Citation Nr: 18151262 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 12-29 022 DATE: November 16, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for a left foot disability is granted. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran does not have hearing loss for VA purposes in either ear. 2. The Veteran’s diagnosed callus of the left foot is likely related to his active duty military service. 3. The Veteran’s PTSD is not manifested by total occupational and social impairment, due to such symptoms as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, inability to perform activities of daily living, disorientation to time and place, and memory loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for service connection for callus of the left foot have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1975 to September 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2012 and January 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul Minnesota. The Veteran presented sworn testimony at a hearing before the undersigned in November 2015. In April 2016, the Board granted service connection for PTSD and remanded the issues of entitlement to service connection for a left foot disability and entitlement to service connection for bilateral hearing loss for VA examinations. In November 2017, the Board again remanded the issues of entitlement to service connection for hearing loss and entitlement to service connection for a left foot disability, in order for the AOJ to reschedule the Veteran for VA examinations. Additionally, the Veteran asserted that his PTSD had increased in severity since his July 2015 VA examination and the claim was remanded to obtain VA vocational rehabilitation records. Finally, in March 2017, the Veteran raised the issue of whether he was unemployable due to his service-connected PTSD. The Board took jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the PTSD claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the issue was inextricably intertwined with the issues on appeal, it was remanded as well. 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that service connection is warranted for bilateral hearing loss due to acoustic trauma in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from 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). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In November 2017 the Board remanded the issue of entitlement to service connection for bilateral hearing loss to determine if the Veteran has a current bilateral hearing loss disability for VA compensation purposes. The Veteran was provided a VA examination in March 2018. The March 2018 examination shows the Veteran does not have a diagnosis of hearing loss for VA compensation purposes. Further, the Board notes that the December 2012 VA examination revealed the Veteran did not have a current diagnosis of bilateral hearing loss for VA compensation purposes. However, the examiner opined that the Veteran had a hearing impairment that was at least as likely as not caused by military noise exposure. While the Veteran is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability, because such a determination requires specific audiometric findings. Jandreu v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, notwithstanding his assertion that he has bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current bilateral hearing loss disability for VA purposes and the claim must be denied on the basis that the Veteran does not have a current disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have a current bilateral hearing loss disability, service connection for bilateral hearing loss cannot be granted. 2. Entitlement to service connection for a left foot disability The Veteran contends that he is entitled to service connection for a left foot disability that began in service. Specifically, he competently and credibly testified that he developed a callus on his left foot from marching and walking in boots during service. See November 2015 Hr’g Transcript at 8. Pursuant to the November 2017 remand, the Veteran was provided a VA examination in March 2018 to determine that nature and etiology of the Veteran’s current left foot disability. The March 2018 examiner noted diagnoses of degenerative arthritis and porokeratosis. Additionally, the examiner noted the October 2014 VA treatment records indicating left foot callus and 1MTPJ and degenerative joint disease. The Veteran indicated he could not remember the onset of the conditions but they have always been there. The Veteran’s treatment notes show a diagnosis of a left foot callus that he keeps getting trimmed but keeps returning and causing more pain. See April 2012 Patient Report of Contact; see also November 2012 Podiatry Consultation Note. The Veteran stated that the callus is behind his 4th toe on his left foot and causes him to alter his gait when it is bad. He rates the pain as 5 out of 10, at times. See August 2012 Patient Contact Note. The March 2018 VA examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran’s left foot problems began and were diagnosed after service. The examiner did not offer an opinion regarding the Veteran’s callus of the left foot. At the November 2015 Board hearing, the Veterans competently testified that he developed the callus on his left foot during service and it has been recurrent since that time. The Board finds the Veteran credible with regard to his claim that he has experienced a callus of the left foot since active duty service. Resolving all doubt in favor of the Veteran, the Board finds that service connection for callus of the left foot is warranted. 3. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) An April 2016 Board decision granted the Veteran service connection for PTSD. In April 2016, the RO assigned an initial disability rating of 70 percent for the Veteran’s PTSD. In February 2018, the Veteran made an inquiry to VA stating his PTSD symptoms had worsened. Consequently, a VA examination was requested and a VA examination was accomplished in May 2018. Diagnostic Code 9411 provides that PTSD is evaluated under the general rating formula used to rate psychiatric disabilities other than eating disorders, pursuant to 38 C.F.R. § 4.130. A 70 percent rating is warranted where there is 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 warranted where there is 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. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation 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 (2002). The Veteran contends that he is entitled to a rating in excess of 70 percent for his service-connected PTSD. The Veteran was afforded a VA examination in May 2018. The examiner summarized the Veteran’s PTSD as causing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Examiner indicated the Veteran’s PTSD was largely in remission. See May 2018 PTSD Examination. The examiner noted that the Veteran was adequately groomed in casual dress. He appeared to be alert and well oriented. His affect was stable and relaxed. His thought and speech were logical and coherent. The Veteran described his typical mood as “I’m glad to be alive…don’t have a lot of energy… not pissed off or anything…super cautious.” The Veteran denies prolonged periods of depressed mood, or suicidal ideation. There are no significant changes in his weight/appetite. His self-esteem is low. Veteran states he gets nervous in crowds, but does not report recurrent panic attacks. The examiner indicates the Veteran alluded to problems managing his anger by using the example of yelling at his wife. The Veteran did not report physical aggression. His sleep quality was reported as “great” with medication. He reported he gets approximately six hours of sleep on average. The examiner described the Veteran’s memory and concentration as “not too bad”. The examiner found the Veteran to be cooperative in relating to him. The July 2015 VA examiner summarized the Veteran’s level of impairment as occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The Veteran indicated he is divorced and living alone in an apartment. He reported he had a “very good” relationship with his adult son. He stated he is estranged from his family of origin, because of issues with his step-father, so he doesn’t communicate with his mother much. He had no close friends because that all moved away and can’t really trust most of them. The examiner noted that the Veteran was adequately groomed, alert and well oriented. The Veteran was logical and coherent in thought and speech processes. He endorsed feelings of hopelessness all the time. He reported that his memory and concentration are not very good. He reported “anxiety attacks but did not describe them as recurrent panic attacks. He was able to perform serial 7s and was able to spell “world” forwards and backwards and able to interpret a common proverb. He was cooperative relating to the examiner. The Veteran’s treatment records reflect suicide attempt in June 2015 and October 2015. The Veteran denied these were true suicide attempts but notes from ED he admitted he had wanted to kill himself. He reported no suicidal ideation since that time. See May 2016 Treatment Plan. The Veteran’s service treatment records reflect multiple psychiatric diagnoses, previous suicide attempts, history of mental disorders, history of alcohol abuse, feelings of hopelessness, impulsive or aggressive tendencies, isolation, a feeling of being cut off from other people, and chronic no-show for appointments or provider visits. See September 2016 Social Worker Addendum Note. The Board finds that the Veteran’s symptoms do not reflect total occupational and social impairment, even with consideration of some symptomatology thereof, because those symptoms are not shown to be of such severity as would more nearly approximate a 100 percent rating. Id. In light of the foregoing, the Board finds that the Veteran’s symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula. 4. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability In March 2017, the Veteran raised the issue of whether he was unemployable due to his service-connected PTSD. In November 2017, the Board took jurisdiction of the issue of entitlement to a TDIU as it was part and parcel of his PTSD claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU may be assigned where the schedular rating is less than total if a Veteran 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 disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran’s service-connected disabilities satisfy the criteria set forth in 38 C.F.R. § 4.16(a). The Veteran’s submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability in June 2018. The Board notes that the record reflects the Veteran is currently unemployed, and has not worked for a period of years. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. The May 2018 VA examiner noted the Veteran was unemployed at the time of his last examination in July 2015. The Veteran reported that had problems following guidance by authority figures. The May 2018 examiner summarized the Veteran’s symptoms as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The May 2018 VA examination reflects an improvement in the Veteran’s PTSD symptoms. The Board does not dispute that the Veteran experiences some occupational impairment due to his PTSD. However, the objective evidence does not support a finding that he is unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD. The Veteran is an IT consultant, with the ability to work on-line technical jobs. He has three years of college education. The Veteran’s October 2017 Mental Health Outpatient Notes reflect the Veteran was excited to show the examiner his new residence and reported only one “slip-up” immediately after getting back in the Twin Cities but had not used since. The Veteran has been diagnosed and service-connected for PTSD, which the May 2018 stated was largely in remission; and is diagnosed, but not service-connected for polysubstance use disorder. The Veteran reported that he wanted to find some meaningful activities to engage in and stated groups would possibly be a good option for him. The Veteran reported obtaining a gym membership and desiring to go there regularly. He indicated he had been a gym rat when he was younger and wanted to get back into it. The examiner assessed the Veteran’s mood as having improved since his move and that he was trying to find meaningful to engage in now that he has housing. The May 2017 social worker indicated the Veteran had supportive family systems, is future oriented, and has a willingness to change past behaviors, Additionally, the Veteran indicated a willingness to contact resources to further change. The social worker noted the Veteran had positive coping strategies. Considering only his service-connected PTSD, and in light of his individual employment and educational background, the Board finds that the preponderance of the evidence shows that the Veteran is not incapable of obtaining and maintaining substantially gainful employment due to his service-connected psychiatric disability. Thus, the Board finds that the benefit sought on appeal must be denied. REASONS FOR REMAND The Veteran asserts that he has not been able to secure or follow a substantially gainful employment as a result of his PTSD and tinnitus. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran currently meets the schedular criteria for entitlement for a TDIU rating. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for PTSD, rated at 70 percent and tinnitus, rated at 10 percent. As noted, in this decision, the Board granted the Veteran service connection for a left foot disability. The claim for a TDIU must also be remanded pending the assignment of a rating for the Veteran’s service-connected left foot disability. In May 2018, the Veteran’s staff physician submitted correspondence indicating the Veteran last worked in 2010 and has had chronic difficulty holding down employment. Since 2010, he has applied for several jobs but has not been selected for the jobs. He opined that part of the reason he has trouble maintaining employment is due to anger management problems, which the Veteran attributes to PTSD. However, the examiner noted the Veteran has several mental health diagnoses. In May 2018 the Veteran was provided a VA examination with regard to his PTSD. That VA examination reflected an improvement in the Veteran’s overall symptomatology. Further, the VA examiner indicated the Veteran’s PTSD is in remission. Currently, the Board has granted the Veteran service connection for a left foot disability, diagnosed as left foot callus. The March 2018 VA examiner indicated the Veteran’s left foot condition is severe and described the functional impact of his condition on his ability to work as, “cannot do work requiring standing for over 5 to 10 minutes at a time. Same for Walking.” In June 2018, the Veteran submitted a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) indicating that his service-connected PTSD prevents him from securing or following a substantially gainful employment. In this case, it is unclear as whether the Veteran’s service-connected disabilities, alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation, considering his specific educational and work experience background. 1. Contact the Veteran and request that he identify any and all outstanding relevant VA and private treatment records. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with the claims file. Any negative responses should be in writing and associated with the claims file 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to obtain and retain employment. The Veteran should be provided an appropriate amount of time to submit this lay evidence. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel