Citation Nr: 1339084 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-29 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In that decision, the RO denied entitlement to service connection for hearing loss and tinnitus; and, granted an increased rating to 50 percent for the service-connected PTSD, effective from August 13, 2008. After the Veteran filed his February 2009 Notice of Disagreement with the December 2008 rating decision, the RO issued a July 2009 rating decision granting a further increase to 70 percent for the service-connected PTSD, effective from August 13, 2008. The RO subsequently issued a Statement of the Case, and the Veteran timely perfected his appeal. As the increase from 50 percent to 70 percent for PTSD is not a complete grant of benefits with respect to the increased rating issue, this issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Finally, where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran raised the issue of entitlement to a TDIU. The claim for the awarding of a TDIU is part of the claim for a higher rating and as such, a determination must also be made with respect to this claim. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. In response to the Veteran's November 2009 claim of service connection for coronary artery disease, the RO issued a duty-to-assist letter to the Veteran in February 2010 acknowledging that the Veteran's claim was being considered under two different theories of entitlement, that of service connection for heart disease secondary to PTSD; and, service connection for heart disease secondary to Agent Orange exposure. In a May 2010 rating decision, the RO granted service connection for coronary artery disease as secondary to the service-connected PTSD, with an effective date of November 9, 2009. In the November 2013 Appellate Brief Presentation, the Veteran's representative points out that the Veteran's claim of service connection for heart disease based on Agent Orange exposure (the alternate theory of entitlement) was never adjudicated. However, the addition of heart disease to the list of diseases subject to the presumption of service connection based on Agent Orange exposure was not made effective until August 31, 2010. Thus, it is not clear why the Veteran's representative requested adjudication based on this alternate theory of entitlement because the current effective date of service connection for coronary artery disease is in November 2009, prior to the August 31, 2010 effective date noted above. Nonetheless, in order to clarify the matter, the issue of entitlement to service connection for coronary artery disease on the basis of presumed Agent Orange exposure is referred to the RO for appropriate action. The issues of entitlement to service connection for hearing loss and tinnitus; and, the issue of entitlement to a disability rating in excess of 70 percent for the service-connected PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection has been established for PTSD, rated as 70 percent disabling; and coronary artery disease, rated as 60 percent disabling, the Veteran's combined disability rating for compensation purposes is 90 percent. 2. The Veteran's service-connected disabilities, as likely as not, preclude the Veteran from obtaining or maintaining gainful employment. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The grant of a TDIU constitutes a complete grant of the benefits sought on appeal with respect to that issue. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. The Veteran asserts that he is unemployable as a result of his service-connected disabilities. Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(d). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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 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 disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection has been established for PTSD, rated as 70 percent disabling; and coronary artery disease, rated as 60 percent disabling. Thus, the Veteran meets the threshold percentage standards under 38 C.F.R. § 4.16(a), for establishing entitlement to a TDIU because his combined rating is 90 percent and both disabilities are rated higher than 40 percent. As such, the only remaining question for consideration is whether the Veteran is unemployable due to his service-connected disabilities. The term unemployability is not synonymous with the terms unemployed and unemployable for the purposes of determining entitlement to TDIU. A veteran may be unemployed or unemployable for a variety of reasons, but a determination as to entitlement to TDIU is appropriate only when a veteran's unemployability is the result of a service-connected disability. See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(c). In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence that it finds persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 149, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The record contains statements suggesting that the Veteran is unemployable due to his PTSD. For example, the VA examiner in September 2008 noted that the Veteran had always been self-employed and opined that it was likely that the Veteran could never have worked for someone else. The examiner further indicated that it had become difficult for him to productively work at home in his home inspection business, mainly due to his poor concentration overall. Subsequent VA examination reports show that the Veteran was only working part time, and eventually sold his business. These findings suggest that the Veteran's ability to work at home began to decline to the point where he could no longer work in an independent setting due to his psychiatric disorder. During the pendency of the appeal, the RO granted service connection with an initial 60 percent rating assigned for coronary artery disease. Other VA records indicate that the Veteran was no longer working due to his cardiac disability. For example, the Veteran's last VA Compensation & Pension psychiatric examination in September 2009 indicated that the Veteran was retired, in part, due to his "cardiac problems." Further, records obtained from the Social Security Administration (SSA) indicate that the Veteran receives Social Security Disability for his heart disease. The SSA records acknowledged that the Veteran had a psychiatric disorder, but the disability determination form indicates that the SSA found the Veteran unemployable solely due to his heart disease. While the decision by the SSA on a claim before that agency is not controlling with respect to VA's determination on a claim, the SSA's determination regarding the Veteran's lack of employability and the reasons for that determination are pertinent for VA purposes. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992). In this case, the SSA's disability determination provides some evidence in support of the Veteran's TDIU claim, since the SSA determined that his primary disability precluding employment was his service-connected coronary artery disease. Similarly, as noted above, some VA records suggest that the Veteran's primary disability precluding employment is his service-connected PTSD. Further, the record shows that the Veteran was likely only marginally employed prior to becoming unemployed. The record shows that the Veteran was only working part time at about 15 to 20 hours per week at home before he sold his business. Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis; it includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a) (2013). Although no medical examiner has provided an opinion as to the Veteran's employability when considering both the service-connected PTSD and the service-connected coronary artery disease, the record speaks for itself. In essence, the evidence suggests that two separate and distinct service-connected disabilities may be the sole cause for unemployability. Furthermore, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, --- F.3d ----, 2013 WL 5788671, (Fed. Cir. Oct. 29, 2013); see also Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The law provides that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity, such as the Veteran in this case. See 38 C.F.R. § 4.10. Moreover, a Veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a). Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In essence, when the SSA's determination is reviewed along with the VA medical records, there arises a reasonable doubt as to whether the Veteran is able to work in any setting as a result of his service-connected disabilities, particularly because there is evidence suggesting that either service-connected disability alone, precludes employment. Given this scenario, it is as likely as not, that both service-connected disabilities when considered together, preclude gainful employment. Resolving all doubt in favor of the Veteran, a TDIU is warranted. ORDER A TDIU is granted, subject to regulations applicable to the payment of monetary benefits. REMAND The Veteran seeks a disability rating in excess of 70 percent for service-connected PTSD. Although it appears from the record that the Veteran's PTSD may have stabilized in recent years, a January 2011 statement from K.G. (the Veteran's long-standing therapist) indicated that the severity of the Veteran's symptoms had "multiplied" over time despite ongoing treatment. K.G. also indicated that the Veteran's memories and flashbacks have increased. In essence, K.G. appears to suggest that there has been a worsening of symptoms since the last VA examination in September 2009. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Accordingly, the Veteran should be reexamined to determine the current nature and severity of the service-connected psychiatric disorder. In this regard, the record essentially reflects that the symptoms associated with the PTSD overlap with the Veteran's other diagnosed psychiatric disorders noted in the record, including major depression and dysthymic disorder. The VA examiner in September 2008, for example, stated that the Veteran's dysthymic disorder was considered to be an aspect of his more global PTSD. When it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, the examiner should consider all of the Veteran's psychiatric symptoms when evaluating his PTSD. Regarding the claims of service connection for hearing loss and tinnitus, the VA audiology examiner in September 2008 opined that the hearing loss and tinnitus were not related to service because there was no threshold shift noted between the time of the entrance examination and discharge, as reflected on the Report of Medical Examination at entry and at discharge. The VA examiner opined that the Veteran's hearing loss noted at his pre-induction examination was likely temporary and due to middle ear infection at that time. The STRs reveal that the Veteran was reexamined after the infection cleared and his hearing had returned to normal. Despite these findings, the September 2008 audiologist did not consider the Veteran's noise exposure in service, and did not consider whether the Veteran's current hearing loss resulted from acoustic trauma in service regardless of when any hearing loss and/or tinnitus was first shown or diagnosed. Even if a disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the September 2008 audiologist did not consider whether a hearing post-service hearing loss resulted from in-service acoustic trauma, the examination is inadequate. As such another audiology examination is necessary to determine whether the Veteran's current hearing loss resulted from in-service acoustic trauma. Since the claims file is being returned, it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA medical records pertaining to the Veteran not currently of record. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file all pertinent private treatment records identified by the Veteran that have not already been obtained. 3. After all outstanding records are obtained, schedule the Veteran for an audiological examination to determine the nature, extent, onset and etiology of the Veteran's hearing loss and tinnitus. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should render an opinion as to whether it is more likely than not (meaning likelihood greater than 50%), at least as likely as not (meaning likelihood of at least 50%), or less likely than not or unlikely (meaning that there is a less than 50% likelihood) that the Veteran's hearing loss and/or tinnitus is related to excessive noise exposure in service. In that regard, the examiner's attention is directed to credible reports of excessive noise exposure in service. The examiner must keep in mind that even if a disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. In this regard, the examiner should indicate if the Veteran has the type of hearing loss that is normally associated with acoustic trauma. The rationale for all opinions expressed should be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After all outstanding records are obtained, schedule the Veteran for an examination by a psychiatrist to ascertain the current severity of his service-connected PTSD. The claims files must be available for review and that review should be indicated in the examination report. The examiner should describe the nature and severity of all symptoms of the Veteran's PTSD and associated diagnoses, including, but not limited to, dysthymia and depression, and how those symptoms affect the Veteran's occupational and social functioning, as well as their effect on his overall disability picture. A Global Assessment of Functioning (GAF) score should be provided, with an explanation of what the GAF score represents. The examiner should also opine as to whether the current severity of the Veteran's PTSD results in total occupational and social impairment. A complete rationale for all opinions is required. 5. Thereafter, readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs