Citation Nr: 18150250 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-33 710 DATE: November 14, 2018 ORDER Service connection for tinnitus is granted. An initial rating of 70 percent for post-traumatic stress disorder (PTSD) is granted from April 30, 2012 (contingent upon the reevaluation of the rating assigned for the Veteran’s service-connected traumatic brain injury (TBI) residuals). REMAND The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus began in service and has continued at least intermittently to the present time. 2. Throughout the entirety of the appeal period, the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas. Symptoms of total occupational and social impairment have not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for an initial rating of 70 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2000 to January 2001 and from January 2005 to November 2005. The matter is before the Board of Veterans’ Appeals (Board) on appeal from July 2013 and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The July 2013 rating decision denied service connection for tinnitus. The April 2015 rating decision granted service connection for PTSD an assigned an initial evaluation of 30 percent effective April 30, 2012. The Veteran’s Contentions The Veteran contends that he has experienced tinnitus since service as a result of being within 20 feet of an explosion and being exposed to gunfire while serving in Iraq. The Veteran also contends that he is entitled to a higher initial rating for PTSD because he lost his job, is unable to find employment and continues to have anxiety, depression and a limited ability to interact with others. Service connection for tinnitus Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Additionally, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). Tinnitus is classified as an organic disease of the nervous system. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Here, the service treatment records are silent for complaints, treatment or diagnosis of tinnitus. A post-deployment assessment completed in December 2005 reflects that the Veteran was exposed to loud noises during his deployment, but he denied ringing in the ears. The Veteran underwent a December 2012 VA examination for tinnitus. The examiner concluded that the Veteran’s tinnitus was as least as likely as not caused by military noise exposure because of his history of being exposed to gun fire and explosions while in Iraq. The Veteran also underwent a VA examination for tinnitus in December 2014. That examiner concluded that the Veteran’s tinnitus was less likely than not caused by military noise exposure because the service treatment records were negative for complaints or treatment of tinnitus and the Veteran denied tinnitus in the December 2005 post-deployment assessment. The Veteran is competent to report his symptoms of tinnitus. Thus, the first element of service connection is satisfied. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). With respect to the second element, there is no dispute that the Veteran was exposed to excessive levels of noise while on active service in Iraq. This exposure included gunfire and being within 20 feet of an explosion that caused the Veteran to become disoriented. While there is conflicting evidence as to the nexus element of the Veteran’s tinnitus, the Board finds that the December 2012 VA examination is entitled to more weight. The December 2014 examiner placed great weight on the lack of contemporaneous complaints of tinnitus while in service, but failed to address whether the Veteran’s proximity to an explosion and his exposure to gunfire could have caused his current complaints of tinnitus. The Board therefore finds that the December 2014 examination is entitled to less weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also finds that the evidence is at least in equipoise on the nexus issue and, therefore, the Veteran is entitled to the benefit of the doubt. Accordingly, service connection for tinnitus is granted. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Entitlement to an increased initial rating for PTSD The Veteran contends that his service-connected PTSD warrants a disability rating higher than the 30 percent rating currently assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411. After reviewing the evidence, the Board finds that a rating in excess of 30 percent is warranted. Generally, disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Here, the Veteran’s PTSD was initially rated as 30 percent effective April 30, 2012. The relevant rating criteria are set forth below. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for 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. A 70 percent rating is assigned 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. A 100 percent rating is assigned 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 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). After review of the evidence of record, the Board finds that the Veteran’s PTSD symptoms more closely approximate a 70 percent disability rating. Specifically, the evidence demonstrates social and occupational impairment with deficiencies in mood, family relations, and work. Turning to the evidence, the Veteran sought counseling in May 2012 because of his worsening anger and frustration over a three-year period. The Veteran reported road rage and isolation, the inability to manage his anger and concern that his problems were affecting his work as a police officer. The Veteran also indicated that he experienced nightmares, anxiety and worsening memory loss. The therapist who treated the Veteran starting in May 2012 described his symptoms as including irritability, frustration, anger, flattened affect, loss of confidence, impaired concentration, anxiety, recurring panic attacks, exaggerated startle response, isolationism and sleep problems that all dated back to his service in SW Asia. The therapist also described the Veteran as being hyper-vigilant in public settings. The treatment records through January 2013 are significant for repeated complaints of sleep disturbances, lack of energy, and irritability. According to the therapist, the Veteran had “moderate to severe social and occupational impairment.” The Veteran’s significant other submitted a statement received in November 2012 that described their relationship, which began in October 2010. The statement described the Veteran as being easily irritated, with an urge for violence. The Veteran was also described as being forgetful, unwilling to leave the house and nervous in crowded areas. The Veteran’s significant other also described the Veteran as having restless sleep and always being tired during the day. The Veteran’s sister also submitted a statement that was received in November 2012. According to the Veteran’s sister, their previously close relationship had deteriorated because the Veteran distanced himself from friends and family and withdrew from social interactions. The sister stated that she witnessed many instances when the Veteran would become angry and unable to control his actions and described him as being nervous and anxious in public. The Veteran’s sister also described the Veteran’s memory problems and inability to remember simple things. According to the Veteran’s sister, his negativity, social isolation, anger, lack of relationships with others and memory problems were all in stark contrast to the type of person the Veteran was prior to his deployment. The record also reflects that the Veteran was placed on light duty as a police officer in July 2012 because of his PTSD symptoms. A December 2014 VA examination noted occupational and social impairment with reduced reliability and productivity but noted that it was not possible to differentiate between PTSD and the Veteran’s TBI as the cause of the impairment. The Veteran was described as continuing to experience chronic symptoms of intrusive memories, avoidance, hyperarousal and depression. The symptoms were also described as interfering with his job. A forensic report issued by the Veteran’s employer in January 2015 recommended that the Veteran not be allowed to continue to work as a police officer because of “substantial concern” about his emotional functioning and the possible exacerbation of PTSD symptoms with exposure to the additional stress of police work. A December 2016 VA examination summarized the Veteran as having occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though generally functioning satisfactorily with normal routine behavior, self-care and conversation. The examiner again noted that it was not possible to differentiate the cause of the level of occupational and social impairment between the PTSD and TBI diagnoses. The Veteran was noted to have depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing effective work and social relationships and difficulty in adapting to stressful circumstances, including work. At the time of the VA examination, the Veteran had been forced to resign from the police department because of his PTSD symptoms. The Veteran reported that he had worked at a gym for less than a month, but could not tolerate the interpersonal stress. The Veteran also reported that he worked building fences and decks and that he was having arguments in that work that did not rise to the level of shouting matches. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran’s PTSD have more nearly approximated the criteria for a 70 percent rating, but not higher. Throughout the period on appeal, the Veteran’s PTSD symptoms were manifested primarily by ongoing symptoms of anxiety, depression, nightmares, chronic sleep impairment, memory problems, irritability, difficulty in maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. The record evidence is significant for PTSD symptoms that affected the Veteran’s occupation and family relationships. The evidence also reflects ongoing deficiencies in the Veteran’s thinking, motivation and mood. Accordingly, the Board finds that the Veteran’s symptomatology throughout the appeal period has been consistent with the criteria for a 70 percent rating. Although the evidence does not show symptomatology such as obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure or irrelevant, or near continuous panic attacks affecting the ability to function independently, appropriately and effectively, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan, 16 Vet. App. at 442-43. The Board also finds that the evidence does not support a 100 percent rating. The Veteran has not exhibited symptoms such as gross impairment in thought process or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living or disorientation as to time or place, or other symptoms of similar severity, frequency, or duration. Total social impairment has not been demonstrated and the Veteran has not indicated, and the evidence does not otherwise demonstrate, that he is a persistent danger to himself or others. In sum, the record does not show that the Veteran has symptoms that have resulted in total occupational and social impairment and, accordingly, the criteria for 100 percent schedular disability rating are not met. Finally, as noted, the increased initial disability rating of 70 percent is contingent upon re-rating of the Veteran’s TBI by the RO in order to avoid pyramiding of benefits. In this regard, the Board acknowledges that the Veteran’s service-connected TBI residuals are currently evaluated as 40 percent disabling based on memory loss, and that multiple VA examiners have determined that the symptoms attributable to PTSD cannot be distinguished from those attributable to the TBI residuals. His service-connected TBI residuals otherwise include headaches, which currently do not form the basis for the disability rating assigned for the TBI. As the increased 70 percent rating for PTSD is more favorable to the Veteran than the currently assigned 40 percent rating for the TBI, the Board finds that the disability rating assigned for the TBI residuals should be reevaluated based on other factors which can be distinguished from PTSD, including headaches. In so doing, VA may maximize the benefits to which the Veteran is entitled, as is required by law. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). TDIU Where, as here, the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 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 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. §§ 3.340, 3.341, 4.16(a). 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). The Board’s decision grants an increased initial rating to 70 percent for the Veteran’s PTSD. Accordingly, the Veteran meets the schedular criteria for TDIU per 38 C.F.R. §4.16(a). Given the Veteran’s loss of his employment as a police officer because of his PTSD symptoms, and his report in the December 2016 VA examination that he quit working at a gym after less than a month because of interpersonal stress, could not find other employment and was working building fences and decks, the TDIU issue should be developed and adjudicated by the Agency of Original Jurisdiction (AOJ), to include providing the Veteran with a formal TDIU application form (VA Form 21-8940). Accordingly, a remand of the TDIU issue is warranted. The case is REMANDED for the following actions: 1. Obtain updated VA treatment records. 2. Request that the Veteran submit a VA Form 21-8940. 3. Thereafter, complete any other indicated development. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the 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. §§ 5109B, 7112. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel