Citation Nr: 1331429 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-45 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. 4. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Heather Van Hoose, Attorney At Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2010 and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The January 2010 rating decision relevantly granted service connection for tinnitus and assigned a 10 percent disability rating and denied service connection for bilateral hearing loss. The October 2010 rating decision granted service connection for PTSD and assigned an initial 30 percent disability rating. A June 2011 rating decision increased the initial disability rating to 50 percent. In August 2012, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claim folder. In October 2012, the Veteran, via his attorney, submitted additional evidence. The medical reports are not relevant to the matters at hand, and in any event, a waiver of initial RO review was submitted. No additional action in this regard is warranted. In accordance with Rice v. Shinseki, entitlement to TDIU has been raised by the record, and is listed as an issue on the title page. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In October 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal of the issue of entitlement to an increased disability rating for his service-connected bilateral tinnitus. 2. The Veteran's symptoms of PTSD most closely approximate occupational and social impairment, with deficiencies in most areas, due to such symptoms as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with period of violence); difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. 3. The Veteran's service-connected PTSD precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to an increased disability rating for service-connected bilateral tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for an initial disability rating of 70 percent for PTSD and no higher are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2013). 3. The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). With regard to the Veteran's claims for an increased initial disability rating for PTSD and TDIU, the Board is granting in full the benefits sought on appeal. As noted below, the Veteran and his attorney have testified that the Veteran's symptoms should be rated at 70 percent, not 100 percent. See Hearing Transcript at page 4. Accordingly, any error committed with respect to either the duty to notify or the duty to assist with regard to these claims was harmless and will not be further discussed. Likewise, as the Veteran has withdrawn his appeal for an increased disability rating for bilateral tinnitus, the duty to notify or assist regarding this issue will not be discussed. Analysis Bilateral Tinnitus The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in correspondence received in October 2011, the Veteran's attorney on his behalf withdrew his appeal with regard to the issue of entitlement to an increased disability rating for bilateral tinnitus and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. Increased Disability Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The appeal of the Veteran's claim is based on the assignment of an initial evaluation following an initial award of service connection for PTSD. As such, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id. Service connection for PTSD was granted in an October 2010 rating decision and a 30 percent evaluation was assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective July 17, 2009. A December 2011 rating decision assigned a 50 percent evaluation, effective July 17, 2009. During his August 2012 personal hearing, the Veteran and his attorney indicated that he is not seeking a rating higher than 70 percent for his service-connected PTSD, which is his right. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly limits the appeal to a specific rating). Under Diagnostic Code 9411, a 50 percent evaluation is warranted for mental disorders with occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Private treatment records dated as early as 1986 show the Veteran was taking Ativan in January 1986 and was later diagnosed with an anxiety disorder. In an August 2009 statement, the Veteran's wife reported that she had seen him go through a lot of depression, anxiety and isolation since their marriage in September 1968. She stated that he had great difficulty sleeping some nights and that she and his brother had taken him to the hospital on several occasions for stomach pain that physicians attributed to anxiety. He always wanted to be alone and could not cope with crowds. In a January 2010 statement, the Veteran's wife reiterated that the Veteran had difficulty sleeping and added that he would have "spells" when he would socially isolate himself from her and their children becoming emotionally cool towards them. She reported that these spells lasted 3 to 4 days at a time. VA treatment records, dating from July 2009 to August 2010, show treatment for diagnosed anxiety disorder beginning in July 2009. An August 2009 treatment record indicates that he reported having suicidal thoughts in the past but denied any present suicidal or homicidal ideation. There was no evidence of any psychosis at that time. The treatment records show he consistently complained of insomnia, nightmares and flashbacks of his Vietnam service. He further reported being socially isolated from everyone but his family. During this period GAF scores reflected either mild or moderate symptoms or impairment. In September 2010, the Veteran underwent VA psychological examination. He reported having been prescribed medication for anxiety for more than 30 years. He also reported experiencing moderate to severe panic attacks on a near daily basis. He reported having insomnia, nightmares 2 to 3 times a week, depression, chronic irritability, intrusive recollections, low self-esteem, and social isolation. Although he denied any history of suicide attempts, he admitted that he had thought about it when he was younger and had shot his gun into the floor on one occasion in the 1970s. Examination revealed the Veteran to be neatly groomed and appropriately dressed. His attitude was cooperative and his speech was spontaneous and coherent. Psychomotor activity was described as tense and his affect as constricted. The Veteran's mood was anxious and depressed and his concentration was mildly compromised by anxiety. He was oriented to person, time and place. His thought process was unremarkable, but his thought content exhibited ruminations. There was no evidence of delusions or hallucinations. His judgment and insight were intact. He did not have obsessive or ritualistic behavior, but had inappropriate behavior with a history of domestic violence and verbal abusiveness when angry. He denied homicidal or suicidal thoughts at the time of the examination. The diagnosis was chronic PTSD and depressive disorder secondary to his PTSD. The examiner assessed a GAF score of 55, indicative of moderate symptoms or impairment. In May 2011, the Veteran again underwent VA psychological examination. At that time the Veteran reported poor sleep with crying spells and intrusive memories of his Vietnam experiences. He also reported depression for more days than not since his discharge from service. He reported having 2 to 4 nightmares a week. Although he denied current suicidal ideation, intention or plans, he admitted to recurrent passive thoughts of suicide, particularly when awaking from nightmares. He denied experiencing homicidal thoughts or panic attacks. Although he reported his relationship with his wife and children as "good" he also reported feeling somewhat emotionally detached from his family at times. He denied having any friends or any social engagements. On psychological examination, the Veteran appeared cooperative, friendly and relaxed with unremarkable psychomotor activity and speech. He was oriented to person, time and place. His affect was normal and his mood was anxious. His thought process and content were unremarkable and there was no evidence of delusions. His insight and judgment were appropriate. His sleep impairment interfered with his daily activities. There was no evidence of hallucinations or inappropriate behavior. He had good impulse control and was able to maintain minimum personal hygiene. The diagnoses were chronic PTSD and depression. His depression was determined to be secondary to his PTSD. His GAF was 58, indicative of moderate impairment. The examiner noted that the Veteran had retired from his employment as a construction worker. The examiner opined that the Veteran remained clearly employable from a mental health perspective and that there was no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms. In a subsequent May 2011 statement in support of his claim, the Veteran indicated that he had not been honest with the May 2011 VA examiner when he denied panic and anxiety attacks, as well as suicidal thoughts and inappropriate behavior. He stated that in the past several years he had experienced panic attacks at least one time a day and had nightmares 3 to 4 times a week. He further admitted that he had hit his wife on occasion when in a rage. The Veteran further admitted that he had frequent and continuing thoughts of suicide, as well as sleep issues that included nightmares every night. The Veteran was evaluated by a private psychologist, in August 2012. He reported having intrusive recollections and nightmares about 3 to 4 nights a week. He also reported having flashbacks, anger problems, and depression. The Veteran described having anxiety episodes lasting a "couple of hours" 3 to 4 times a week. He also admitted to having continued suicidal feelings that he had not reported to VA. The examiner noted that the Veteran had developed paranoid attitudes and ideation, feeling that he was being watched and followed when he went out. The examiner diagnosed PTSD and major depressive disorder with prominent suicidal thinking. The GAF was 48. The examiner opined that the Veteran was a potential suicide risk, especially if anything were to happen to his wife. VA treatment records show ongoing treatment for diagnosed PTSD. An October 2011 VA treatment record notes the Veteran's history of nightmares occurring 4 to 5 times a week and provides a GAF score of 49 indicating serious symptoms or impairment. The note further indicates that the Veteran was not employable based on his symptoms. A December 2011 treatment record notes the Veteran woke up crying 4 times a week and had frequent panic attacks. He reported passive suicide ideation and being in almost complete isolation. The GAF was again assessed as 49. A February 2012 treatment record again notes the Veteran's report of passive suicide thoughts and frequent panic attacks. He also reported waking up crying 4 times a week. His GAF score was 49. During his August 2012 personal hearing, the Veteran testified that he still had suicidal thoughts a lot of times and nightmares at least 3 to 4 times a week. He testified that he was socially isolated and had to retire at age 62 due to difficulties with his temper and concentration. Taking the Veteran's overall clinical picture into account and resolving all reasonable doubt in his favor, the Board finds that he has had symptoms of PTSD that impacted his social and occupational functioning such that a 70 percent rating is in order since the commencement of the appeal period. He has consistently been described as either having few or no friends and as being in almost complete isolation. He has intermittently reported physically and/or verbally abusing his wife when angry. The evidence also indicates significant sleep disturbance and near continuous depression and anxiety. Although the clinical notes and VA examination reports show the Veteran denied suicidal ideation, he has indicated that he has not been honest about his experiencing such feeling. Indeed, August 2009, December 2011, and February 2012 treatment records note passive suicidal thoughts, as does the May 2011 VA examination report. Likewise, the August 2011 private psychological evaluation notes his reported suicidal ideation and the examiner opined that he was a potential suicide risk. Although the clinical notes show that his symptoms were often less severe than reported on examination, the Veteran and his wife have both indicated that the Veteran tends to not discuss his symptoms with his treating physicians or VA examiners. The Veteran's symptoms do not perfectly match those listed in 38 C.F.R. § 4.130 for a 70 percent rating. However, the use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. Accordingly, after considering the totality of the evidence, the Board finds, with resolution of reasonable doubt in the Veteran's favor, that his PTSD is productive of occupational and social impairment, with deficiencies in most areas, such as work, school, and family relations. As such, a 70 percent rating is warranted. As the Veteran has limited his appeal to a 70 percent rating for the appellate period, and as a 70 percent disability has been granted, the Board need not address an extraschedular rating under 38 C.F.R. § 3.321(b)(1). In any event, by the Veteran's and his attorney's testimony, the 70 percent rating fully contemplates the Veteran's PTSD symptoms and disability picture. TDIU The Veteran contends that he is entitled to TDIU benefits. During his August 2012 hearing, he testified that he worked in construction from the time of his discharge from service until he retired at age 62 because of difficulty he was having with his temper and with his concentration. During his August 2011 private psychological evaluation, the Veteran reported that he had emotional factors associated with flashbacks that caused him to quit working. Based on the evidence of record, the Board finds that entitlement to a TDIU based on his service-connected PTSD is warranted. A total disability rating may be assigned, where 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 the result of 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 in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's September 2010 VA psychological examination report shows that he retired in 2007 from construction work. Both the 2010 VA examination report and the August 2011 private evaluation note that he quit school in the 10th grade at age 16 to work and that he never obtained his GED. The Veteran's service-connected disabilities are bilateral tinnitus, rated as 10 percent disabling, and his PTSD, now rated as 70 percent disabling; thus, during the appellant period he has been unemployed, and meets the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16(a). In numerous statements and in his hearing testimony, the Veteran has competently and credibly reported that he was unable to continue working in construction due to his service-connected PTSD symptoms with concentration and anger management difficulties, as well as emotional factors after having flashbacks. Further, there is medical evidence of record, both VA and private, that supports his claim. Indeed, an October 2011 VA treatment record indicates that he is not employable based on his symptoms and the August 2011 private examiner, as well as subsequent VA treatment records have assessed him with GAF scores indicative of serious to major impairment. After reviewing the evidence of record, the Board finds that, resolving all reasonable doubt in the Veteran's favor, the evidence is in equipoise as to whether his service-connected PTSD prevents him from securing or following substantially gainful employment. Hence, entitlement to TDIU is warranted. ORDER The appeal for service connection for an initial increased disability rating for bilateral tinnitus is dismissed. Entitlement to an initial 70 percent disability rating for service-connected PTSD is granted. Entitlement to a TDIU is granted. REMAND With regard to the Veteran's claim for service connection for bilateral hearing loss, VA audiological examinations were obtained in December 2009, August 2010, and October 2011. Both the August 2010 and October 2011 examinations were conducted by the same examiner. All three examination reports indicate that the Veteran's bilateral hearing loss was not caused by or the result of military noise exposure, or was not as likely as not caused by or a result of his military service. The December 2009 examiner noted that the opinion was based on the Veteran's having normal hearing at both his enlistment and separation examinations, while the October 2011 VA examination bases the opinion on the separation hearing test revealing normal hearing bilaterally. The August 2010 examination report notes that the Veteran's hearing was within normal limits in both ears at separation and that hearing loss from acoustic trauma is typically instantaneous, indicating no permanent loss of hearing from the Veteran's military noise exposure. The examiner also noted that the Veteran worked 38 years as a heavy equipment operator after his discharge. The Veteran's attorney argues that the VA examination reports regarding the etiology of his hearing loss are inadequate because they rely on evidence of normal hearing at the time of separation, provide inadequate rationale for their opinions and contradict current case law regarding hearing loss. In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court held that if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, VA must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensely, 5 Vet. App. at 159. The Veteran's exposure to acoustic trauma in service has been conceded. The Board observes that although the Veteran's hearing test during his September 1967 separation examination was within normal limits, the results do reflect an upward shift in tested thresholds from the October 1964 enlistment physical examination results. All of the VA medical opinions have failed to address this upward shift or whether the Veteran's bilateral hearing loss was incurred in service, regardless of whether it was shown to meet the provisions of 38 C.F.R. § 3.385 in service or on service separation. Hensely, supra. Therefore, the Board finds the December 2009, August 2010 and October 2011 VA medical opinions inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)(if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate.); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under these circumstances, the Veteran must be provided another VA opinion regarding the etiology of his bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. Return the claim file to the October 2011 VA examiner, if available, to include a copy of this remand. The entire claim file must be reviewed by the examiner in conjunction with the examination. Based on review of all the evidence of record, the examiner must provide an opinion regarding whether it is at least as likely as not that the Veteran's currently diagnosed bilateral hearing loss had its onset in service or is the result of acoustic trauma therein. A clear rationale for all opinions must be provided with a discussion of the facts and medical principles involved, to include a discussion of the documented upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and the Veteran's appellate contentions. If the October 2011 VA examiner is unavailable, another qualified examiner is to provide the above opinions. Should a new examination be required, one must be scheduled. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 2. Review the examination report to ensure complete compliance with the directives of this remand. If deficient in any manner, implement corrective procedures. 3. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the issue on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs