Citation Nr: 18153123 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-53 720A DATE: November 27, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to an increased evaluation of posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the period on appeal, a hearing loss disability. 2. Resolving all doubt in the Veteran’s favor, tinnitus was incurred as a result of service. 3. The preponderance of the evidence weighs in favor of a finding that the Veteran’s service-connected PTSD does not cause, and is not best characterized by a level of severity consistent with, occupational and social impairment with deficiencies in most areas nor total occupational and social impairment. 4. The preponderance of the evidence weighs against a finding that the veteran’s PTSD and tinnitus preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for an evaluation in excess of 50 percent disabling for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.126a, 4.130, Diagnostic Code (DC) 9411. 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to May 1971. The Board of Veterans’ Appeals (Board) notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability. Id. During the pendency of his appeal for an increased rating for his service-connected PTSD, the Veteran raised the matter of unemployability by way of an August 2016 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran has already received notification on this claim, in a September 2016 letter, and it has been adjudicated by the Regional Office in a November 2016 rating decision and a March 2018 Statement of the Case. The TDIU claim has thus been recognized as part and parcel of that increased rating appeal and is thus before the Board, as reflected above, on the title page of this decision, and below. Service Connection 1. Entitlement to service connection for bilateral hearing loss 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to establish service connection for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010). For these purposes, 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 this case, the Veteran claims entitlement to service connection for hearing loss and tinnitus. However, the Board notes at the outset that establishing hearing loss for purposes of a claim for service connection requires certain qualifications, including a certain level of medical education, training, and/or experience, and the ability to perform complicated medical testing or at least to interpret the results thereof. Neither the Veteran nor his representative have shown that they possess any such qualifications. Therefore, neither of them are competent to opine on whether the Veteran has a hearing loss disability for purposes of his claim of entitlement to service connection for hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). A review of the Veteran’s service treatment records (STRs) reveals that he did not have a hearing loss disability, for purposes of service connection, during his enlistment and separation examinations. See 38 C.F.R. § 3.385. Furthermore, his STRs do not show that he made any complaints of hearing loss or tinnitus during his active military service. The Veteran was afforded a VA examination in November 2013, and although the examiner indicated that the Veteran did have some hearing loss at that time, the Veteran’s puretone threshold test results indicated that he still did not have a hearing loss disability as to either ear, for purposes of service connection. See id.; Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) dated in November 2013; Addendum dated in December 2013. There is no competent evidence in the claims file indicating otherwise. Thus, after review of the Veteran’s claims file, the Board finds that the preponderance of the evidence of record weighs against a finding that the Veteran has had a hearing loss disability during the period on appeal. Accordingly, the Veteran’s appeal as to his claim of entitlement to service connection for hearing loss is denied. 2. Entitlement to service connection for tinnitus In this case, the Veteran has related his tinnitus back to service, and his DD Form 214 confirms that he had a military occupational specialty (MOS) of heavy vehicle driver. The Board would point out that a Veteran is competent to self-diagnose tinnitus, and his contentions as to tinnitus specifically are considered competent evidence. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran’s November 2013 VA examination report confirms a diagnosis of tinnitus. The examiner stated that the tinnitus was of “unknown onset time.” The examiner further noted that the Veteran had a diagnosis of clinical hearing loss, and he had tinnitus that was at least as likely as not (a 50 percent or greater probability) associated with the hearing loss. In a December 2013 addendum, the examiner added that it was less likely than not that the current tinnitus was due to military noise exposure and that most likely the tinnitus was due to noise exposure from post-service employment at a textile mill and tire plant. In this case, the Veteran has related tinnitus back to service, had an MOS of heavy vehicle driver, and has given the Board no reason to believe that he is not credible. The VA examiner found the tinnitus less likely than not related to service and more likely related to post-service occupational noise exposure, but this examiner also did not discuss the Veteran’s lay contentions or MOS. As indicated above, a veteran is competent to provide probative evidence as to tinnitus, per Charles. Accordingly, the Board finds it at least as likely as not that tinnitus is related to service, and the claim is granted. 3. Entitlement to an increased evaluation of posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran’s PTSD is currently rated as 50 percent disabling under diagnostic code (DC) 9411 and the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted 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-term 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. Id. A 70 percent rating is warranted 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 affection 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. The maximum 100 percent rating is warranted 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 person hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board finds that the most pertinent evidence related to this claim consists of the Veteran’s and his representative’s statements, a statement received from his friend, his VA treatment records and the report of a September 2016 VA examination. The Veteran claims that the symptomatology of his PTSD more closely approximates the criteria for a 70 percent disability evaluation than that of a 50 percent disability evaluation. He claims, more specifically, that his symptomatology is characterized by, among other things, irritable behavior and angry outbursts, impaired impulse control, difficulty adapting to stressful circumstances, near continuous panic or depression, nightmares, anxiety, suspiciousness, mild memory loss, impaired concentration, chronic sleep impairment and social isolation. See, e.g., Veteran’s Sworn Affidavit received in September 2016; Brief in Support of Form 9 Appeal of September 15, 2016 Statement of the Case (Brief in Support of Form 9) received in November 2016. A friend of the Veteran authored an affidavit in which she stated that the Veteran is overly irritable, irrational, angry, and paranoid; that he does not like to leave his home; that he has nightmares and difficulty sleeping; and that he has told her that sees and hears things, such as his deceased mother and brother talking to him, when he is awake. See Sworn Affidavit received in September 2016. The Veteran’s VA treatment records reflect that, during the period on appeal, he has complained of intrusive thoughts, nightmares, and impaired sleep; that VA physicians have noted that he has been isolating himself; and that upon screening by a VA psychologist in December 2014, it was determined that the results of that screening were consistent with severe depression and anxiety. His VA treatment records also reflect that he began isolating himself after he retired and after he and his wife separated, and that he has a limited level of engagement in pleasant/rewarding activities and uses alcohol to cope with stress. The records reflect that a VA psychologist noted that those factors “likely contributed to depressive symptoms and anxiety.” The Veteran’s Readjustment Counseling Service (RCS) records also reflect that as of December 2014, the Veteran had not experienced difficulty concentrating, learning, or recalling information or any significant impairment in social or occupational functioning. The Veteran was afforded a VA examination for his PTSD in September 2016, and, after a review of the Veteran’s claims file and an in-person examination of the Veteran, the examiner opined that the Veteran’s level of PTSD-related occupational and social impairment was best summarized as occupational and social impairment with reduced reliability and productivity. The examiner noted and thus clearly contemplated the fact that the Veteran had the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See Review PTSD DBQ dated in September 2016. The Board finds after review of the evidence of record, including but not limited to that discussed above, that the preponderance of the evidence weighs in favor of a finding that the Veteran’s service-connected PTSD does not cause, and is not best characterized by a level of severity consistent with, occupational and social impairment with deficiencies in most areas – let alone total occupational and social impairment. The Board notes that it finds the VA examiner’s opinion to be worthy of greater probative value than the Veteran’s statements and that of his friend with regard to the level of severity of his PTSD. This examination was conducted by a mental health professional who reviewed the claims file and, unlike the Veteran and his friend, possesses the training and credentials to render probative assessments as to the presence and severity of mental health symptoms. Indeed, the competent evidence of record, including outpatient treatment records also authored by trained and credentialed professionals, reflect a degree of symptomatology that is significant but also entirely consistent with, and contemplated by, the criteria for a 50 percent evaluation. In short, the Board finds that the preponderance of the evidence weighs against this claim for entitlement to an increased evaluation. Accordingly, this claim is denied. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these rating requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation and Pension Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). During the entire period on appeal, the Veteran has been service connected for PTSD, with a disability rating of 50 percent, which does not meet the criteria for schedular consideration for TDIU under 38 C.F.R. § 4.16(a). The Veteran has also been granted service connection for tinnitus per this decision, and while this disability has not been assigned a disability evaluation yet, the applicable criteria allow a maximum evaluation of only 10 percent, not enough to warrant schedular consideration for TDIU in combination with the PTSD rating even if assigned. However, as indicated above, he may still be entitled to referral for consideration of an extraschedular grant of TDIU if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of his service- disabilities. 38 C.F.R. § 4.16(b). Here, the most pertinent evidence consists of that mentioned above in the discussion of the Veteran’s entitlement to an increased evaluation of his PTSD. As indicated above, the Veteran’s impairment as due to PTSD is significant but has never been characterized as rising to the degree to which substantially gainful employment would be precluded. Furthermore, the Veteran’s outpatient treatment records and the September 2016 VA examination report reflect that he retired from work in 2014, and those records do not demonstrate that his retirement had anything to do with his PTSD. See, e.g., RCS records received in September 2016; Review PTSD DBQ dated in September 2016. The Veteran did, however, report on his September 2016 VA Form 21-8940, Application for Increased Compensation Based on Unemployability that he retired because of his PTSD, but there is no indication that he was precluded from substantially gainful employment on account of his PTSD. This is a medical determination, for which the Veteran lacks the requisite training and credentials. Jandreau, supra. On the Form 21-8940, the Veteran also indicated that as of August 2016, he had not tried to obtain employment since retiring in 2010. Thus, there is no evidence in the claims file that the Veteran has ever been terminated from or denied employment due to his PTSD or his symptoms thereof. The Board would also note that, in the November 2013 VA audiological examination report, the examiner found that the Veteran’s tinnitus did not impact ordinary conditions of daily life, including the ability to work. Considering the above-referenced evidence and the other evidence in the claims file, the Board finds that the preponderance of the evidence weighs against finding that the Veteran’s PTSD and tinnitus do not cause total occupational and social impairment. Accordingly, the Board finds that referral of the Veteran’s claim of entitlement to TDIU for extraschedular consideration is not warranted. Overall, the preponderance of the evidence is against the Veteran’s claim, and the claim must be denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banks, Associate Counsel