Citation Nr: 1751982	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  12-41 853A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  

2.  Entitlement to a rating in excess of 20 percent for bilateral hearing loss. 

3.  Entitlement to a compensable rating for scars, left knee, residual of shrapnel wound, as secondary to the service-connected disability of the left knee, unstable.

4.  Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 

5.  Entitlement to a rating in excess of 30 percent for left knee, unstable, residual of shrapnel wound with degenerative joint disease currently evaluated as 30 percent disabling. 

6.  Entitlement to a rating in excess of 30 percent for traumatic cataract, right eye.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Bassett, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1943 to January 1945.

This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to an increased rating for hearing loss, scars shrapnel left knee, PTSD, left knee, unstable, residual of shrapnel wound with degenerative joint disease, and traumatic cataract, right eye are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  Service connection has been established for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; traumatic cataract, right eye, rated as 30 percent disabling; left knee, unstable, residual of shrapnel wound with degenerative joint disease, rated as 30 percent disabling; hearing loss, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; scars, shrapnel, left upper arm and left eyelid, rated as 0 percent disabling; and scars, shrapnel, left knee, residual of shrapnel wound associated with left knee, unstable, residual of shrapnel wound with degenerative joint disease, rated as 0 percent disabling.  

2.  The Veteran has one service-connected disability rated at 50 percent, PTSD, with a combined disability rating of 80 percent.  

3.  The Veteran's service-connected disabilities, as likely as not, preclude the Veteran from obtaining or maintaining gainful employment consistent with his educational background and work history.


CONCLUSION OF LAW

Resolving all doubt in favor of the Veteran, the criteria for the assignment of a TDIU have been more nearly approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 


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.  He maintains that the service-connected disabilities of PTSD, rated as 50 percent disabling; traumatic cataract, right eye, rated as 30 percent disabling; left knee, unstable, residual of shrapnel wound with degenerative joint disease, rated as 30 percent disabling; hearing loss, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; scars, shrapnel, left upper arm and left eyelid, rated as 0 percent disabling; and scars, shrapnel, left knee, residual of shrapnel wound associated with left knee, unstable, residual of shrapnel wound with degenerative joint disease, rated as 0 percent disabling, make it impossible for him to obtain or maintain gainful employment.  

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. §§ 3.340(a)(1), 4.15.

A total disability rating 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.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).

In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

The Veteran has a combined rating of 80 percent and a disability rated at 50 percent, thus he meets the schedular threshold percentage criteria for the consideration of a total rating based on individual unemployability due to service-connected disabilities.  38 C.F.R. § 4.16(a).  

The Veteran reported ten years of education to the February 2010 VA examiner.  He also reported that he worked in construction and as an insurance agent before retiring in September 1985.  

The Veteran's compensable service-connected disabilities include mental impairments, a right eye vision impairment, orthopedic impairment of the knee, and audio impairments of hearing loss and tinnitus.  Since the Veteran stopped working in September 1985, service connection has been granted for PTSD, hearing loss, and tinnitus.  These disabilities would impair the Veteran's ability to engage in his past work of an insurance agent.  Difficulty hearing and interacting with others would interfere with the Veteran's ability to learn skills necessary to gain sedentary employment or maintain such employment.  Given these limitations on the Veteran's ability to interact with others, use his senses of sight or hearing for employment, or to perform manual labor, and resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran's service-connected disabilities prevent him from obtaining or maintaining gainful employment.  

For these reasons, the Board finds that the service-connected disabilities are of sufficient severity to preclude the Veteran from maintaining gainful employment and TDIU is warranted.  38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.


ORDER

Entitlement to TDIU is granted, subject to the statutes and regulations governing the payment of monetary benefits.  


REMAND

More development is necessary to ensure cue process.  The Veteran asserted claims for bilateral hearing loss, diabetes, hypertension, nightmares, night sweats, dislike for crowds, and a heart condition in October 2009.  The Veteran asserted his claim for entitlement to TDIU in September 2011 and indicated his disabilities of PTSD, traumatic cataract, right eye, left knee, unstable, and hearing loss prevent him from working.  The RO denied the Veteran's claim for TDIU in an October 2011 rating decision that also decided the Veteran's remaining claims.  The Veteran filed a notice of disagreement in March 2012 and specifically disagreed with the October 2011 denial of TDIU.  He stated that he cannot find employment because of his PTSD, traumatic cataract, right eye, and left knee injury.  The RO issued a November 2012 statement of the case (SOC) denying entitlement to TDIU.  The Veteran filed a substantive appeal in December 2012, which did not request a Board hearing, failed to identify if he was appealing all issues from the SOC or any listed issues, and included a statement indicating he, "can't get gainful employment," and listing PTSD, hearing, eye loss, and knees.  In another December 2012 statement the Veteran wrote, "denied for IU, can't work due to: PTSD, hearing, eyesight, knees... denied by voc rehab...80% disable now!"  

The Veteran filed a new claim for an increased rating for PTSD in March 2013.  Subsequently, the RO issued an April 2014 statement of the case denying the Veteran's claims for increased ratings for scars of the left knee, PTSD, left knee degenerative joint disease, and traumatic cataract, right eye.  The Veteran submitted another substantive appeal in April 2014 and indicated on this appeal that he wished to request a videoconference hearing before a Board member.  However, he also checked a box indicating that he wished to only appeal the TDIU decision.  A supplemental statement of the case was issued in August addressing the Veteran's five increased rating claims and the TDIU claim.  Finally, the Washington office of the Veteran's representative submitted a brief in October 2017 addressing the TDIU issue and the five increased rating claims.  

The Veteran's March 2012 notice of disagreement, his December 2012 substantive appeal, his December 2012 statement, and his April 2014 substantive appeal certainly give the impression that the Veteran wished to only pursue his TDIU claim.  However, contrary to the Veteran's previous statements, his representative indicated disagreement with five additional issues in the October 2017 brief.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).  On top of this ambiguity as to which claims the Veteran wishes to pursue, his two substantive appeals differ on whether he is requesting a hearing before a member of the Board.  While the Veteran's TDIU claim is resolved in his favor by this Board decision, and therefore requires no hearing, the record is unclear as to whether the Veteran desires a hearing for the remaining issues.  As such, remand is warranted to clarify whether the Veteran desires a hearing before a member of the Board for any remaining issues.  

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:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran.  Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c).  If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).

2.  Send the Veteran a letter requesting that he clarify which issues he intended to appeal to the Board.  In the same letter, request that the Veteran clarify whether he desires a Board hearing for any issue he is pursuing on appeal.  

3.  If necessary, schedule the Veteran for a Board hearing with a Veterans Law Judge in accordance with his request.  The Veteran and his attorney should be notified in writing of the date, time and location of the hearing. 

4.  After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, readjudicate any remaining claims  If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case after according the requisite time to respond, and thereafter return the matter for appropriate appellate review.

The Veteran 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.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs