Citation Nr: 1334660 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 05-11 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for a left shoulder condition. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from September 1975 to September 1979 and from March 1983 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran's request for a hearing before a member of the Board was withdrawn in a signed statement in December 2009. The Board previously remanded this matter for additional development in March 2011. The Board is satisfied that there has been substantial compliance with the remand directives set out in March 2011. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's left ear hearing loss did not have onset in service or within one year of service and was not caused or permanently aggravated by the Veteran's active military service. 2. There is no competent medical evidence of a current left shoulder disability. 3. The Veteran meets the schedular criteria for a TDIU; the competent and credible evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Left ear hearing loss was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A left shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by VCAA, 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, a letter dated in October 2003 informed the Veteran of what evidence was required to substantiate his claims and of the Veteran's and VA's respective duties for obtaining evidence. The RO provided the Veteran with additional notice in February 2008 regarding effective dates and disability ratings. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The available service treatment records have been obtained, as well as post-service VA and private treatment records. The RO attempted to obtain service treatment records from the Veteran's first period of active duty service. In a July 2009 formal finding, the RO noted that the service treatment records for that period were not found by the National Personnel Records Center and are therefore unavailable for review. The Veteran was afforded VA examinations in December 2012 which addressed his claim for individual unemployability. The Veteran was afforded an audiological examination in June 2011. He had a VA examination of his shoulders in June 2011. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded adequate examinations on the issues decided herein. The claims file and treatment records were reviewed, the Veteran's history was taken, and complete examinations were conducted. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the available relevant records, and has provided adequate examinations to the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claims Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) based on chronic symptoms in service and continuous symptoms since service applies to the claim for service connection for left ear hearing loss. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, became manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within a presumptive period, it must be shown, by acceptable medical or lay evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service Connection for Left Ear Hearing Loss The Veteran asserts that current left ear hearing loss is related to acoustic trauma in service. In statements in support of his claim, the Veteran has reported that he was exposed to aircraft and engine noise. In cases involving service connection for hearing loss, impaired hearing will be considered to be a disease when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, the Veteran's military occupational specialty was Aviation Boatswain's Mate. The Department of Defense's Duty MOS Noise Exposure Listing confirms that the Veteran's MOS as a Boatswain's Mate involved a " high " probability of noise exposure. Therefore, based upon the Veteran's service occupation, his exposure to acoustic trauma during service is acknowledged. Service treatment records show that the Veteran was seen in July 1986 with a complaint of "plugged up ears." He was diagnosed with bilateral cerumen buildup and underwent an irrigation. After a hearing consultation in February 1990, the Veteran was diagnosed with hearing loss consistent with noise exposure, although the Veteran denied symptoms of hearing loss at that time. An audiogram performed in February 1986 obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 5 5 LEFT 10 10 10 5 10 An audiogram dated in October 1987 obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 10 10 15 LEFT 15 10 10 15 20 An audiogram dated in December 1989 obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 20 LEFT 20 15 20 30 20 A February 1990 audiogram obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 15 LEFT 15 15 15 15 25 A December 1990 audiogram obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 15 25 LEFT 10 10 15 20 10 A July 1992 audiogram obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 25 20 LEFT 10 20 20 15 25 A February 1993 audiogram obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 15 15 10 20 LEFT 15 15 20 15 0 A December 1993 audiogram obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 15 LEFT 5 5 15 10 5 An April 1994 audiogram obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -5 5 5 5 5 LEFT 0 5 15 10 10 A December 1995 audiogram obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 15 15 LEFT 0 5 15 15 10 A March 1999 audiogram obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 5 10 LEFT 0 0 5 5 5 The report of separation examination dated in March 1999 reflects that the examiner noted normal hearing. A report of medical history completed in conjunction with the examination reflects that the Veteran checked "no" to "hearing loss." There is no evidence of treatment or diagnosis of sensorineural hearing loss of the left ear within one year of separation from service. Therefore, service connection for left ear sensorineural hearing loss may not be presumed. 38 C.F.R. §§ 3.307, 3.309. Pursuant to Walker, supra, the Board has considered whether the Veteran experienced a continuity of left ear hearing loss symptomatology since his service discharge. However, the Veteran's STRs as interpreted by a VA audiologist do not show hearing loss. The 2011 VA audiology examination concluded that the Veteran had normal hearing upon separation from service. Initial findings of post-service left ear hearing loss are shown in 2004, approximately five years after separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In March 2004, the Veteran had a VA audiological examination. The VA examiner indicated that the claims file was reviewed. The VA examiner noted that the Veteran had a normal hearing test bilaterally in December 1982. The VA examiner noted that another hearing test in March 1999 showed normal hearing bilaterally. The Veteran reported that his wife complained that he turned the television too loud. The Veteran reported that he was exposed to jet during his period of active service. The Veteran reported that he worked as a security guard post-service and never fired a gun. The Veteran denied recreational noise exposure post-service. On audiological examination, the following puretone thresholds were obtained: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 5 30 LEFT 5 10 10 15 10 The Veteran had speech recognition scores of 96 percent in the right ear and 88 percent in the left ear. The speech recognition score of 88 percent in the left ear meets the requirement for hearing loss disability of the left ear, as defined by § 3.385. Therefore, a current left ear hearing disability as defined by 38 C.F.R. § 3.385 is demonstrated. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The VA examiner diagnosed sensorineural hearing loss of the left ear, as shown by reduced speech recognition scores. The VA examiner opined that it is not likely that hearing loss of the left ear is a result of any activity in military service. In March 2011, the Board remanded the claim for service connection for left ear hearing loss to obtain another examination and an opinion addressing the hearing loss noted in service in 1990. The Veteran was afforded a VA examination in June 2011. The Veteran reported that he was exposed to noise from jet engines during service. The Veteran reported that he could not wear hearing protection devices while in the hanger because he had to listen to the engines and could not hear all of the sound with hearing protection devices. The Veteran reported that he was a security guard after military service and never fired a gun. The Veteran denied recreational noise exposure. Audiological testing obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 15 15 25 LEFT 15 15 15 20 35 The Veteran had speech recognition scores of 94 percent in both ears. The VA examiner noted that testing indicated normal hearing for adjudication purposes bilaterally. The VA examiner opined that the Veteran's left ear hearing difficulties are less likely than not etiologically related to military service. The VA examiner indicated that a review of the claims file revealed that the Veteran had normal hearing in both ears upon entrance and separation. The VA examiner stated that a comparison of the entrance and separation audiometric exams showed no significant threshold shift. The VA examiner explained that a significant threshold shift is a decrease in hearing acuity of 15 decibels or more at any frequency in either ear from 500 to 4000 Hertz. The VA examiner noted that, from entrance to separation, the Veteran's audiometric thresholds improved by 5 to 10 decibels or remained the same. The VA examiner stated that, in reference to the 1990 hearing loss, exposure to excessive noise can cause a temporary threshold shift which will be detected if the Veteran was tested within 24 hours of exposure. The VA examiner indicated that a temporary threshold shift is not a permanent threshold shift and does not necessarily result in a permanent threshold shift. The VA examiner stated that the pattern of hearing loss that is consistent with excessive noise exposure/ acoustic trauma is characterized by a decrease in audiometric thresholds at 3000 to 6000 Hertz that then rebound; this is called noise notch. The VA examiner stated that compensation audiometrics revealed a gradual decrease in thresholds from low frequency to high frequency that do not rebound; no noise notch is present. The VA examiner indicated that this pattern/configuration of hearing is consistent with the typical progression from aging or presbycusis. The Board finds that the weight of the competent medical evidence is against a nexus between the Veteran's in-service noise exposure and any current left ear hearing loss disability. Two VA audiologists concluded that the Veteran's left ear hearing loss is not related to service. There is no competent medical evidence of record of a nexus between the Veteran's left ear hearing loss disability and service. Although the Board notes that the most recent VA examination indicates that the Veteran does not have left ear hearing loss that meets the requirements of 38 C.F.R. § 3.385, he did meet such criteria at some point during the appeal period. See March 2004 VA examination. As such the Board has also considered the contentions of the Veteran that current left ear hearing loss disability is related to noise exposure in service. In this regard, the Veteran is competent to testify as to matters within his experience and personal knowledge, such as his symptoms and medical history. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay evidence can be competent with respect to both the diagnosis and the etiology of a disability); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge). However, as a lay person, the Veteran does not have the medical training or expertise to make a competent determination as to whether noise exposure during service caused a left ear hearing loss disability, as this is a determination that is too medically complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the Veteran's opinion on any causal relationship carries little weight in the absence of competent and credible medical evidence. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for left ear hearing loss. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection for Left Shoulder Disability The Veteran asserts that a bilateral shoulder disability is related to an incident during service in which he was washed overboard in 1986, injuring the left side of his body. Service treatment records show that in August 1986, the Veteran was washed overboard while stationed on the USS Carl Vinson. The Veteran did not report any complaints of a left shoulder disability during service. The retirement examination in March 1999 did not note findings of a left shoulder disability. Post-service treatment records do not reflect complaints or findings of a left shoulder disability. The Veteran had a VA examination in June 2011. The examination report reflects that the Veteran reported that he injured his right shoulder, left elbow, low back and left hip in service. The VA examiner indicated that the Veteran did not claim, and the VA examiner did not find a history of left shoulder pain. In a statement dated in January 2013, the Veteran noted that he has a disability which affects his right shoulder and not the left shoulder. The Board notes that service connection is presently in effect for a right shoulder disability. The Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis of a left shoulder disorder. As a service connection claim requires competent evidence of a current disability, the Board finds that a preponderance of the evidence is against the claim for service connection for a left shoulder disorder. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). TDIU A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). 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 age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for a TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The Veteran is service-connected for PTSD, rated as 70 percent disabling, degenerative joint disease of the right shoulder, rated as 20 percent disabling, residuals of fracture of the right fifth metacarpal, rated as 10 percent disabling, degenerative joint disease of the left elbow, rated as 10 percent disabling, degenerative disc disease of the lumbar spine, rated as 10 percent disabling, degenerative joint disease of the left hip, rated as 10 percent disabling, residuals of bilateral bunions and bilateral claw toes, rated as 10 percent disabling, hypertension, rated as 10 percent disabling and residual fracture of the left distal fibula, rated as non-compensable. The combined evaluation of the Veteran's service-connected disabilities is 90 percent from June 30, 2005. The combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are met because the Veteran has two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent. The Board does note that the Veteran's claim for a TDIU does predate June 30, 2005, the date he meets the schedular criteria for a TDIU. The record reflects that prior to June 30, 2005, the Veteran's combined disability evaluation for all disabilities was 60 percent with no one disability rated 40 percent disabling; thus, he did not meet the schedular criteria prior to June 30, 2005. See 38 C.F.R. § 4.16(b); see also Veteran Benefits Administration Fast Letter 13-13 (June 17, 2013). Service connection for PTSD, which was awarded in an August 2012 rating decision effective June 30, 2005, had not been awarded. Thus, prior to June 30, 2005, service connection was only in effect for disabilities of the right shoulder, right fifth metacarpal, left elbow, left hip, lumbar spine, bilateral feet, hypertension, and left leg. The Board has reviewed the record and particularly, the most recent VA examinations, and finds that the evidence does not show that the Veteran's service-connected disabilities without consideration of the Veteran's now service connected PTSD rendered him unable to maintain substantially gainful employment such that referral of this claim to VA Director, Compensation and Pension for extraschedular consideration would be warranted for the period prior to June 30, 2005. Although the record indicates that the Veteran was unemployed for part of the appeal period, he clearly had been employed on a full-time basis for three years prior to the 2012 VA examination wherein he indicated that his hours had recently been reduced at work although it is unclear when this occurred. In any event, the Board finds that it is the combination of physical and mental disorders that renders the Veteran unemployable at a date after he met the schedular criteria for TDIU (June 30, 2005), and as reflected in VA examinations in 2011 and 2012 as outlined below; the RO in assigning the appropriate effective date for TDIU can determine with the Veteran's assistance the date of the Veteran's last full-time employment. The record must reflect that circumstances, apart from nonservice-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disability, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence shows that the Veteran's completed 12th grade and had additional college correspondence courses in history, firefighting and recreation. The Veteran's occupational history is as a security guard and a groundskeeper. A report of a VA examination of the joints dated in June 2011 reflects that the Veteran reported that his right shoulder, left elbow, low back and left hip disabilities did not cause him to miss work at his security job, but they did cause him pain on the job, particularly when he had to walk the perimeter of the area for which he was responsible. The Veteran reported that he only worked on weekends and would recuperate on his days off. A June 2011 VA examination of the spine reflects that the Veteran reported that his back condition caused pain in his occupation as a security guard, but he had not lost time because of his back pain. The Veteran reported that, if not for joint and back pain, he felt he could earn more than his current minimum wage. In December 2012, the Veteran had VA examinations for PTSD, the left hip, right hand, left elbow, spine, left ankle and feet. Upon VA examination of the left ankle in December 2012, the VA examiner opined that the service-connected left ankle condition would impact the Veteran's ability to perform physical employment that would require prolonged standing or walking without periods of rest. The VA examiner opined that it would not impair his ability for some type of sedentary employment. Upon VA examination of the feet in December 2012, the VA examiner opined that the Veteran's service-connected bilateral foot condition would impact his ability for physical employment that would require prolonged standing or walking without periods of rest. The VA examiner opined that this would not impair his ability for some type of sedentary employment. In December 2012, the Veteran had a VA examination of his spine. The VA examiner opined that the Veteran's service-connected low back condition would affect his ability for physical employment that would require repetitive bending, lifting, long periods of standing or walking long distances. The VA examiner opined that this would not prevent him from some type of sedentary employment. In December 2012, the Veteran had a VA examination of his hand. The VA examiner opined that the Veteran's right hand condition would impact his ability to perform repetitive tasks with his right hand, including gripping in rigorous physical employment. The VA examiner opined that this would not impair his ability for some type of sedentary work and casual use of the right hand. Upon VA examination of the left hip in December 2012, the VA examiner opined that the Veteran's hip condition would impact his ability for physical employment, to include repetitive bending, lifting, long periods of standing and walking. The VA examiner opined that this would not impact his ability for some type of sedentary employment. A December 2012 report of a VA examination for hypertension reflects that the VA examiner opined that the Veteran's service-connected hypertension would not impact his ability for physical or sedentary employment. A report of a VA examination of the shoulder, dated in December 2012, reflects that the VA examiner opined that the Veteran's ability for physical employment requiring repetitive push and overhead movements would be impaired. The VA examiner opined that this would not affect his ability for some type of sedentary or light physical employment. In December 2012, the Veteran had a VA examination for PTSD. The Veteran reported that he had been working full time as a security guard, but he had his hours decreased to two days per week. The Veteran denied interpersonal conflicts with supervisors or co-workers, but reported this was largely because he kept to himself. The VA examiner assigned a GAF score of 45. The VA examiner noted that the Veteran had serious difficulty with depression and anxiety and was socially withdrawn with no close friends. The VA examiner noted that the Veteran was frequently isolative and kept to himself (even around family). The VA examiner stated that the Veteran presented with major impairment in several areas of functioning, such as work, family relations, thinking and mood. The VA examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The VA examiner opined that the Veteran's ability to understand and follow instructions was considered markedly impaired. The VA examiner opined that the Veteran's ability to retain instructions was considered profoundly impaired. The VA examiner opined that the Veteran's ability to sustain concentration to task persistence and pace was considered markedly impaired. The VA examiner opined that the Veteran's ability to respond appropriately to coworkers, supervisors, or the general public was considered profoundly impaired. The VA examiner opined that his ability to respond appropriately to changes in the work setting was considered markedly impaired. The Board concludes that entitlement to a TDIU is warranted in this case. The Veteran meets the schedular criteria for TDIU from June 30, 2005, and the overall weight of the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment based on the most recent VA examinations. The medical opinions provided by VA examiners in conjunction with the December 2012 VA examinations of the left hip, right hand, left elbow, spine, left ankle and feet all concluded that the Veteran could not perform physical employment but could perform sedentary employment. The December 2012 VA examination for PTSD indicated with regard to the Veteran's capabilities for physical and sedentary employment, that the Veteran's PTSD would cause marked impairment with following instructions, sustaining concentration to tasks and responding appropriately in a work setting. The December 2012 VA PTSD examination further indicated that the Veteran would have profound impairment following instructions and responding appropriately in a work setting. Although the Veteran currently works as a security guard, he only works two days a week as he reported in the most recent VA examination. Such part-time employment is not considered substantially gainful employment. After consideration of all of the medical and lay evidence regarding the Veteran's employability, the Board finds the evidence to be in equipoise as to whether the Veteran's service-connected disabilities combine to preclude him from performing the physical and mental acts required by employment. Therefore, resolving all doubt in the Veteran's favor, the Board concludes that a TDIU is warranted. (Continued on next page) ORDER Service connection for left ear hearing loss is denied. Service connection for a left shoulder disorder is denied. Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs