2 years, and as a car salvage repairman for 1.5 years. The examiner found that the Veteran's hearing loss did not have any significant effects on his occupation and there were no effects on his usual daily activities, however, she provided no rationale in support of such conclusions. In March 2010, the Veteran was afforded an additional VA audiological examination to determine the nature and severity of his service-connected bilateral hearing loss disability and any associated effects that his hearing loss disability has on his occupational functioning. The Veteran reported continued difficulty hearing in all listening environments. Audiometric examination revealed severe bilateral sensorineural hearing loss with poor speech discrimination scores of 52 percent in the right ear and 32 percent in the left ear. The examiner found that without use of hearing aids, the extent of the Veteran's hearing loss would make understanding speech and communication difficulty in all listening environments. She stated that with the use of amplification, he would be expected to hear fairly well in quiet situations where people are speaking at a close range, however, even with amplification, he would be expected to have difficulty understanding speech in noisy environments, especially with a lack of visual cues. The examiner concluded that the Veteran's hearing loss disability does not preclude gainful employment. The Veteran underwent an additional VA PTSD examination in April 2010 to determine the nature and severity of his service-connected PTSD and any associated effects of such disability on his social and occupational functioning. Significantly, the examiner noted that interview and evaluation of the Veteran was extremely difficult due to the Veteran's "significant" hearing loss. Despite the Veteran's use of hearing aids during the examination and sitting only approximately 2 feet away from the examiner, he remained extremely hard of hearing. The examiner spoke very loudly throughout the evaluation, however, the Veteran did not hear some questions and appeared unable to comprehend other questions. For example, when asked about hallucinations, the Veteran simply could not understand what was being asked of him. The Veteran was ambiguous in answering questions about his current mental condition, however, he described nightmares about his military service approximately once every 2 weeks, intrusive thoughts and flashbacks about 11 friends that he lost during service, a hyperstartle response when approached unexpectedly, feeling down about half of the time, and chronic sleep impairment with 3 to 4 hours of sleep at night and a 2.5 hour nap during the day. He indicated that physical limitations, including hearing loss and loss of vision in his right eye, prevented him from doing things he once enjoyed, such as fishing. His usual daily activities included a two and a half hour nap, watching TV, and reading the newspaper and bible. He attended church on Sundays and had church visitors at his home approximately every other day. Several times a week he assisted his friend with taking care of his own yard, tended to his garden, and socialized with three friends at a local service station. Approximately three times a year he spoke at local schools about his military service and showed his military photographs. His speech was rambled at times with discussion of his military service and he frequently had to be redirected to answer the questions that were being asked of him. The April 2010 examiner diagnosed chronic PTSD with a GAF score of 55. Occupationally, the Veteran had retired approximately 20 years prior. His past medical history was significant for service-connected PTSD, tinnitus, and bilateral hearing loss disabilities and numerous non service-connected conditions. The examiner found that the Veteran's PTSD did not result in and/or was not severe enough to result in any social impairment. He had many health problems, to include significant hearing loss. The examiner opined that the Veteran is unemployable simply by virtue of his older age and multiple health problems. The examiner stated that he could not determine whether the Veteran's PTSD resulted in any occupational impairment because he was unable to work due to his age and health problems. The Veteran was afforded an additional VA PTSD examination in April 2012. Since the April 2010 examination, little had changed regarding his psychosocial history. He was easily tearful on speaking about some of his military experiences but he found talking about "the good experiences" as enjoyable and therapeutic. He continued to exhibit an exaggerated startle response but his impaired hearing actually helped with that. His mood was depressed when he had nothing to do, however, he clearly stayed as active as possible, given his situation. He received no psychiatric or mental health treatment for his PTSD and he had not received such treatment in many years. He continued to take prescription medication for treatment of his chronic sleep impairment. Socially, the Veteran remained married to his long time wife who was in poor health. His wife's health limited his ability to participate in activities outside the home as he stayed with her much of the time. He drove his own car and visited with family and friends in his little hometown. His health was relatively good despite his advanced age of 88 years old. He could not hear well and his vision was reportedly poor - which called into question the appropriateness of his driving. There were many family members and friends involved in the Veteran's care and he was well supervised and given transportation when his medical appointments were out of town. He continued to speak to groups at schools and churches about his military experiences. He had many hobbies that he enjoyed such as gardening, taking with friends, attending church, and being outside; however, his physical health limited his participation at times. Occupationally, the Veteran was 88 years old and he had not worked in many years. The April 2012 VA examiner diagnosed chronic PTSD with a GAF score of 60. Associated occupational and social impairment resulting from his PTSD was best described as 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. As to the Veteran's employability, based on the Veteran's self-reported occupational history during prior examinations, he apparently had a stable history of employment without any indication in his self reports that he had ever been "UNABLE" to obtain or sustain employment due to PTSD. His history of levels of symptom severity from PTSD indicated that if he were younger and physically able, he would be able to engage in gainful employment. At the time of examination, however, he appeared to be unemployable due to his physical limitations and age. The examiner reiterated that the Veteran was 88 years old at that time and that he had not worked in decades. The Veteran was afforded an additional VA audiological examination in June 2012. Audiometric testing at that time was reflective of severe bilateral sensorineural hearing loss with poor speech discrimination scores of 48 percent in the right ear and 44 percent in the left ear. As to any functional effects associated with the Veteran's bilateral hearing loss disability, the examiner opined that his hearing loss and tinnitus, in isolation, do not preclude his ability to gain and maintain employment. She reasoned that he would be expected to understand speech fairly well one- on-one with good eye contact with the use of amplification. She acknowledged, however, that he would have certain functional limitations such as difficulty understanding speech in background noise, from distance, and without eye contact. She also indicated that he would have difficulty detecting certain high pitched indicator tones and localizing sound sources. On review of the evidence of record, the Board finds that the foregoing evidence shows that the Veteran's service- connected disabilities, and mainly his bilateral hearing loss disability, prevent him from maintaining full-time employment due to difficulty hearing and understanding speech and communication, to include with use of hearing aids for amplification and regardless of factors such as the volume of the speaker, proximity or distance between the Veteran and the speaker, and visual cues. The Board acknowledges the VA audiological examination reports with opinions that weigh against a finding that the Veteran's service-connected bilateral hearing loss disability, alone, precludes him from following a substantially gainful occupation. As to the January 2009 VA audiological examination and opinion that the Veteran's hearing loss does not have any significant effects on his occupational functioning or usual daily activities, the Board finds that this opinion is entitled to little probative weight in deciding the Veteran's claim for entitlement to a TDIU. Specifically, the Board reiterates that the examiner provided no supporting rationale for such conclusion. Moreover, a finding that the Veteran's hearing loss disability had no effects on the Veteran's usually daily activities is not consistent with the Veteran's consistent and credible complaints of difficulty hearing in all listening environments, to include with use of hearing aids for amplification. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Such conclusions are also inconsistent with objective audiometric findings which have consistently been reflective of a bilateral hearing loss disability that has consistently been described by audiologists and treatment providers as severe in degree. Finally, such conclusions are inconsistent with the competent and credible September 1999 lay statements of WLF and DB, which corroborate that communication with the Veteran at that time (approximately 14 years ago) was very difficult and nearly impossible without visual cues. 38 C.F.R. § 3.159(a) (2012). Since those statements were received in 1999, objective findings on audiometric testing have shown that his hearing loss disability has continued to worsen. The Board also finds that the March 2010 and June 2012 reports of VA audiological examinations and opinions are entitled to little probative weight in this determination. Specifically, the March 2010 VA examiner opined that the Veteran's hearing loss disability does not preclude him from obtaining gainful employment. The examiner reasoned that the Veteran would be expected to hear fairly well with use of hearing aids for amplification in quiet situations where people are sitting in close range. The examiner further found that even with use of hearing aids for amplification, the Veteran was expected to have difficulty understanding speech in noisy environments, especially with lack of visual cues. The June 2012 VA examiner essentially reached the same conclusion based on the same reasoning provided by the March 2010 examiner. The June 2012 VA examiner added that the Veteran's hearing loss disability presented an additional functional limitations of difficulty detecting certain high pitched indicator tones and localizing sound sources. The Board observes, however, that during the April 2010 VA PTSD examination, less than one month following the March 2010 audiological examination and which presumably took place in a quiet situation where visual cues were present, the PTSD examiner noted that despite his proximity within 2 feet of the Veteran during the April 2012 examination and speaking very loudly at the Veteran, he remained extremely hard of hearing. He was unable to hear some questions and unable to comprehend other questions. Thus, there is objective evidence that regardless of the presence of background noise, the proximity of the speak to the Veteran, the volume of the speaker, and the availability or presence of visual cues, the Veteran's hearing loss disability greatly impedes on his ability to communicate with others and at times prevents any effective communication with others. Moreover, the Veteran's past occupational history of working in a lighting factory undoubtedly involves the presence of background noise, which both the March 2010 and June 2012 audiological examiners have indicated would increase the Veteran's difficulty in and ability to effectively communicate with others. In light of the foregoing, the Board finds that there is an approximate balance of positive and negative evidence regarding whether the Veteran's service-connected hearing loss disability renders him unable to obtain and maintain substantially gainful employment. Additionally, he has additional service-connected PTSD rated as 30 percent disabling and tinnitus rated as 10 percent disabling with a combined disability rating of 80 percent. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because, at the very least, a state of relative equipoise has been reached in this case, the benefit of the doubt rule will be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). In light of the foregoing, entitlement to a TDIU is granted. ORDER Entitlement to a TDIU is granted, subject to the controlling regulations applicable to the payment of monetary benefits. REMAND As noted above, a review of the Veteran's Virtual VA electronic claims file shows that additional VA treatment records dating from April 2010 to January 2013 have been associated with the Veteran's electronic claims file following the issuance of the June 2012 statement of the case (SOC). Such records contain information and evidence pertaining to ongoing treatment for the Veteran's service- connected disabilities, thus, they are relevant to the Veteran's claims for increased ratings for his service- connected PTSD, tinnitus, and bilateral hearing loss disabilities. Neither the Veteran nor his representative has waived initial consideration of these additional VA treatment records by the Agency of Original Jurisdiction (AOJ). Thus, a remand is necessary so that the AOJ can consider this evidence in the first instance. See 38 C.F.R. § 20.1304 (2012). Moreover, in a May 2013 statement, the Veteran's power of attorney indicated that the Veteran has received additional and recent VA treatment and/or undergone additional evaluation pertaining to his service-connected disabilities. VA treatment records currently associated with the paper and electronic claims files are most recently dated in January 2013. Thus, records of any ongoing VA medical, audiological and psychiatric treatment or evaluation dating since January 2013 should be requested from the Memphis VA Medical Center (VAMC) and Smithville Community Based Outpatient Clinic (CBOC). All records received and documentation of any efforts to obtain them should be associated with the claims file. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should request from the Memphis VAMC and Smithville CBOC records of any VA medical, audiological, and psychiatric treatment and evaluation pertaining to the Veteran's service- connected PTSD, tinnitus, and hearing loss disabilities dating since January 2013. All efforts to obtain such records should be documented in the claims file. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the Veteran and his representative of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Veteran must then be given an opportunity to respond. 2. Upon completion of the above requested development and any additional development deemed appropriate, to include obtainment of contemporaneous VA examination(s) of the claimed disabilities if necessary, following initial consideration of VA treatment records dating since April 2010, readjudicate the issues of entitlement to increased disability ratings in excess of 30 percent for PTSD, 10 percent for tinnitus, and 70 percent for bilateral hearing loss. All applicable laws and regulations should be considered. If any benefit is not granted, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs