Citation Nr: 1803541 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-33 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a compensable initial rating, and a rating in excess of 10 percent from May 27, 2015 for bilateral hearing loss. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the VA Regional Office (RO) in Seattle, Washington, that assigned a noncompensable disability rating for bilateral hearing loss, after granting service connection for the same. By a rating action dated in July 2015, the noncompensable rating was increased to 10 percent, effective from May 2015. There was no rating decision specifically addressing the claim for TDIU. Rather, the TDIU claim was adjudicated in a September 2013 statement of the case (SOC) that addressed a claim for an increased rating for PTSD. The PTSD claim was not appealed. However, the Veteran did file a substantive appeal with respect to the TDIU claim in October 2013. A July 2015 supplemental SOC acknowledged the Veteran's continued appeal of the TDIU issue as well as the increased rating claim for hearing loss. Correspondence from September 2015 advised the Veteran that both issues had been certified to the Board. In view of the foregoing, the Board has accepted jurisdiction of the Veteran's TDIU claim. See Percy v. Shinseki, 23 Vet. App. 37, 44-47 (2009). In September 2016 the Veteran presented sworn testimony during a travel board hearing held at the RO, which was chaired by the undersigned. A transcript of that hearing has been associated with the claims file. The issue(s) of a rating increase for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A total rating for compensation 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. § 4.16(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. 38 C.F.R. § 3.340(a). A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Analysis The Veteran is presently service-connected for service connected for residuals of prostate cancer with radical retropubic prostatectomy at 60 percent, PTSD at 50 percent, tinnitus at 10 percent, and hearing loss at 10 percent. Erectile dysfunction associated with residuals of prostate cancer with radical retropubic prostatectomy is rated as noncompensable. His combined disability rating is 80 percent. Such was the case even when his hearing loss disability was evaluated as noncompensable. Accordingly, the tenets of 38 C.F.R. § 4.16 (a) apply. The pertinent question therefore is whether these disabilities preclude substantially gainful employment. The Veteran reported that he completed 1 year of college following his service, and worked as a plumber for nearly 40 years. The Veteran last worked in 2009, when he retired as a union plumber due to the side effects of prostate cancer. Union retirement documents reflect that, although he met the age requirements to retire, based on the Veteran's Social Security Disability award, the Veteran was Totally and Permanently Disabled for purposes of the Local 290 Pension. (See Correspondence of December 2011.) Social Security Administration (SSA) documents show the Veteran became disabled in June 2009, and was awarded disability benefits beginning in December 2009, but the primary condition for the award was vague. (See SSA documents of April 2010, dtd. August 2013). [Social Security Administration determinations, while relevant, are non-binding on the Board. Martin v. Brown, 4 Vet. App. 136, 140 (1993).] VA treatment records document the Veteran's ongoing outpatient care for PTSD since 2010. Generally, those records illustrate the Veteran's symptoms of anxiety, depressive symptoms, and a tendency to be scattered, which affected his ability to concentrate. On VA examination in June 2010, the examiner did not address the Veteran's ability to cope with everyday life or stresses of employment, however the examiner did opine that the Veteran was competent to handle his own financial affairs. A December 2011 private medical opinion of record by Dr. R.F. states that the Veteran was under his care intermittently since 1984. Dr. R.F. opined that the Veteran's service-connected disabilities and ongoing medical problems make it extremely unlikely that the Veteran would be able to obtain or maintain gainful employment. A December 2009 VA genitourinary examination, post-prostatectomy, indicated that that the Veteran will require wearing diapers or pads continuously, and if working, would need free access to a bathroom. A February 2012 VA genitourinary examination showed the Veteran required changing of absorbent material every 1 to 2 hours during the day and 3 to 4 times per night. At a February 2012 VA psychiatric examination, the Veteran reported difficulties with motivation and attention due to depression, which was attributed to his service-connected PTSD and his physical disabilities. The examiner noted that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner opined that the Veteran was not unemployable due to his service-connected PTSD, as the Veteran reported no PTSD issues while on the job. On VA psychiatric examination in May 2015, the Veteran reported that he was frequently laid off from jobs because he would get "fed up" and would frequently and impulsively quit when angry. This was attributed to the Veteran's PTSD, causing temper problems, withdrawal, and difficulty with authority. He reported that he would quickly find other employment because he was a union plumber. Incidents of irritability and rage, yelling, swearing, and throwing objects resulting in tension and distance in social connections were also reported. The examiner determined the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran's symptoms were not severe enough to preclude competitive full time employment. At the September 2016 hearing, the Veteran testified that he experienced frequent forgetfulness, sometimes going to the wrong place at the wrong time because he cannot remember his schedule. (See HT p.4). He also described difficulty in dealing with other professionals at large job sites when working as plumber, and difficulty controlling his anger. (See HT p. 7). With respect to the residuals of his prostate cancer, the Veteran indicated that due to his prostate condition, he would need access to a bathroom to change his absorbent undergarments about every hour. (See HT p. 6). It was also indicated that the regular movements of a plumber, such as reaching, lifting and bending would increase his symptoms causing increased need for bathroom access to change absorbent undergarments and potentially clothing. (See Hearing Transcript (HT) pp. 6-7). It was also discussed that plumbing work, either at a job site or in a home setting, by nature, often involves a lack of access to adequate plumbing or bathroom facilities where the Veteran might have to excuse himself from the site in order to use a restroom. (See HT pp. 6-8). As stated, a finding for TDIU is a legal determination to be decided by VA based on the evidence of record. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In that regard, based on the evidence of record, to include the Veteran's limited education and long history of working as manual laborer, and in spite of the negative VA examinations, the Board finds that the overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. The Veteran is limited physically and mentally. Entitlement to a TDIU is warranted. ORDER Entitlement to a TDIU is granted, subject to the regulations governing the payment of monetary awards. REMAND The Veteran was most recently afforded a VA examination for his service-connected bilateral hearing loss in May 2015. That examination indicated a worsening of the Veteran's hearing loss and subsequently, the RO increased the Veteran's disability rating to 10 percent effective May 27, 2015. At the September 2016 hearing, the Veteran indicated that his hearing loss had worsened since his most recent VA examination of May 2015. (See HT pp. 9-10). The Veteran's wife also stated that his hearing was noticeably and exponentially worse. (See HT p. 9). Specifically, the Veteran stated he has a difficult time discerning consonant sounds and holding a conversation if there are background noises. (See HT p. 9). He also noted that he has hearing aids but they do not help much. (See HT p. 9). Therefore, the Board finds that an additional examination is necessary to adjudicate the claims. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding private and VA treatment medical records and associate them with the claims file. 2. Schedule the Veteran for a new VA examination, to determine the current severity of his service-connected bilateral hearing loss. Upon examination, any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examination report must fully describe the functional impairment and effects caused by the hearing disability. The claims folder must be made available to the examiner in conjunction with the examination. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner must include a detailed supportive rationale and explanation of any clinical findings and/or opinion presented. If the examiner(s) is/are unable to present an opinion and/or discussion without resorting to speculation, it should be so stated with a complete rationale as to why the examiner(s) arrived at this conclusion. 3. Following completion of the aforementioned development, and any other development deemed necessary, readjudicate the claim. If the Veteran's claim remains denied, issue a supplemental statement of the case, allow the appropriate time for response, and return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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 A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs