Citation Nr: 1644172 Decision Date: 11/21/16 Archive Date: 12/01/16 DOCKET NO. 14-12 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1946 to March 1946 and from February 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia Pennsylvania. In February 2015, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service-connected disabilities precluded him from obtaining and following a substantially gainful occupation CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155 5107(b) (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent the action taken herein below is favorable to the Veteran, further discussion of the duties to assist and notify is not necessary at this time. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Throughout the appeal period the Veteran has been service-connected for the following disabilities: posttraumatic stress disorder (PTSD), rated as 70 percent disabling; left Bell's palsy, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and, bilateral hearing loss, rated as 10 percent. The Veteran has a combined disability rating of 80 percent effective June 17, 2011. Hence, the Veteran meets the criteria for a schedular TDIU rating per 38 C.F.R. § 4.16(a) In November 2012, the Veteran was afforded VA examinations to determine the functional impairment caused by his service-connected disabilities. The VA examiner commented that the Veteran's service-connected Bell's palsy caused mild numbness and weakness of the left face, which caused mild social problems with drooling and food dribbling. His major limitation, with regard to Bell's palsy, was his inability to wear a respirator. The Veteran's bilateral hearing loss and tinnitus made it difficult for him to work. He had difficulty hearing conversation even with the use of hearing aids. With regard to PTSD, the VA examiner reported that the Veteran worked for 23 years as a starter at a golf course. He worked 3 days per week during golfing season from April 1 to October 31. He was timely, reliable, and generally got along well with everyone at work. The Veteran commented that during the past couple of years he became more impatient. The VA examiner opined that although the Veteran's PTSD caused some degree of occupational impairment, but it was less likely than not that the Veteran's PTSD rendered him unable to secure or maintain gainful employment. In March 2014, the Veteran was afforded a VA examination to determine the severity of his Bell's palsy. The VA examiner stated that the Veteran's left sided facial pain affected his ability to focus and concentrate on tasks. His facial weakness caused difficulty with chewing and salivation, which caused embarrassment in social settings. This impacted his ability to work. In July 2014, Dr. G.I. wrote that the Veteran had multiple medical conditions which made him unable to work. However, he did not specify which medical conditions made him unable to work. In May 2015, Ms. M.D., a VA psychiatric mental health nurse practitioner, wrote that the Veteran was followed by her clinic for PTSD. His symptoms included hypervigilance, anxiety, irritability, and depression. She opined that the Veteran was unable to work due to his PTSD. In June 2015, Dr. G.I. wrote that the Veteran had been under his care for many years. His PTSD made him unable to work due to his irritability and inability to handle stress. Dr. G.I. elaborated that the Veteran got nervous if anyone confronted him about his condition. In September 2015, the Veteran was afforded a VA examination to determine the severity of his Bell's palsy. The VA examiner indicated that the Veteran's Bell's palsy did not impact his ability to work. He elaborated that the Veteran did not appear to have significant residuals and was able to move the left side of his face normally. In March 2016, the Veteran was afforded a VA examination to determine the severity of his PTSD. During the interview, the Veteran had an episode of pain in his head from his right cheek to his forehead. He doubled over, held his head, and had tears in his eyes. He was not cognitively affected by this episode. His PTSD was productive of reduced reliability and productivity. The Veteran worked as a teacher until his retirement in 1984. Over the past 23 years, the Veteran worked as a starter at a golf course. He was timely, reliable, and generally got along well with everyone at work. The job caused him too much distress and aggravation. He described being short tempered and overacted to small aggravations that did not use to bother him. The VA examiner commented that the Veteran's PTSD had progressed. Due to his increased irritability, he quit his part-time job at his local golf course. He felt more lonely and isolated from friends as a result. He had lost 30 pounds and was less interested in eating over the past 5 years. The Veteran was increasingly impatient and irritable. The Veteran no longer drove and had a history of road rage. He still cooked and drove his granddaughter to school. In March 2016, Veteran underwent a VA audiological examination. The VA examiner wrote that the Veteran's hearing loss impacted him in all communicative stages. He had mild sloping to severe hearing loss in both ears. This caused difficulty hearing and understanding speech in noise and when people were not facing him. It was hard for him to hear at a distance and via the telephone. In April 2016, the Veteran was afforded a VA examination to determine the functional impact of his Bell's palsy. The VA examiner indicated that the Veteran's peripheral nerve condition affected his ability to work. The VA examiner elaborated that the wind made his face hurt. In April 2016, the Veteran underwent another VA examination to determine the severity of his PTSD. The VA examiner diagnosed PTSD and major depressive disorder (MDD), but indicated that he was unable to differentiate which symptoms were attributable to each diagnosis. The VA examiner opined that the Veteran's PTSD and MDD would likely impair the Veteran's employment in any setting regarding concentration, satisfactory attendance, interactions with others, and maintaining his energy level. The Board finds that the weight of the evidence supports a TDIU as the Veteran's service connected disabilities preclude him from substantially gainful employment. The Veteran's treating physician and VA psychiatric mental health nurse practitioner both found that his PTSD precluded substantially gainful employment. The Board acknowledges that the November 2012 VA examiner found that the Veteran's PTSD did not render him unable to engage in substantially gainful employment. However, this opinion is outweighed by the positive opinions provided by the Veteran's treating doctor and VA psychiatric mental health nurse practitioner. The positive opinions are more probative, because they were rendered by medical professionals that were more familiar with the Veteran and his mental health history. Additionally, the Veteran's March 2016 audiological evaluation highlighted his inability to communicate on the phone and in noisy environments. Therefore, the claim for a TDIU is granted. 38 C.F.R. § 4.16. ORDER Entitlement to a TDIU is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs