Citation Nr: 1754449	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-15 656A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for tinnitus.  

3.  From October 21, 2010, entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

4.  Entitlement to total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Cannon, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from September 1965 to March 1970, including service in the Republic of Vietnam.  He was honorably discharged.  

This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

In April 2014, the RO granted the Veteran's claim of entitlement to service connection for bilateral hearing loss.  In correspondence dated January 2015, the Veteran stated that he was satisfied with his 0 percent rating and wanted to withdraw this claim from further consideration.

In July 2017, the Veteran testified at a video hearing before the undersigned.  A transcript of that hearing is of record.  


FINDINGS OF FACT

1.  The April 2014 rating decision which granted service connection for bilateral hearing loss is a complete grant of the benefits sought on appeal.

2.  The evidence of record favors a finding of a nexus between an in-service event and the Veteran's current diagnosis of tinnitus.  

3.  From October 21, 2010, the Veteran's posttraumatic stress disorder (PTSD) is characterized by occupational and social impairment, with deficiencies in most areas due to such symptoms as suicidal ideation and impaired impulse control (such as unprovoked irritability with periods of violence), but is not characterized by gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability of the veteran to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name.

4.  From May 20, 2014, the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability; unemployability is not shown prior to that date.


CONCLUSIONS OF LAW

1.  There are no remaining questions of fact or law to be decided on the issue of entitlement to service connection for bilateral hearing loss.  38 U.S.C. § 7104 (2012).

2.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).

3.  From October 21, 2010, the criteria for a disability rating of 70 percent, but no greater, for posttraumatic stress disorder (PTSD) have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017).

4.  From May 20, 2014, the criteria for entitlement to a TDIU have been met; unemployability is not shown prior to May 20, 2014.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

These three elements are satisfied with regard to the Veteran's tinnitus.  Regarding the first element, the January 2011 VA hearing examination indicates that the Veteran has tinnitus.  Regarding the second element, the Veteran has competently testified that he was exposed to loud noises while serving as a radio operator in combat missions during the Vietnam War.  See July 2017 hearing transcript; December 2010 lay statement.  

The evidence is also sufficient to establish the third element, nexus.  The Veteran's lay statements demonstrate that he was exposed to acoustic trauma while in the service and has dealt with hearing since he left active duty.  He has consistently stated that his tinnitus started early during his service in Vietnam and that he had no hearing difficulties prior to Vietnam.  See July 2017 hearing transcript; December 2010 lay statement.  Consistent with this, his entrance examination is consistent with normal hearing.  The Board finds the lay statements regarding observable symptoms of hearing loss and tinnitus to be both competent and credible evidence because the symptoms associated with tinnitus are observable by lay persons.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Thus, the Board places significant weight on these statements.

The Board places less weight on the January 2011 VA medical opinion, which states: "Tinnitus IS NOT CAUSED BY OR A RESULT OF [in-service] noise exposure . . . ."  The rationale for this opinion is that "[t]he Veteran only noticed constant tinnitus in the past two years" and was exposed to noise during his many years of civilian employment.  

There are four problems with the January 2011 VA medical opinion.  First, the opinion does not provide the requisite degree of certainty for a medical nexus, which is whether it is at least as likely as not (a 50 percent or better probability) that the disorder was incurred in or aggravated by the veteran's service.  See Bloom v. West, 12 Vet. App. 185, 187 (Vet. App. 1999).  Second, the examiner's statement that tinnitus did not begin until after service ignores the Veteran's testimony to the contrary.  See December 2010 lay statement.  Third, the opinion incorrectly implies that the Veteran can only be service-connected for "constant tinnitus," but not the intermittent episodes of recurring tinnitus described by the Veteran.  Finally, the examiner does not explain her rationale behind the implied assumption that civilian noise exposure caused the Veteran's tinnitus rather than in-service noise exposure.  Because it is not based on a review of the record and lacks clear conclusions with supporting data connected by a reasoned medical explanation, the January 2011 VA medical opinion is of minimal probative value.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008).

In sum, the Board finds that the Veteran's lay statements are the most probative evidence as to the nature and origin of the Veteran's tinnitus.  These pieces of evidence indicate that the Veteran was exposed to acoustic trauma while on active duty and that he has had issues with his tinnitus since he left active duty service.  The Board has not overlooked the negative opinion provided during the VA examination but the Board finds the other evidence in this case to be more probative.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

II.  Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 

VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran is service-connected for posttraumatic stress disorder (PTSD) from June 7, 2002, at a rating of 50 percent.  He is rated at 100 percent from August 15, 2007, under the provisions of 38 C.F.R. § 4.29.  He is rated at 50 percent from October 1, 2007, as the result of a reduction implemented by an RO decision in May 2008.  The Veteran filed a notice of disagreement in response to the May 2008 decision and a statement of the case issued in April 2009, but the Veteran did not file a VA Form 9.  The May 2008 decision is final.

On October 21, 2010, the Veteran filed a claim for a rating in excess of 50 percent for PTSD.  The RO denied the claim in November 2011.  The Veteran is appealing that decision.  Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed.  38 C.F.R. § 3.400(o).  See A.B. v. Brown, 6 Vet. App. 35 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating).

The Veteran is rated under Diagnostic Code 9411.  Under that code, a 50 percent rating is appropriate when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: Flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130.  

A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id.

A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability of the veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  To adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the Veteran's GAF scores and the enumerated factors listed in 38 C.F.R. § 4.130.  Mauerhan, 16 Vet. App. at 436.  As this claim was certified to the Board after August 4, 2014, DSM V is applicable to the claim.  

Before undertaking analysis, the Board notes that the Veteran is service-connected for prostate cancer, bilateral hearing loss, tinnitus, and erectile dysfunction, but not for other mental disorders.  The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so.  Mittleider v. West, 11 Vet. App. 181 (1998).

The evidence supports a rating of 70 percent based on consistent evidence of occupational and social impairment with deficiencies in most areas due to symptoms such as suicidal ideation and impaired impulse control.  A January 2011 VA psychological examination describes the Veteran as irritable, avoiding crowds, and having "difficulty with regulating [his] emotional state."  An August 2015 VA medical note reveals that the Veteran is "anxious and on edge all the time," that he has experienced several days of suicidal ideation, that "[n]early every day" he is "[a]fraid as if something awful might happen," and that he is "easily annoyed or irritable."  A September 2015 VA medical note indicates hypervigilance, irritability, "getting easily startled," and "feeling anxious in crowds."  In a March 2017 VA medical note, the Veteran "[r]eports history of occasional fleeting [suicidal ideation]."  This medical evidence is consistent with a 70 percent rating.  

Lay statements from the Veteran further support a 70 percent rating.  During a February 2013 RO hearing, the Veteran described how people make him jump, and that he is afraid to be around his grandchildren because he fears that he might lash out at them if they startle him from behind.  He reportedly scares his wife every night by calling in fire missions during his sleep.  

The Veteran provided similar testimony during the July 2017 Board video hearing.  He remorsefully described an incident when he pulled a loaded gun on his wife after she startled him from his sleep.  He stopped bowling after an incident where he lashed out at someone who surprised him from behind, an incident that resulted in being asked to leave the bowling alley.  He has stopped hunting with family members from the fear of being startled from behind while he is holding a gun.  When he is sitting in the living room, his family members will call out his name before entering, so as to avoid startling him.  He reaffirmed that he has fleeting suicidal thoughts, but admitted that his testimony in this regard has not always been consistent.  Taken together, this evidence strongly supports a 70 percent based on consistent evidence of occupational and social impairment with deficiencies in most areas due to symptoms such as suicidal ideation and impaired impulse control.  

The Veteran's symptomatology does not support a rating of 100 percent.  During the course of the appeal, the Veteran's consistent testimony about his symptoms and experiences suggests that his memory is largely intact, which weighs against a finding of gross impairment of thought processes.  Also weighing against such a finding are recent VA medical records where he states improved management of his symptoms.  See June 2017 VA medical record; March 2017 VA medical record.  These records also express a sincere concern for his wife's recent illness and describe his family and grandchildren as being a source of support, all of which weighs against a finding of memory loss names of close relative or himself.  Records also characterize him as clean, appropriately dressed, and oriented as to person, place, and time.  This evidence weighs against a finding of total occupational and social impairment so as to support a rating of 100 percent.  

The evidence does not support additional staged ratings for any time period on appeal.  For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code.  Lastly, the Board finds that the issue of an extraschedular rating has not been raised by the record, and will not consider referral.  Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017).

III.  TDIU

The Veteran is claiming entitlement to individual unemployability due to service-connected disability (TDIU).  Normally, the Board will remand a claim of TDIU for further development where, as here, there has been a favorable decision on a claim for service connection but no rating has been assigned.  In the present case, there is no indication that the Board's grant of service connection for tinnitus will result in a rating in excess of 10 percent, which is the maximum schedular rating for this disorder.  There is also no indication that tinnitus affects employability.  As the Veteran will not be prejudiced by a decision on the record, the Board will decide the Veteran's claim for TDIU without requiring re-adjudication by the RO after assignment of a 10 percent rating for tinnitus.  

VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a).  The same is true for disabilities resulting from common etiology or a single accident.  

In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Marginal employment is not considered to be the same as substantially gainful employment.  In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 

From October 1, 2007, the Veteran's service-connected disabilities are PTSD at 70 percent, tinnitus at 10 percent, and bilateral hearing loss at 0 percent, with a combined rating of 70 percent.  From February 3, 2015, the Veteran's service-connected disabilities are prostate cancer at 100 percent, PTSD at 70 percent, tinnitus at 10 percent, bilateral hearing loss at 0 percent, and erectile dysfunction at 0 percent, with a combined rating of 100 percent.  For both time periods, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a).

Prior to May 20, 2014, the date that the Veteran filed his application for TDIU, the evidence does not support a finding that the Veteran's service-connected conditions alone render him unemployable.  Regarding PTSD, a January 2011 VA examiner that there is "NO documented concerns providing evidence as to veteran's unemployability" and no "total occupational and social impairment due to PTSD signs and symptoms."  Additionally, the Veteran's retirement was related to nonservice-connected physical disabilities, such as shoulder injuries and back pain.  Consistent with this, a May 2002 SSA disability determination form lists "other and unspecified arthropathies" as the Veteran's "primary diagnosis" and a June 2002 letter indicates the Veteran is receiving disability benefits under the Social Security Act because of PTSD and nonservice-connected disabilities such as "osteoarthritis in hands, shoulders and spine, nerve damage."   Finally, in his TDIU application, filed in May 2014, the Veteran states that he has been working part-time as a janitor on the night shift from April of that year to the present.  Taken together, this evidence suggests that the Veteran's service-connected disabilities alone are not severe enough to produce unemployability.  

There is no evidence that the Veteran held a job after May 20, 2014, or engaged in activities related to his prior career in construction.  From that time, the Veteran's PTSD appears to have prohibited employment, in that exaggerated startle response made it essentially impossible for him to work anywhere with noise or where people might come up behind him.  Additionally, in August 2017, a VA prostate examiner stated that the Veteran's prostate cancer prohibits employment, in that this condition results in the need for frequent, immediate restroom stops.   This evidence supports a finding of entitlement to TDIU from May 20, 2014.  

ORDER

The claim for service connection for bilateral hearing loss, having been rendered moot, is dismissed.

Entitlement to service connection for tinnitus is granted.  

From October 21, 2010, entitlement to a disability rating of 70 percent, but no greater, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.  

From May 20, 2014, entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits.  

Prior to May 20, 2014, entitlement to a TDIU is denied.




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

Department of Veterans Affairs