Citation Nr: 1328622 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 11-00 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether the severance of service connection for bilateral hearing loss was proper. 2. Whether the severance of service connection for tinnitus was proper. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from November 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran appeared and testified at a Board video-conference hearing held before the undersigned Veterans Law Judge in August 2013. A copy of the transcript of this hearing has been associated with the 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). FINDINGS OF FACT 1. In an April 2010 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. 2. In a December 2010 rating decision, the RO severed service connection for bilateral hearing loss and tinnitus. 3. The evidence of record does not establish that the April 2010 award of service connection for bilateral hearing loss and tinnitus was clearly and unmistakably erroneous. 4. Resolving reasonable doubt in the Veteran's favor, the evidence establishes that he is unable to obtain or sustain substantially gainful employment as a result of his service-connected disabilities, including posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The severance of the award of service connection for bilateral hearing loss was improper, and the criteria for restoration of service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.304(f) (2012). 2. The severance of the award of service connection for tinnitus was improper, and the criteria for restoration of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.304(f) (2012). 3. The criteria for a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board restores service connection for hearing loss and tinnitus and grants entitlement to a TDIU, which represents a complete grant of the benefits sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. I. Propriety of Severance of Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active service. 38 U.S.C.A. § 1110. In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Once service connection has been granted, VA may sever this benefit only if it shows that the rating decision granting this benefit was clearly and unmistakably erroneous, and only after certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Severance of service connection based on any standard less than that set forth in 38 C.F.R. § 3.105(d) is erroneous as a matter of law. Stallworth v. Nicholson, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994). Clear and unmistakable error (CUE) is a very specific and rare kind of error; it is the kind of error of fact or law, that when called to the attention of later reviewers, compels the conclusion to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Allegations of CUE must be raised with sufficient particularity. Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Damrel, supra; Russell, supra. To warrant revision of a decision on the ground of CUE in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome. The current evidence of record must establish that a grant of service connection would be clearly and unmistakably erroneous. Stallworth, supra. The April 2010 rating decision which granted service connection for bilateral hearing loss and tinnitus was not clearly and unmistakably erroneous. In other words, the evidence was at least debatable at the time of the April 2010 rating decision as to whether the Veteran's bilateral hearing loss and tinnitus were related to his military service. The Veteran's service treatment records are silent as to whether hearing loss and tinnitus was incurred in service. During his April 2010 VA audiological examination the Veteran reported significant exposure to noise in service while in Vietnam from small arms fire, mortar, rockets, grenades and land mines. In addition, he has reported being thrown off an armored personnel carrier three times from a nearby explosion. His DD Form 214 reflects that he served in Vietnam as a light weapons infantryman, that he was awarded the Marksman (M16) badge, and that he was awarded the Combat Infantryman Badge. He also reported that tinnitus began after "being blown off an APC from a nearby land mine in 1969-70 in Vietnam." He reported post-service noise exposure while hunting for two or three seasons, carpentry noise in residential construction while wearing hearing protection, and operating home power tools while wearing protection. The VA examination report (third page, diagnosis section) concluded that tinnitus was as likely as not a symptom associated with hearing loss and diagnosed "bilateral mid- to high-frequency sensorineural that appears cochlear in origin secondary to exposure to excessive levels of noise, aging, and other idiopathic origins." In the opinion section of the examination report (fourth page), however, the examiner concluded that hearing loss was less likely as not due to small arms fire and explosions in combat as the Veteran's service treatment records did not reflect any significant change in hearing and as hearing thresholds were well within normal limits at service entrance and separation. The audiologist also indicated that the Veteran's tinnitus was idiopathic. Thus, the findings on page three of the 2010 examination report supported the claims, while the findings on page four of the examination report did not. The rating specialist who issued the April 2010 rating decision granting service connection for bilateral hearing loss and tinnitus used the favorable evidence from the 2010 audiology examination report to grant the claims. The rating decision explained the grant of service connection for hearing loss by noting, correctly, that the 2010 audiologist had linked the Veteran's bilateral hearing loss to noise exposure. The examiner had also noted that the Veteran had noise exposure in service. The April 2010 rating specialist conceded exposure to excessive noise from combat operations in military service. As noted above, this finding is supported in the record by the DD Form 214 which reflects the Veteran's numerous service awards and decorations. Further, as the 2010 audiologist linked the Veteran's tinnitus to his hearing loss, there was positive evidence in the record to support the award of service connection for tinnitus as well. The Board is aware that certain statements made by the examiner in page four of the 2010 examination report did not support the claims. However, given that the Board finds that reasonable minds could differ as to the interpretation of the VA examination findings, clear and unmistakable error is not present in the April 2010 rating decision. As such, the Board finds that the April 2010 rating decision granting service connection for bilateral hearing loss and tinnitus did not constitute CUE. Accordingly, severance of service connection for hearing loss and tinnitus was improper. Thus, the claims to restore service connection for hearing loss and tinnitus are granted. II. TDIU The Veteran contends that he is unable to be employed because of his PTSD. He has provided information to the effect that, after service, he was employed in Oregon for 20 years as a logger and then worked in construction with his son until 2008. However, at his Board hearing in August 2013, the Veteran testified that, while working as a logger, he went from job to job, never staying long at one job because of his PTSD symptoms. He also testified that he felt he was able to work so long doing that type of job because he spent most of his time alone. He further testified that he last worked for his son who owned a construction company and that his son eventually told the Veteran he could not work for him anymore because he would not finish jobs and could not get along with customers and other contractors. He also stated he was in court several times because of angry outbursts and threatening a customer or contractor when he lost his temper. Furthermore, although he testified that he has improved some since he was put on medication and started going to the Vet Center, he still did not see how he would ever really get along with anybody and that he essentially does not. Finally, at the August 2013 hearing, the Veteran's representative argued that the September 2010 VA examiner's opinion that the Veteran would be employable was inconsistent with the severity of symptoms reported by the Veteran. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to 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). Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15 (2008). The Veteran is service-connected for PTSD, evaluated as 70 percent disabling effective April 2, 2008. The Veteran has also been service-connected for hearing loss, evaluated as 10 percent disabling, and tinnitus evaluated as 10 percent disabling, effective August 27, 2009. Thus, prior to August 27, 2009, the Veteran had a single service-connected disability (his PTSD) evaluated as 70 percent. Thereafter, he has a combined disability rating of 80 percent. Thus, the Board finds that the Veteran meets the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) at all times during the appeal period. However, the evidence must still show that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities in order to be entitled to a TDIU. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the sole fact that a veteran 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 the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the Veteran's education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The evidence of record essentially consists of the Veteran's testimony in August 2013, his TDIU application filed in August 2009, VA treatment records from 2008 to 2011, and the reports of three VA examinations conducted in August 2007, August 2008 and September 2010. According to the Veteran's TDIU application, he last worked in July 2008 in construction. He reported having only a high school education. At the August 2013 hearing, the Veteran testified that, before he went into service, he worked for Ford Corporation and that he went back to work for them after service. He stated that he left that job because he "couldn't take it." See hearing transcript, pg. 6. He related that he quit and went out west and found the mountains in Oregon and never left. In Oregon, he began working logging jobs because they were ample at that time and he could go from place to place. He also stated that the job he did "you were basically by yourself and you didn't have to deal with too much people. When you had to, you know, I could quit one job and go to another . . . ." See hearing transcript, pg. 7. Eventually he began working for his son's construction business but his son "got to the point with me that he wouldn't allow me to go to a job anymore, let alone do anything on a job. And it wasn't only dealing with or talking with people, it was physically or mentally trying to do or finish a job . . . and he sat me down one day and he said Dad I'm telling you, he said you just need to stay away, find something else to do or just do nothing or whatever but he said I can't have you around." See hearing transcript, pg. 10. On initial PTSD examination in August 2007, the examiner noted that the Veteran's symptoms of PTSD included nightmares, flashbacks, avoidance of trauma triggers, difficulty with his concentration, irritability and anger problems, hypervigilance, increased startle reaction, and numbing of his feelings. The examiner further stated with regard to the Veteran's occupational functioning that he had isolated himself in his employment to avoid crowds and people. He had authority issues with people at work and had some homicidal ideation towards a previous customer who got a judgment against him. He assigned a Global Assessment of Functioning (GAF) score of 41. At the August 2008 VA examination, the Veteran reported only working sporadically during the previous year with his son in a heavy equipment company; however, just three weeks before, his son told him that they should no longer work together because he has too many difficulties getting along with people and ruins jobs. He related that he had started a new job with another company the prior week but reported he was having difficulties with these people because they were all in their 20s and had different ways of doing things than he did. He also reported that he might have a lawsuit against him for threatening a contractor. According to him, he threatened to "rip the head off" this gentleman during an altercation. The examiner stated that the Veteran's PTSD symptoms include arousal symptoms (significant difficulties with temper and sleep; difficulties with memory and concentration; hypervigilance; exacerbated startle response). The Veteran also described symptoms of intrusive thoughts and memories. He said that he has disturbing dreams about Vietnam. The Veteran stated that 90 percent of the time he thinks about killing Vietnamese or combat. He related feeling guilty in his dreams and thoughts that he was never injured when others around him were severely injured or killed. The Veteran also described significant symptoms of numbing and avoidance. He described restrictive affect and he was emotionally detached. The Veteran described a foreshortened sense of future. He avoided war movies and television that reminded him of his experiences in Vietnam. He attempted to avoid other environmental stressors that remind him of Vietnam. The examiner also noted that the Veteran had symptoms of depression including depressed mood, sleep problems, difficulties with concentration and memory, difficulties with motivation and productivity, and guilt related to Vietnam as well as issues from his post military life. In summarizing, the examiner stated that, from his statements, the Veteran's work functioning was significantly impaired by his psychological distress. He had been forced to be self-employed for years. He worked with his son, but his son had recently told him that they can no longer work together because the Veteran's temper is such that he loses jobs for them or creates problems. The Veteran was easily angered and very irritable. He would yell and scream at people and at least in one case threatened someone on a job site. He had difficulties being around other people in general and did not deal with stress well. The examiner assigned a GAF score of 35 for the Veteran's PTSD. In March 2009, the Veteran underwent a mental health consultation at VA although the main focus at that time was his alcohol abuse and how that has affected his life. He was advised that he needed to quit drinking because his other problems could not be addressed without serious attention to this issue. It was recommended that he return to Alcoholics Anonymous, taper off his alcohol use, and consider substance abuse treatment. A GAF of 40 was assigned. The records indicate he did not, however, follow up with either going to Alcoholics Anonymous or substance abuse treatment although he did attempt to taper off his alcohol use on his own. In September 2010, the Veteran underwent the last VA examination. At that time, he reported continuing to have nightmares nearly every day. He would wake up with sweats. He reported he had thrashed around in his sleep and tried strangling his wife during the sleep process. He reported flashbacks, insomnia, irritability and anger problems, poor concentration, decreased interest in pleasurable activities, avoidance of trauma triggers such as crowds and traffic, hypervigilance, and increased startle response. He further reported having dysphoric mood most of the time accompanied by lower energy, insomnia, decreased interest in pleasurable activities, poor concentration, poor appetite, and feeling of hopelessness, helplessness and worthlessness. He reported suicide ideation but without plan or intention. The Veteran reported an occupational history of being in logging for 20 years and then in construction mostly self-employed with his son. His last job was three years before and lasted about three months due to problems with his back as well as difficulty getting along with the people he was working for. He stated that, when he was working for himself, he would walk off jobs at times and his son would get mad at him. The Veteran stated that he would get mad at the job or people and, being set in his ways, would have a difficult time dealing with that. The Veteran said that those events occurred more than three years ago before he was on his current medication. He reported he had looked for work but due to the economy, it was difficult for him to find anything. The examiner continued the diagnosis of PTSD and assigned a GAF score of 45. In discussing the Veteran's employability, the examiner noted the Veteran's employment history, his reports of difficulties when employed doing construction, that he was not on his current medication at the time these problems occurred, and that the Veteran had not been in any psychotherapy. The examiner stated that, based on the fact that the Veteran is indicating that he is much better able to handle being around people now on the medication and, given that he has indicated an interest in pursuing counseling, the Veteran would appear to be able to work in a situation where he was loosely supervised or had little contact with the public. He might even be able to do the same line of work now that he is on medication, and with some support from counseling. Therefore, the examiner opined that individual unemployability would not appear to be met based on the Veteran's PTSD with depression. Finally, in March 2011, the Veteran underwent mental health consultation at VA for treatment. He reported at that time having difficulty coping with people, crowds, and staying in relationships since returning from Vietnam. He reported that he has especially had a hard time since he has not been working and has "too much time to think about things." He endorsed current poor sleep with nightmares two to three times a week, hypervigilance, difficulty in crowds, irritability and low mood. He reported that he finds the buproprion has helped with "keeping the edge off." Assessment was PTSD, major depressive disorder relating to PTSD and alcohol abuse. A GAF score of 47 was assigned. After considering this evidence, the Board finds it is at least in equipoise as to whether the Veteran would be unable to obtain or sustain substantially gainful employment due to his service-connected PTSD. The Board acknowledges that the VA examiner opined that it did not appear that the criteria for individual unemployability were met. The examiner, however, placed many conditions on the Veteran's ability to be employable or relied on something happening in the future in order for the Veteran to be employable. The Board finds that this opinion does not conform to the standard for a TDIU in that it does not look at the Veteran's current status but rather looks at what he could do if certain conditions are met. Consequently, the Board finds that the probative value of the examiner's opinion is lessened. Furthermore, after giving the Veteran's education and work history, the Board finds that it is likely that his PTSD would preclude work, which would be essentially unskilled or manual labor as such a position would likely require regular contact with others, which is clearly still a problem for the Veteran although he has had some improvement with medication and psychotherapy. The Board finds it unlikely that the Veteran would be able to return to his previous work in construction as not many such jobs would provide him with the ability to work without regular contact with others, either coworkers, other contractors or clients, because the evidence does not show that the Veteran has any such skill set that would allow him to obtain such jobs that would allow him to work alone. Furthermore, the Veteran testified at the hearing that he would not be able to get along with others even now. Finally, except for his wife and son, the record demonstrates the Veteran has few, if any, other significant relationships. At the hearing, he testified that he prefers to be alone and daily spends time out in the mountains and forest alone. The September 2010 VA examiner reported he continues to have problems with irritability and anger, as well as does the March 2011 VA mental health consultation note. Consequently, there is nothing in the record to demonstrate that the problems the Veteran had demonstrated while on the job in 2008 (which caused him to quit working) would not reappear and cause such difficulties again. In addition, the Board notes that the Veteran's GAF scores have ranged from 35 to 47. A GAF score is highly probative as it relates directly to a veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score of 31-40 contemplates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See DSM-IV at 44-47. A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. Consequently, these GAF scores are further evidence that the Veteran's symptoms are of such severity as to preclude substantial employment. In conclusion, after review of the evidence of record, the Board finds that the evidence establishes a reasonable doubt whether the Veteran is precluded from performing gainful employment due to his service-connected PTSD for which his education and occupational experience would otherwise qualify him. Resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected PTSD has rendered him unemployable. In reaching this conclusion, the Board has considered the Veteran's educational and occupational background which is limited to a twelfth grade education and post-service work experience performing manual labor, as well as the medical evidence. Therefore, the Board finds that the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities and should be rated as totally disabled. ORDER Severance of service connection for hearing loss was improper, and the restoration of service connection for hearing loss is granted. Severance of service connection for tinnitus was improper, and the restoration of service connection for tinnitus is granted. Entitlement to a TDIU as a result of service-connected PTSD, is granted, subject to controlling regulations governing the payment of monetary benefits. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs