Citation Nr: 1343523	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  10-41 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an initial compensable evaluation for bilateral hearing loss prior to November 29, 2012.

2.  Entitlement to an evaluation in excess of 50 percent for bilateral hearing loss, beginning November 29, 2012.  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. 


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESSES AT HEARING ON APPEAL

Appellant, his son, and a friend

ATTORNEY FOR THE BOARD

D. Schechter, Counsel 


INTRODUCTION

The Veteran served on active military duty from March 1951 to December 1952. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013).  


FINDINGS OF FACT

1.  Prior to November 29, 2012, the Veteran's bilateral hearing loss, at its worst, was manifested by audiometric test results corresponding to a numeric designation of Level IV for the left ear and numerical designation Level II for the right ear.  

2.  Beginning November 29, 2012, the Veteran's bilateral hearing loss, at its worst, has been manifested by audiometric test results corresponding to a numeric designation of Level XIII for each ear.

3.  Service connection is in effect for posttraumatic stress disorder (PTSD), rated 50 percent disabling from January 26, 2009; bilateral sensorineural hearing loss, assigned a noncompensable evaluation from January 26, 2009, and 50 percent disabling from November 29, 2012; and bilateral tinnitus, rated 10 percent disabling from January 26, 2009.  With consideration of bilateral factors and application of the combined rating table, a combined disability rating of 60 percent was assigned from January 26, 2009, and 80 percent from November 29, 2012.  


4.  Prior to November 29, 2012, with consideration of his educational level, work experience, and vocational attainment, but without consideration of his age or nonservice-connected disorders, the Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.

4.  Beginning November 29, 2012, with consideration of his educational level, work experience, and vocational attainment, but without consideration of his age or nonservice-connected disorders, the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.


CONCLUSIONS OF LAW

1.  Prior to November 29, 2012, the criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100 (2013).

2.  Beginning November 29, 2012, the criteria for an evaluation in excess 50 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100 (2013).

3.  Prior to November 29, 2012, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013).

2.  Beginning November 29, 2012, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating their claims 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, 3.326(a) (2012). 

The February 2009, June 2009, and July 2009 letters informed the Veteran of the notice and duty-to-assist provisions, and of the information and evidence necessary to substantiate the claims, as well as informing of the respective roles of the Veteran and VA in developing the claims and obtaining evidence, with the ultimate responsibility for ensuring that relevant evidence is obtained assigned to the Veteran.  The letters also provided the Veteran with general notice of the evidence required to satisfy the claims, on both schedular and extraschedular bases.  The Veteran was afforded notice of how disability ratings and effective dates are assigned.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

VA's duty to assist the Veteran in the development of the claims includes assisting him 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.  These duties were accomplished in this case.  The Board finds that the RO appropriately assisted the Veteran in obtaining indicated treatment and evaluation records, including both VA and private records.  Service records were also associated with the claims file.  

The RO made appropriate efforts to secure records underlying any Social Security disability determination.  By an official Social Security Administration (SSA) response in July 2010, VA was informed that the Veteran's SSA records had been destroyed.  The RO also informed the Veteran, including in the appealed rating action, subsequent rating actions, and by a statement of the case and supplemental statements of the case, of records obtained and thus, by implication, of records not obtained, in furtherance of his claims. 

VA's duty to assist the Veteran by providing examinations when necessary was also adequately fulfilled.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran was afforded multiple disability rating examinations regarding the hearing loss and the total disability rating based on individual unemployability (TDIU) claims, addressing the Veteran's service-connected disabilities both individually and as a whole with respect to their impact on his capacity for substantially gainful employment.  

The Veteran was afforded a VA audiology examinations in October 2009, January 2011, and November 2012, to ascertain the severity of his bilateral hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The examiners reviewed the Veteran's claims file including treatment records, and administered thorough examinations, allowing for fully-informed evaluation of the claimed disability.  The November 2012 examiner appropriately noted the impact of the hearing loss on daily activities and employment.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  To date, the Veteran has not advanced an argument that the November 2012 audiology examination was deficient in this respect or that he was prejudiced thereby.  Id.  The Board finds that the prior audiology examinations, taken together with the November 2012 examination and the record as a whole, are sufficient to address the hearing loss disability status over the entire rating period.  

The Veteran was afforded individual VA examinations addressing his service-connected disabilities and their severity, as well as a VA examination in April 2013 and an addendum evaluation in August 2013 addressing the whether the Veteran was incapable of obtaining or sustaining substantially gainful employment due to his service-connected disabilities.  These examinations, taken together with past examinations, and records of VA, private, and service treatment, statements by the Veteran and other lay statements and testimony, as well as other evidence of record, are adequate for the Board's adjudication herein.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board also finds that requirements of the Board's October 2012 and July 2013 remands of the hearing loss and TDIU claims have been substantially fulfilled.  This included affording the Veteran the opportunity to submit additional evidence or argument and to assist VA in obtaining additional relevant evidence, obtaining indicated treatment records, affording the above-noted VA examinations addressing hearing loss and the impact of service-connected disabilities on employability, and readjudicating the claim by a supplemental statement of the case.  Only substantial, and not strict, compliance with the terms of a Board remand is required.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 

The Veteran has not indicated the existence of additional pertinent evidence.  The case presents no reasonable possibility that additional evidentiary requests would further the appealed claims.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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).  In short, in this case, with regard to the hearing loss and TDIU claims herein adjudicated, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the rating assigned for the rating period in question, for the appealed claim.  ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). 

II.  Bilateral Hearing Loss

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule).  38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §4.1 (2013).  

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria.  See 38 C.F.R. § 4.85.  Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second).  The Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI in order to evaluate the degree of disability from bilateral service-connected defective hearing.  An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  This was accomplished in this case.  Examinations are to be conducted without the use of hearing aids.  Id.  This was also done upon VA examinations addressed herein.  

Upon an October 2009 VA audiology examination, the Veteran complained of hearing loss related to acoustic trauma in service involving weapons and explosions, including in a combat zone.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Average
1000 - 4000
RIGHT
25
40
50
60
60
52.5
LEFT
30
45
55
65
55
55

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear.  Immittance measures were consistent with pure tone results.  Sensorineural hearing loss was assessed, bilaterally.  The examiner noted that while the pure tone results reflected moderately severe impairment, bilaterally, speech discrimination testing revealed only mild impairment, bilaterally.  The examiner assessed no effects on usual daily activities and no significant occupational effects.  

Upon a January 2011 VA audiology examination, the Veteran complained of bilateral hearing loss and constant tinnitus related to his acoustic trauma during his Korean wartime experiences.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Average
1000 - 4000
RIGHT
30
45
55
55
60
53.75
LEFT
25
45
55
55
55
52.5

Speech audiometry revealed speech recognition ability of 88 percent, bilaterally.  The examiner also found middle ear function within normal limits, bilaterally.  The examiner assessed mild sloping to moderately severe sensorineural hearing loss, bilaterally.  The examiner assessed significant occupational effects of the Veteran's hearing loss.  

At his August 2012 hearing before the Board, the Veteran testified to considerably worsened hearing since the January 2011 VA hearing loss examination.  This was also supported by testimony of the Veteran's son and a friend, both of whom address hearing difficulties of the Veteran and associated frustration expressed or demonstrated by the Veteran.   

Upon VA audiology examination in November 2012, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Average
1000 - 4000
RIGHT
55
65
70
85
85
76
LEFT
75
70
70
80
80
75

Speech audiometry revealed speech recognition ability of 58 percent, bilaterally.  Auditory ear functioning was otherwise found normal.  

The November 2012 examiner found the test results valid for rating purposes, and diagnosed bilateral sensorineural hearing loss.  The examiner noted that people with the Veteran's level of hearing impairment could function in occupational settings, though they would have difficulties with noisy environments, work requiring non-face-to-face communication, and work requiring attention to high-pitched sounds.  

Applying the October 2009 results to the Schedule reveals numeric designations of Level II in the right ear and Level IV in the left ear.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  Applying the January 2011 results to the Schedule reveals numeric designations of Level II, bilaterally.  Id.  Applying these findings to the Schedule results in a noncompensable rating for bilateral loss under Diagnostic Code 6100, for the October 2009 and January 2011 results.  38 C.F.R. § 4.85, Table VII.  The November 2012 results demonstrate a numeric designation of Level VIII, bilaterally.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  Applying these findings to the Schedule results in a 50 percent rating for the November 2012 results.  38 C.F.R. § 4.85, Table VII.  The particular hearing loss patterns are not shown to warrant application of 38 C.F.R. § 4.86.  

Additionally, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected bilateral hearing loss varied to such an extent that a rating greater or lesser than the currently staged ratings would be warranted.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2013).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2013). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned ratings inadequate.  The Veteran's service-connected bilateral hearing loss is evaluated pursuant to 38 C.F.R. § 4.85, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability.  Id.  Prior to November 29, 2012, the Veteran's bilateral hearing loss, at its worst, was manifested by audiometric test results corresponding to a numeric designation of Level IV for the left ear and numerical designation Level II for the right ear.  Beginning November 29, 2012, the Veteran's bilateral hearing loss, at its worst, has been manifested by audiometric test results corresponding to a numeric designation of Level XIII for each ear.  When comparing these disability pictures with the symptoms contemplated by the Schedule, the Board finds that the Veteran's experiences are congruent with the disability pictures represented by the disability ratings assigned.  Moreover, in specific cases of hearing impairment, the Schedule provides for exceptional patterns of hearing loss; however, the medical record does not show that the Veteran's bilateral hearing acuity meets the regulatory requirements for a pattern of exceptional hearing impairment.  38 C.F.R. § 4.86.  With regard to functional impairment, the Veteran's speech discrimination abilities have been specifically measured by VA audiological examinations and this functional impairment has thus been taken into account as part of the currently assigned evaluation.  See Martinak, 21 Vet. App. at 455.  Consequently, the Board concludes that a schedular evaluation is adequate, and referral of the Veteran's case for extraschedular consideration is not required.  See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). 
III.  TDIU

Entitlement to TDIU is an element of all claims for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009).  The Board finds that the claim for TDIU is properly the subject of the instant appeal. 

TDIU may be assigned where the schedular rating for the service-connected disabilities is less than 100 percent when it is found that the veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.  38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16.  TDIU is warranted when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent.  38 C.F.R. § 4.16(a).  In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment.  38 C.F.R. § 4.16(b). 

The Veteran's service-connected disabilities consist of PTSD, rated 50 percent disabling from January 26, 2009; bilateral sensorineural hearing loss, assigned a noncompensable evaluation from January 26, 2009, and rated 50 percent disabling from November 29, 2012; and bilateral tinnitus, rated 10 percent disabling from January 26, 2009.  With consideration of bilateral factors and application of the combined rating table, a combined disability of 60 percent was assigned from January 26, 2009, and 80 percent from November 29, 2012.  

Upon VA initial PTSD examination for compensation purposes in May 2009, the Veteran was noted as an apparently reliable historian, notwithstanding reported problems with recent memory functioning.  The Veteran's military history including combat exposure in the Korean Conflict was noted.  The examiner also noted numerous current medical conditions, including left below-knee amputation in the prior year, past transient ischemic attack, back pain, hypertension, obstructive sleep apnea, and renal insufficiency.  At the May 2009 examination the Veteran reported in recent years thinking frequently about his experiences in service in Korea, and becoming upset by them.  Also at the examination, a son of the Veteran reported that over the years the Veteran had been mostly pleasant, but he declined to discuss his war experiences.  The Veteran reported having nightmares about wartime experiences multiple times per week, but keeping them to himself.  

At the examination, the Veteran was alert, attentive, and oriented, with appropriate affect and neutral mood.  However, he demonstrated emotional distress when discussing events in service in Korea.  The Veteran denied social difficulties over the years.  He did complained of fitful and diminished sleep, as well as poor appetite.  The examiner found insight somewhat weak and judgment fair.  The examiner diagnosed PTSD and assigned a global assessment functioning score (GAF) score of 55.  See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994).  The examiner did not differentiate occupational impairment solely due to PTSD, but rather concluded that the Veteran was currently unable to work "due to his medical problems and advanced age."

The evidence of record contains letters from a private psychologist in November 2009, and from the treating Vet Center in February 2010.  The psychologist attributed the Veteran's current emotional difficulties to his service experiences, and assessed that the Veteran could not tolerate even "minimal stress" and hence could not manage "any gainful employment."  The Vet Center licensed clinical social worker reported that the Veteran had deficiencies in most areas of social and occupational impairment, and assigned a GAF score of 50.  Id. 

In a March 2011 statement from a treating VA physician, the physician opined that the Veteran was not capable of any employment as a result of his "chronic medical problems."  These problems were noted to include a pituitary adenoma, gout, hypertension, PTSD, coronary artery disease with arterial fibrillation, peripheral vascular disease, hearing loss, renal insufficiency, left leg amputation, and obstructive sleep apnea.  The physician observed that the Veteran's means of assistance included a wheelchair, a prosthesis, a walker, bathroom aids, and personal assistance of another with activities of daily living.  

Upon VA PTSD examination in April 2011, the VA examiner who examined the Veteran in May 2009 for PTSD again examined him, and reviewed with the Veteran the medical history previously obtained.  The examiner noted that the Veteran had had "some" memory function difficulty upon the May 2009 VA examination, but the Veteran's memory appeared "somewhat" clearer on the present examination, as he was able to provide background information.  The Veteran nonetheless had difficulty understanding when the examiner tried to explain claim-related issues.   The examiner thereby concluded that the Veteran had "some" degree of mental confusion.  

At the April 2011 examination, the Veteran reported he had been married to his present wife for 22 years.  He denied recent trauma, significant legal history, or drug or alcohol use.  The Veteran had only one "good" leg, with which he was having increasing problems, and he used a scooter for locomotion.  The Veteran reported continued intrusive thoughts of Korean war experiences, thinking about those experiences several times per week.  When discussing his war experiences, the Veteran was noted to experience decreased mood, and becoming anxious and upset.  The Veteran also reported some recurring distressing nightmares about violence, attacks, or threats.  A history of intense fighting in the Korean Conflict was noted.  

At the examination the Veteran was alert and oriented, with speech clear and goal directed.  He demonstrated rational thought and an appropriate affect.  The Veteran denied any history of hallucinations, delusions, or mania.  He reported sleeping three to four hours per night and having poor appetite.  Motivation was fair and mental pace was mildly slowed.  Insight was mildly weak and judgment was fair.  The April 2011 examiner diagnosed PTSD and assessed a GAF score of 51.  The Veteran was noted to complained of increased war-related nightmares since his prior examination, and demonstrated significant emotional distress when war topics were discussed.  The examiner concluded that the Veteran's prognosis regarding his handling of his wartime experiences was poor, particularly since confronting the issues produced distress.  However, the examiner concluded that the Veteran's mental health difficulties alone, without consideration of his age or physical impairments, were insufficient to preclude employment.  

At his August 2012 hearing, the Veteran testified that his bilateral hearing loss made it difficult for him to hear instructions, which could interfere with work.  He added that his hearing loss had grown much worse, and "sometimes" he could not understand what was said.  He also asserted that his tinnitus made it difficult for him to hear.  He testified that while he had been given hearing aids by VA, these hurt his ears and he would take them out after.  Also at the hearing, the Veteran's representative contended that the Veteran could not understand what was said unless he was looking at the speaker.  Regarding his PTSD, the Veteran testified that he had stress associated with his PTSD.  He asserted that he may be anxious when he does not understand what someone is saying, but "not as bad as I used to be."  At the August 2012 hearing, a friend of the Veteran testified that he had seen the Veteran grow frustrated and angry when he had difficulties because he could not hearing what he was being told.  This friend added that the Veteran was able to gradually put together what he was being told if he was looking at the person who was speaking to him.  The friend added that the Veteran's PTSD caused frustration and anger.  Also at the hearing, the Veteran's son testified to the Veteran becoming very frustrated, and trying to say something in conversation but the words not coming out the way he wanted them to.  The Veteran's son also addressed the Veteran making statements which would be unrelated to the current topic of conversation.  The Veteran's son attributed this to the Veteran's hearing difficulty.  The Veteran's son added that PTSD symptoms he observed included the Veteran at times self-isolating when he becomes tired of trying to listen but being unable hear.  The son testified that the aspect of PTSD he had observed was frustration.  The son also noted the Veteran's frustration with inability to move and do things like he used to because physical impairments.  

Upon an April 2013 psychiatric examination, the examiner noted that the Veteran was cooperative, and that while he was moderately hard of hearing he was able to follow the examiner's questions without the examiner having to raise his voice.  The Veteran's speech was coherent and clear, though his responses were slowed.  His mood also appeared dysphoric, and he described himself as  miserable due to physical pain associated with the stumps from his leg amputations.  The Veteran was alert and oriented ,with thought processes generally linear and organized.  He complained of inconsistent remote memory, and he demonstrated difficulty with remote events.  Short-term memory was mildly impaired.

At the April 2013 psychiatric examination, the Veteran reported sleeping 12 hours at night and taking a three hour nap, with sleep difficulty associated with physical pain, as well as frequent Korean Conflict-related dreams.  The Veteran also reported avoidance of thoughts of his war experiences, since thinking of them caused him "turmoil for days."  The Veteran did not describe emotional detachment from others, but complained of difficulties with concentration.  

The April 2013 psychiatric examiner concluded that the Veteran's impairments of memory, concentration, processing speed, and frustration tolerance would together render him incapable of maintaining substantially gainful employment.  The examiner assessed, however, that these difficulties were due to the Veteran's advanced age as well as his PTSD, and that his PTSD would likely not preclude maintaining substantially gainful employment.  

Upon another April 2013 VA examination, the examiner reviewed relevant evidence and concluded that it was "less likely as not" that the Veteran's service-connected hearing loss, tinnitus, and PTSD would render him incapable of sustaining substantially gainful employment.  The examiner noted that the Veteran had subthreshold PTSD, with intrusive thoughts and nightmares of his Korean Conflict experiences, which would be manifested by moderate concentration difficulty when occupied with intrusive thoughts, and when nightmares interfered with his sleep.  The examiner opined that the Veteran's difficulties with memory, concentration, mental processing speed, and frustration tolerance related to both his PTSD and his age, and these together would likely render him incapable of maintaining substantially gainful employment.  However, the examiner also noted that his cognitive difficulties were "believed to be largely related to his age."  The examiner also emphasized that the Veteran was impaired by "numerous physical problems and chronic pain."

The April 2013 VA PTSD examiner further concluded in an August 2013 addendum evaluation that the Veteran's hearing loss and tinnitus would not render him unable to function if he used hearing aids.  The examiner added that the Veteran would be capable of performing work with low noise exposure, and further concluded that the Veteran's service-connected disabilities were not preclusive of obtaining or maintaining substantially gainful employment "consistent with his 5th grade education."

The Veteran's past education was limited, with the Veteran not having attained a high school education.  His work experience reportedly consisted primarily of felling trees including for the lumber industry.  

Prior to November 29, 2012

The schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met prior to November 29, 2012.  Because the Board finds no exceptional or unusual circumstances supporting a total disability rating based on unemployability due to service-connected disabilities prior to November 29, 2012, the Board concludes that referral for consideration of TDIU on an extraschedular basis under 38 C.F.R. §  4.16(b) is not warranted for that prior interval.  38 C.F.R. § 4.16(b).  The Board has determined herein that a compensable evaluation for hearing loss prior November 29, 2012 is not shown by the evidence of record, and absent the significant hearing impairment shown prior to the most recent examination on November 29, 2012, the Board does not find circumstances particular to this case which support unemployability due solely to service-connected disabilities, education, and work experience, without consideration of age or non-service-connected disabilities.  The weight of the evidence prior to November 29, 2012, is against the Veteran's PTSD, combined with the Veteran's then limited or minimal hearing impairment and tinnitus, having precluded the Veteran from obtaining or retaining substantially gainful employment.  

While the Board has considered the assessments of the private psychologist in November 2009 and the Vet Center examiner in February 2010, they notably failed to consider the Veteran's impairments of cognition due to advanced age and physical impairments.  The more recent VA examiners, by contrast, did consider these, and have found that much of the Veteran's mental impairment is attributable to cognitive decline and stress-intolerance associated with nonservice-connected physical impairments and advanced age.  The weight of the evidence supports these conclusions.  Hence, the November 2009 and February 2010 assessments are deficient for failure to adequately address these nonservice-related circumstances of impairment impacting the Veteran's functioning.  An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions.  Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  The November 2009 and February 2010 assessments are less probative than the subsequent VA examination assessments, principally because they provide no indication that their analysis considered other psychiatric or medical impairment as impacting the Veteran's mental or cognitive functioning distinctly or in addition to impact of the Veteran's PTSD.  

The Board concludes, by the weight of the evidence, that the Veteran's service-connected PTSD, hearing loss, and tinnitus do not prevent the Veteran from obtaining or maintaining substantially gainful employment prior to November 29, 2012.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Beginning November 29, 2012

Given the recent medical evidence demonstrating an increase in hearing loss impairment, and the Veteran's limited education and limited breadth of work experience, the Board finds that the Veteran would be unable to obtain or retain substantially gainful employment due solely to his service-connected disabilities of PTSD, hearing loss, and tinnitus, without consideration of his nonservice-connected disabilities or his advanced age beginning November 29, 2012, the date of the VA hearing loss examination when the Veteran's recently increased severity of hearing impairment was established by medical examination.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.16(a).  This determination is made on a schedular basis, as the combined service-connected disability rating is 80 percent beginning from that date.  38 C.F.R. §§ 4.25, 4.16(a) (2013). 



ORDER

Prior to November 29, 2012, a compensable evaluation for bilateral hearing loss is denied.  

Beginning November 29, 2012, a rating in excess of 50 percent for bilateral hearing loss is denied.  

Prior to November 29, 2012, TDIU is denied.  

Beginning November 29, 2012, TDIU is granted, subject to the laws and regulations governing the payment of monetary awards.  



____________________________________________
JOY A. MCDONALD 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs