Citation Nr: 1752257 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-06 966A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus II. 3. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: David Anaise, Attorney at law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and July 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified before the undersigned in an April 2017 hearing. A hearing transcript is of record. The issues of ratings for PTSD and diabetes are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and probative evidence shows the Veteran's current bilateral hearing loss was incurred from in-service noise exposure. 2. The evidence shows that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected PTSD, diabetic neuropathy, and stroke beginning May 2012. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.385 (2017). 2. The criteria for TDIU have been met beginning May 2012. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that his hearing loss is related to noise exposure in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic diseases will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. § 3.307(a)(3). Lay statements of continuity of symptomatology may prove service connection for those chronic diseases enumerated in 38 U.S.C.A. § 1101(3). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses but not to diagnose hearing loss or determine its cause as this requires specialized training to understand the complexities of the neurological system. See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Following a review of the evidence, the Board determines that the criteria for service connection for bilateral hearing loss have been met. 38 C.F.R. § 3.303. First, the evidence establishes current hearing loss disability. The February 2012 examination showed a bilateral hearing loss disability for VA purposes, to include having at least one frequency between 500 and 4000 Hertz of 40 decibels or higher. See 38 C.F.R. § 3.385. The majority of his hearing loss was in the higher frequencies. A private audiologist in November 2010 diagnosed mild sensorineural high frequency hearing loss. Next, the evidence shows in-service noise exposure. In the Board hearing and VA examination, the Veteran reported building bridges and clearing areas as an engineer in Vietnam and being exposed to firefights, rifle fire, and B52 air raids. The Veteran's DD214 confirms that he served in Vietnam, had rifle training, and worked as a construction machine operator. The Board finds that he had loud noise exposure in service consistent with the types, places, and circumstances of such service. Last, the evidence is in relative equipoise on the question of nexus to service. In a July 2012 addendum opinion, the VA examiner opined that military noise exposure did not have an effect on Veteran's hearing. The examiner explained that the entrance examination showed mild hearing loss in the left ear and normal hearing in the right ear, the separation examination showed hearing within normal limits in both ears, and the Veteran had a significant history of occupational noise exposure working in factories. The Veteran reported working at General Motors and a paper mill after service but being required to wear hearing protection. The November 2010 private audiologist considered the Veteran's military and civilian noise exposure and concluded that his mild high frequency hearing loss was "very likely" initiated in military service. The Board finds both the examiner's and the private audiologist's opinions probative as they considered the evidence of record and explained their conclusions. Here, the competent, credible evidence regarding nexus equally weighs for and against the claim; therefore, the Board resolves reasonable doubt in favor of the Veteran. See 38 C.F.R. § 3.102. As such, service connection for the Veteran's current bilateral hearing loss is warranted. See 38 C.F.R. § 3.303. IV. TDIU A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for PTSD (50 percent), diabetes, diabetic neuropathy of the left upper and bilateral lower extremities, bruxism, arteriosclerotic cerebrovascular disease with vertigo, tinnitus, and hearing loss. His combined disability rating is 80 percent, which satisfies the threshold requirements for TDIU. See 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (noting that, while "the rating schedule is based on the 'average impairment in earning capacity caused by a disability,' . . . entitlement to TDIU is based on an individual's particular circumstance"). The Board finds that the criteria for compensation based on TDIU have been met from May 2012, or the day after the date of last employment. See 38 C.F.R. § 4.16. The evidence shows that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected PTSD, diabetic neuropathy, and arteriosclerotic cerebrovascular disease with vertigo (stroke). In his application for TDIU, the Veteran reported completing high school and one year of college. After separating from service, he worked for General Motors (for approximately 14 years) and then as a machine operator at a paper mill for approximately 23 years. He indicated that he stopped working in May 2012; he did not provide a specific day. During the Board hearing, the Veteran and his wife reported that his work at the paper mill required him to climb stairs, turn large valves, work on a computer, and check gauges. Based on the foregoing, the Board finds that the Veteran's work history and education qualify him generally for labor and customer service work. The evidence shows the Veteran's PTSD symptoms interfere with his ability for interpersonal interaction, concentration, and short-term memory. The May 2013 examiner, however, found that the Veteran was not unemployabile from PTSD alone because he retired due to non-psychiatric problems. The February 2012 examiner opined that the Veteran's diabetes and diabetic neuropathy did not impact his ability to work. The May 2013 examiner agreed with the functional assessment of diabetes but wrote that peripheral neuropathy would prevent heavy physical but not sedentary work. The Veteran testified at the Board hearing that after his stroke be was not able to climb stairs or walk at his job. The Veteran applied for vocational rehabilitation but was not found feasible to benefit from services to return to work. The August 2012 vocational rehabilitation records discuss impairment to employment from PTSD symptoms like withdrawal, nightmares, and depression, from neuropathy symptoms such as limitations in standing, kneeling, lifting, and climbing stairs, and from memory problems secondary to his stroke. The evidence shows that the Veteran's peripheral neuropathy would interfere with his physical abilities such as standing, climbing stairs, and lifting. His past jobs as a machinists require similar activities. The Veteran's PTSD symptoms would make it difficult for him to work in a customer service job where he had to interact with many other people. His impaired memory could interfere with his ability to learn and accomplish new tasks. Based on the evidence, the Board finds that the Veteran is not unemployable from the effects of his PTSD, neuropathy, or stroke alone but the combined effects cause him to be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. §§ 4.3, 4.16. He is eligible for TDIU benefits beginning in May 2012, the day after his last day of employment. ORDER Service connection for bilateral hearing loss is granted. Compensation for TDIU beginning May 2012, or the date after the last day of employment, is granted. REMAND During the Board hearing, the Veteran reported receiving Social Security Administration benefits for disability based on hearing, mental health, and diabetes. Records from the Social Security Administration do not appear in the claims file. Since the Veteran indicated that the Social Security records may be relevant to his PTSD and diabetes claims, those records should be obtained and associated with the claims file. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) (finding that as long as a reasonable possibility exists that SSA records are relevant to the Veteran's VA claim, VA is required to assist him in obtaining them). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain and associate with the claims file any of the Veteran's records from the Social Security Administration. Requests for federal records should continue until the records are obtain or deemed unavailable. 3. If any issue on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. 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. 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). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs