Citation Nr: 1330007	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  11-11 042	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota


THE ISSUES

1.  Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and dysthymic disorder. 

2.  Entitlement to a rating in excess of 20 percent for bilateral hearing loss.

3.  Entitlement to a rating in excess of 10 percent for tinnitus. 

4.  Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from March 1970 to October 1971.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota.

In June 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing is of record.

The issues of entitlement to increased ratings of bilateral hearing loss and PTSD are     addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The Veteran experiences bilateral ear tinnitus.

2.  The Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him.


CONCLUSIONS OF LAW

1.  There is no schedular basis for the assignment of a rating in excess of 10 percent for tinnitus.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2013).

2.  The criteria for entitlement to a TDIU are met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.16(b).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Rating Tinnitus

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability ratings.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Entitlement to service connection for tinnitus was granted in an October 2005 rating decision with an initial 10 percent rating assigned effective July 13, 2005.  The Veteran complained of bilateral tinnitus at the February 2009 and August 2010 VA audiological examinations.  However, the current 10 percent evaluation is the maximum schedular rating available for tinnitus, whether the sound is heard in one ear, both ears, or the head.  38 C.F.R. §4.87, Diagnostic Code 6260.  Thus, a rating in excess of 10 percent is not warranted and there is no legal basis upon which to award a higher evaluation for tinnitus.  The Veteran's appeal must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court of Appeals for Veterans Claim (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the Veteran's disability.  The Veteran's tinnitus is manifested by ringing in his bilateral ears.  This manifestation is specifically contemplated in the rating criteria.  The rating criteria are therefore adequate to evaluate the disability and referral for consideration of extraschedular rating is not warranted.





TDIU Claim

The Veteran contends that TDIU is warranted as he is unemployable due to his service-connected PTSD and hearing loss disability.  TDIU may be granted where the schedular rating is less than total and the service-connected disabilities preclude a veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.

If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent.  38 C.F.R. § 4.16(a).  The Veteran is currently service-connected for PTSD rated as 70 percent disabling, bilateral hearing loss rated as 20 percent disabling, and tinnitus rated as 10 percent disabling.  He has a combined disability evaluation of 80 percent.  Therefore, he meets the objective minimum percentage requirements set forth in 38 C.F.R. § 4.16(a),for an award of a schedular TDIU.

The central inquiry in a claim for TDIU 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).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

After review of the evidence, the Board finds that the Veteran is unemployable due to service-connected disabilities.  He last worked full time in November 2008 when he was self-employed as a contractor for an oil company.  The Veteran's September 2008 and July 2010 VA Forms 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability) indicate that he previously worked as a veterans' employment representative for Job Services for 20 years until his retirement in June 2006.  After June 2006, he worked several part time jobs in retail and as a seasonal laborer, but quit after several months due to problems with concentration and conflicts with his employers.  The Veteran's self-employment as an oil company contractor lasted approximately 6 months until November 2008.  He reports that he stopped working due to an inability to grasp the details and complexities of the work due to impairment in concentration and memory.  The Board notes that the Veteran has a college degree in education and a master's degree in education administration but has not worked in the educational field since the 1980s.  

The Veteran testified in June 2011 that his service-connected PTSD affects his employment as he is unable to get along with others and experiences difficulties with concentration, focus, and memory.  He has trouble controlling his temper and cannot tolerate any form of criticism.  The Veteran also testified that he has problems trusting authority figures and has left several jobs due to conflicts with coworkers and supervisors.  The Veteran's post-retirement work history supports his testimony; since his retirement from Job Services in June 2006 he has worked several part-time jobs, but each only lasted several months until the Veteran quit due to problems with concentration and conflicts with his employers.  The Veteran holds a master's degree in education administration, but he has not worked in the field for several decades and has been unable to hold down even a part-time laborer position since his retirement in 2006.  

The record also contains objective medical evidence in support of the Veteran's claim for TDIU.  The Veteran's treating psychiatrists at the Fargo VA Medical Center (VAMC) have identified problems with employment functioning stemming from his service-connected PTSD, including difficulty with work demands, interpersonal functioning, and trouble controlling his temper.  In August 2010,  a VA psychiatric examiner also found that the Veteran experienced total occupational impairment due to PTSD.  Although a November 2010 addendum report from the same VA examiner indicated only moderate impairment to occupational functioning due to PTSD, the examiner also found that the Veteran was only capable of solitary employment and could not perform work around others or in a structured environment.  With these restrictions, the Board finds that the VA examiner essentially concluded that the Veteran was unemployable.  Additionally, the Veteran has provided credible testimony and statements regarding the effect of his psychiatric disability and service-connected hearing loss on his ability to work.  His statements are supported by his employment history and the findings of the VA examiner.  Thus, the claim for entitlement to TDIU is granted.  


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

With respect to the claim for an increased rating for tinnitus, the pertinent facts in this case are not in dispute and the law is dispositive.  Consequently, there is no additional evidence that could be obtained to substantiate the claim.  Accordingly, no further development of the record is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004).

Regarding the claim for entitlement to TDIU, VA has substantially satisfied the duties to notify and assist.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim.  






ORDER

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Entitlement to TDIU is granted. 


REMAND

The Board finds that additional development is necessary before a final decision may be rendered with respect to the claim for entitlement to an increased rating for bilateral hearing loss.  The Veteran was provided a VA audiological examination in August 2010, but the VA examiner concluded that the puretone threshold results were not reliable and not adequate for rating purposes.  The Veteran testified in June 2011 that he had a head cold the day of the August 2010 VA examination and became confused during the hearing test.  The Board finds that the Veteran should be provided a new VA audiological examination to determine the severity of his service-connected bilateral hearing loss.  

An additional VA examination is also necessary to determine the current severity of the Veteran's service-connected PTSD.  The Veteran's most recent VA psychiatric examination was conducted in August 2010.  At that time, the VA examiner found that the Veteran manifested "total occupational and social impairment due to the PTSD signs and symptoms."  This finding is consistent with a total 100 percent schedular rating under the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130 (2013).  However, later in the examination report, the VA examiner characterized the Veteran's PTSD symptoms as moderate to severe and assigned a global assessment of functioning score (GAF) score of 63, consistent with mild symptoms.  See The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126).  An addendum report was obtained in November 2010 in an attempt to resolve the ambiguity of the August 2010 examination report, and the VA examiner stated that the Veteran's correct GAF score was 53, consistent with moderate symptoms.  Id.  The examiner specifically found that the Veteran experienced moderate PTSD symptoms and moderate difficulty in social and occupational functioning.  The Board finds that the November 2010 addendum report is not sufficient to resolve the conflict of statements in the August 2010 VA examination and a new examination should be obtained to accurately determine the severity of the Veteran's PTSD.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss disability.  The claims file must be made available to and reviewed by the examiner.  

The evaluation should be in accordance with the criteria delineated in 38 C.F.R. § 4.85 and should include testing of pure tone criteria at 1,000, 2,000, 3,000, and 4,000 Hertz and speech recognition scores using the Maryland CNC Test.  The objective findings and the Veteran's subjective complaints should be recorded in detail.  The VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.  

2.  Schedule the Veteran for a VA psychiatric examination to determine the current degree of severity of his PTSD.  The claims file must be made available to and reviewed by the examiner.

The examiner should identify all current manifestations of the service-connected PTSD.  The examiner should also provide an opinion concerning the current degree of social and occupational impairment due to the service-connected psychiatric disability.  In addition, the examiner should provide a GAF score with an explanation of the significance of the score assigned.  The examiner should also address the Veteran's recent reports of homicidal ideation provided at the June 2011 hearing before the Board.  A full rationale must be provided for all expressed medical opinions.  

3.  Readjudicate the claims on appeal.  If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order.

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).




______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs