Citation Nr: 1753774 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 15-07 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for tinnitus. 2. The propriety of the reduction of the rating for bilateral hearing loss from 60 percent to 40 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Carol Ponton, Attorney ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from February 1956 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 and April 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran was scheduled for a hearing before the Board in January 2018. In November 2017, prior to the hearing, the Veteran's representative submitted a written statement requesting that the Veteran's appeal with regard to the reduction of the bilateral hearing loss rating and entitlement to a TDIU be granted based on the evidence of record. The representative further stated that if those claims were granted, his appeal would be satisfied and the Veteran would withdraw his request for a hearing. As the Veteran's claims as noted are being granted in full, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The evidence of record does not show that the Veteran's service-connected bilateral hearing loss disability has improved to the point that he is now better able to function under the ordinary conditions of life and work. 2. The Veteran's service-connected disabilities have rendered him unable to maintain substantially gainful employment during the appeal period. 3. In November 2017, prior to the issuance of a decision in the appeal, the Veteran, through counsel, withdrew the remaining appellate claim of entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. The reduction of the 60 percent rating for bilateral hearing loss to 40 percent was improper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105(e) & (i), 3.321, 3.344, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2017). 2. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 3. The criteria for withdrawal of an appeal by the Veteran have been met regarding his claim of entitlement to service connection for tinnitus. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Propriety of Reduction In a rating reduction case, VA has the burden of establishing that the disability has improved. It is well established that VA cannot reduce a veteran's disability evaluation without first finding that the service-connected disability has improved to the point that the veteran is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); see also Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 421 (1993). The Board finds that the competent medical and lay evidence of record does not show that the Veteran's bilateral hearing loss disability has improved to the point that he is now better able to function under the ordinary conditions of life and work. Prior to the Veteran's rating reduction, he reported decreased hearing bilaterally and difficulty communicating in most all listening situations. See May 2007 and September 2008 VA Audiology Examination Reports. He reported he had the most difficulty when he was in the presence of background noise, while watching television or talking on the telephone. See id. During the June 2011 VA Examination upon which the reduction was based, the Veteran again reported severe bilateral hearing loss that affected his ability to use the telephone and communicate with others and engage in normal conversations, especially in adverse listening environments such as with background noise. See June 2011 VA Audiology Examination Report. During the June 2016 VA Audiology Examination, he again reported great difficulty communicating in all listening situations even with the use of hearing aids. The Veteran is competent to report the symptoms and functional impairments he experiences, and the Board finds his reports to be credible. Layno v. Brown, 6 Vet. App. 465 (1994). This evidence shows no change in the Veteran's ability to function, as he has consistently reported difficulty communicating with people in all settings and engage in normal conversation. As such, the Board restores the 60 percent rating for bilateral hearing loss effective June 2, 2011. Entitlement to a TDIU The Board finds that the Veteran's service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment during the appeal period. It is the established policy of the 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. A total disability will be considered to exist 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. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). A TDIU 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 service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Throughout the appeal period the Veteran has been service connected for bowel incontinence associated with chronic colo-proctitis rated at 60 percent disabling, bilateral hearing loss rated at 60 percent, chronic colo-proctitis rated at 30 percent disabling, gouty diathesis with multiple uric acid stones rated at 30 percent, mood disorder rated at 30 percent and hemorrhoids rated as noncompensable. Additionally, the Veteran's combined rating has been 90 percent. Therefore, the schedular criteria for an award of TDIU have been met. See id. Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities have caused him to be unable to maintain substantially gainful employment. The Veteran has not worked since his retirement from service in 1977. See March 2016 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. During the appeal period his service-connected bowel incontinence has been productive of diarrhea, impairment of rectal sphincter control, rectal ulcer and pain. See May 2016 VA Intestinal Conditions Examination Report. He reported having fairly frequent bowel movements and experiencing fecal leakage that required the use of pads. See id; see also May 2016 VA Rectum Examination Report. The VA examiner noted that the Veteran has frequent episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition and that he has frequent bowel incontinence and as such in the bathroom most of the time. See May 2016 VA Intestinal Conditions Examination Report. The examiner noted that the Veteran reported not working since 1977 for these reasons. See id. His bilateral hearing loss makes it difficult for him to communicate with others, even with his hearing aids. See June 2016 VA Audiology Examination; see also May 2016 VA Psychiatric Examination. He has also suffered from chronic kidney stones, passing three to five a week. See May 2016 VA Kidney Conditions Examination Report. Additionally, his service-connected psychiatric disability has caused him to experience chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood and difficulty adapting to stressful circumstances, including at work or a work-like setting. See May 2016 VA Psychiatric Examination Report. In light of these symptoms and their functional impairments, the Board finds that the Veteran's service-connected disabilities preclude gainful occupation. The Veteran' s chronic bowel issues cause him not only to need frequent breaks, but also leads him to be isolated from others because he cannot control his bowel movements. He also suffers chronic pain from his recurrent kidney stones which affects his ability to stay focused and complete tasks. The 2016 VA psychiatric examiner noted that the Veteran is very embarrassed and ashamed of bowel and urine incontinence, and thus finds himself to be more quick-tempered, not having any patience and becoming easily depressed. These symptoms cause the Veteran to withdraw from interaction with others, cause a decrease in his motivation and mood, and make it difficult for him to adapt to stressful circumstances and complete tasks. See October 2017 Evaluation of C.M., Ph.D. Thus, it is clear that due to his chronic bowel, kidney and mood disorders and their effects, he would be unable to work in a substantially gainful occupation. Withdrawn Claim An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The Veteran's representative stated in November 2017 correspondence that the restoration of the Veteran's bilateral hearing loss rating and a grant of a TDIU would satisfy the Veteran's appeal in full. See November 11, 2017 Email Correspondence. The Board interprets this statement as a withdrawal of the Veteran's appeal with regard to the claim of entitlement to service connection for tinnitus. Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed. ORDER The 60 percent rating for bilateral hearing loss is restored effective June 2, 2011, subject to the law and regulations governing the payment of VA monetary benefits. A TDIU is granted, subject to the law and regulations governing the payment of VA monetary benefits. The appeal concerning entitlement to service connection for tinnitus is dismissed. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs