Citation Nr: 1807491 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-21 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for bilateral hearing loss. 3. Entitlement to service-connection for a left hip condition to include as due to exposure to herbicide agents. 4. Entitlement to service-connection for a left knee condition to include as due to exposure to herbicide agents. 5. Entitlement to service-connection for a right knee condition to include as due to exposure to herbicide agents. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION The Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1960 to April 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran presented sworn testimony at a hearing before the undersigned in October 2017. A transcript of that hearing is of record. In June 2014, the Veteran raised the issue of whether he was unemployable due to his service-connected disabilities. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to an initial rating in excess of 70 percent for PTSD, and entitlement to a compensable rating for hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At his October 2017 hearing before the Board, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for a bilateral knee and left hip condition. 2. Throughout the appeal period, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to various symptoms. 3. The Veteran's service-connected disabilities have rendered him unable to maintain substantially gainful employment during the appeal period CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issues of entitlement to service-connection for a bilateral knee and left hip condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. WITHDRAWN CLAIMS The Board does not have jurisdiction to review the claims of entitlement to service-connection for a left hip and bilateral knee conditions because the Veteran withdrew the claims prior to the issuance of this decision. An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The Veteran affirmed his representative's statement that it was the Veteran's intention to withdraw the claims of service-connection for a bilateral knee and left hip conditions at his October 2017 Board hearing. Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed. II. POSTTRAUMATIC STRESS DISORDER (PTSD) RATING After considering the frequency, severity, and duration of the Veteran's impairment, the Board finds that the preponderance of evidence demonstrates that disability due to the Veteran's PTSD approximates the schedular criteria for an initial rating of at least 70 percent. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. Pursuant to 38 C.F.R. § 4.130 relating to rating mental disorders, a 70 rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 work-like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The record shows that the Veteran is significantly withdrawn from social interactions, including those with his wife. The Veteran's relationships are further strained by problems with anger and irritability. The Veteran has also indicated that he suffers from significant anxiety and apprehension, resulting in ritualistic and repetitive security measures both inside, and outside his home. Additionally, the Veteran has indicated that he experiences suicidal ideation. The Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports an initial 70 percent disability rating for the Veteran's PTSD. III. TOTAL DISABILITY RATING BASED ON INDIVIDUAL UNEMPLOYABILITY The Board finds that the Veteran's service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment during the appeal period. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Board notes that the United States Court of Appeals for the Federal Circuit held that determining whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this decision, the Board awards a 70 percent rating for PTSD throughout the appeal period; thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). With respect to occupational and educational history, the Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) reflects that he spent most of his career employed as a painter and has completed four years of high school. The Veteran's application also shows that he has been unemployed for the entire period on appeal. Considering this occupational and educational history along with impact of the Veteran's service-connected disabilities, such as problems with irritability, anxiety, and social interaction discussed above, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In sum, entitlement to a TDIU is warranted. ORDER The appeal of the issues of entitlement to service-connection for bilateral knee and left hip conditions is dismissed. Subject to the law and regulations governing payment of monetary benefits, an initial rating of at least 70 percent for PTSD is granted. Subject to the law and regulations governing payment of monetary benefits, an award of a TDIU is warranted. REMAND The Board must remand the issues of entitlement to a compensable hearing loss rating, and to a PTSD rating in excess of 70 percent as the Veteran has indicated his disability has worsened since the most recent examination. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). At his October 2017 hearing, the Veteran testified that his PTSD and hearing loss disabilities had worsened since his February and March 2014 VA Medical Examinations. Hr'g. Tr. at 3. The Veteran has seen VA providers for both disabilities since the hearing. Unfortunately, the medical records do not contain all of the information needed to consider the current impact of the Veteran's hearing loss, or whether a 100 percent rating for PTSD is appropriate. As the Veteran has indicated that his disabilities have worsened since his most recent examinations, a remand is necessary to ascertain the current severity and occupational impact of the Veteran's PTSD and hearing loss. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding medical records. 2. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity, frequency, and duration of his PTSD and hearing loss symptoms. Provide him a reasonable period of time to submit this evidence. 3. Schedule the Veteran for appropriate VA examinations to ascertain the current severity and occupational impact of the Veteran's service-connected PTSD and bilateral hearing loss. The examiner must review the entire claims file, and the examination report must include a complete rationale for all opinions expressed. 4. Finally, readjudicate the appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The appellant 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs