Citation Nr: 1805760	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  13-34 785	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an initial rating in excess of 30 percent for service connected post-traumatic stress disorder. 

2. Entitlement to an increased rating for bilateral hearing loss. 

3. Entitlement to an increased rating for tinnitus. 

4. Entitlement to a total disability rating due to unemployability based on service connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Ralph Bratch, Esq. 




ATTORNEY FOR THE BOARD

A. Price, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from November 1965 to November 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Veteran was scheduled for a videoconference hearing in June 2017, before a Veterans Law Judge; however, he failed to show.  The hearing request is deemed withdrawn because he failed to report for this hearing, and no request for postponement has been received.  See 38 C.F.R. § 20.704 (2017). 


FINDINGS OF FACT

1. From February 23, 2013, the Veteran's PTSD was manifested by symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; all resulting in occupational and social impairment with reduced reliability and productivity.

2. From April 18, 2013, the Veteran's PTSD was manifested by symptoms such as nightmares, panic attacks, depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and neglect of personal appearance and hygiene; all resulting in occupational and social impairment, with deficiencies in most areas; however, total occupational and social impairment has not been shown.

3. For the entire timeframe on appeal, the Veteran's bilateral hearing loss has been manifested by hearing acuity no worse than Level II in his right ear and Level III in his left ear. 

4. The Veteran's service-connected tinnitus is rated at 10 percent, the maximum rating authorized under Diagnostic Code 6260.

5. With full consideration of the Veteran's educational and occupational background, the evidence of record supports a finding that his service-connected disabilities combine to render him unable to secure and follow substantially gainful employment.


CONCLUSIONS OF LAW

1. The criteria for a rating of 50 percent from February 23, 2013 and 70 percent from April 18, 2013 for PTSD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017).

2. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.327, 3.383, 3.400, 4.1, 4.2, 4.3, 4.7, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017).

3. There is no legal basis for the assignment of a schedular evaluation for tinnitus in excess of 10 percent.  38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017).

4. The criteria for TDIU have been met.  38 U.S.C. §§ 5110(a), 5107(b) (2012); 38 C.F.R. §§ 3.400, 4.16 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II. Increased Ratings 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a Veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

PTSD

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 adjustments during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination.  The rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126. 

The Veteran's PTSD has been evaluated using Diagnostic Code 9411 of 38 C.F.R. § 4.130, which sets forth criteria for evaluating post-traumatic stress disorder using a general rating formula for mental disorders.  Pertinent portions of the general rating formula for mental disorders are as follows:

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......................50 percent

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 work-like setting); inability to establish and maintain effective relationships..............................70 percent

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...........100 percent

The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013).  The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating."  Id. at 117.

Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders.)  Id. 

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score.  The Board notes that 38 C.F.R. § 4.130 has been revised to refer to the recently released DSM-5, which does not contain information regarding GAF scores.  However, since much of the relevant evidence was obtained during the time period that the DSM-IV was in effect, the Board will still consider this information as relevant to this appeal.  Furthermore, there is no indication that the Veteran's diagnosis would be different under the DSM-5.  According to the DSM-IV, GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).

A GAF score between 41 and 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job).  A GAF score between 51 and 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).  A GAF between 61 and 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  A GAF score between 71 and 80 is indicative that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).

The Veteran contends that his PTSD warrants a rating in excess of 30 percent.

Treatment records show the Veteran received ongoing treatment for his PTSD in the form of medication, and individual counseling.  During the appeal period, he reported depression, nightmares that interrupted his sleep, intrusive thoughts, hypervigilance and flashbacks.  Letters were submitted in November 2016, April 2013 and June 2012 by his attending social worker and the director of the PTSD clinic in Miami, documenting his progress and noted that he experienced increased re-experiencing of trauma ,worsened hypervigilance, disturbances in arousal, adrenalized states, and resultant worsened depression.  His symptoms impacted his functioning, including rage responses, inability to trust, need for calming down, etc.  He would use isolation to avoid exacerbating symptoms.  His prognosis was guarded.  His GAF scores ranged from 48 to 60 within the treatment records obtained during the appeal period. 

The Veteran was afforded a VA examination in February 2011, during which the examiner went through his relevant history and confirmed diagnoses of PTSD and major depressive disorder, and polysubstance dependence in sustained remission.  His symptoms included; depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.

The examiner noted that he needed to work in a low stress environment, with little interaction with coworkers to avoid conflict.  He reported that he needed to take frequent breaks to unwind, in order to face the daily stressors and work demands.  He complained of decreased ability to focus and sustain concentration.  He had low productivity and work performance due to anxiety, depressed mood, intrusive thoughts, hyperarousal symptoms, increased startle response and avoidance of interpersonal interaction.  Ultimately, the examiner assigned a GAF of 55 and summarized that he had occupational and social impairment with reduced reliability and productivity. 

The Veteran's daughter submitted a letter in April 2013 discussing his symptoms such as nightmares, insomnia; however, she also noted that he was attending individual and group therapy hat seemed to help.  She noted that the relationship between her parents had suffered; they divorced due to this condition, but reconciled after he made some progress.  Another statement was submitted by a therapy participant who noticed that the Veteran exhibited violent outbursts and shared his nightmares with the group.  He reported that the Veteran expressed to him that his personal relationships had deteriorated and he was having significant problems at work. 

During the April 2013 VA exam, the examiner confirmed a diagnosis of PTSD and major depressive disorder.  There were several overlapping symptoms between the two conditions, including: irritability, insomnia, social withdrawal, poor concentration and suicidal thoughts with current plan or intent.  He also reported poor concentration that caused problems at work.  

The examiner reviewed the Veteran's recent history, noting that he remained married but their relationship was strained due to his irritability and emotional isolation.  He maintained a good relationship with his daughters, including seeing one almost daily; however, he distanced himself from her children because they caused him to become upset.  He continued to work as a dispatcher for local power company but cut back to part-time due to various symptoms.  Ultimately, the examiner opined that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.

The Veteran underwent another VA examination in December 2015 and the examiner confirmed the overlap of symptoms between the PTSD and MDD diagnoses.  The Veteran continued to experience irritability and emotional detachment from his wife, although, they participated in couples counseling.  He reported spending limited time outside of his home, as he was socially isolated and did not trust anyone.   He continued individual and group counseling, and completed a PTSD residential program in May 2014; he noted that he benefited from treatment.  He reported significant suicidal thoughts but denied any attempts or plans. 

He was fired from his job in December 2014 because he had difficulty interacting with colleagues and could not deal with the stressful nature of his position.  Overall, the examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, but he was capable of managing his financial affairs. 

During the November 2016 VA exam, the Veteran reported experiencing increased nightmares and intrusive thoughts following the deaths of his mother and mother-in-law.  His relationship with his wife was strained due to his condition.  He was estranged from his siblings and did not have any close friends; he rarely participated in social activities because he felt unsafe and aggravated.  

The examiner noted that he had the following symptoms due to his diagnoses: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, suicidal ideation, and neglect of personal appearance and hygiene.  He also experienced low energy, fluctuations in appetite, and significant guilt related to traumatic military experiences.  Overall, the examiner found that he had total occupational and social impairment. 

After thorough review of the record, the Board finds that the preponderance of the evidence supports an increased rating to 50 percent from February 23, 2011 and to 70 percent from April 18, 2013 for PTSD. 

From February 23, 2011

From February 2011, the Veteran reported decreased productivity and work performance due to anxiety, depressed mood, intrusive thoughts, hyperarousal symptoms, increased startle response and avoidance of interpersonal interaction.  He also had poor concentration and focus.  The examiner found that his symptoms would impact his ability to work in a high stress environment or interacting coworkers. 

A disability rating greater than 50 percent from February 23, 2011 is not appropriate because he did not exhibit symptoms more closely approximating those associated with a higher rating of 70 percent or higher.  Although he was having trouble dealing with stress at work, there is no evidence showing he engaged in obsessional rituals, which interfered with routine activities; had intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. 

From April 18, 2013

From April 2013, the evidence shows the Veteran's PTSD resulted in occupational and social impairment in most areas due to such symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and neglect of personal appearance and hygiene.  During that period, he reported having increased panic attacks and nightmares, as well as problems in his marriage due to self-isolation.  He also lost his job due to an inability to handle the stress of his position and to get along with his coworkers. 

A disability rating greater than 70 percent from April 18, 2013 is not appropriate because he did not exhibit symptoms more closely approximating those associated with a higher rating of 100 percent.  Although he experienced some suicidal ideation and neglected his personal hygiene, there is no lay or medical evidence which shows additional symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.  

Of the four VA examinations he received in order to evaluate the severity of his PTSD symptoms, only one examiner in November 2016 opined that he had total occupational and social impairment.  However, as discussed above, the noted symptoms do not amount to total impairment and symptomatology is the primary focus in assigning a rating.  In fact, every other examination performed during the appeal period, including the December 2015 exam, indicated the above assigned levels of occupational and social impairment.  The Board finds that the opinions indicating significant, but not total occupational and social impact due to his service-connected PTSD are the most probative and consistent with the evidence of record.  In other words, the Board finds that his symptoms do not more nearly approximate total occupational and social impairment at any point during the appeal period.  

Although the evidence shows that there have been some instances during the rating period when the Veteran's PTSD was not quite as severe in some of his treatment records and VA examination reports, there has been consistent treatment for his symptoms with little improvement in most areas.  The Board notes at this juncture that VA will handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability ratings consistent with the laws and regulations governing disability compensation and pension.  See 38 C.F.R. § 3.344(a).  As such, the Board finds that a 50 percent rating from February 23, 2011 and 70 percent rating from April 18, 2013 for PTSD pursuant to DC 9411 is warranted throughout the appeal period. 

In evaluating the Veteran's increased rating claim, the Board is aware that the symptoms listed under the 70 and 100 percent ratings are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  However, the Board finds that the record does not show the Veteran manifested symptoms that equal or more nearly approximate the criteria for a 70 percent rating prior to April 18,2 013 or a 100 percent rating at any point during the appeal period. 

In summary, the Board believes that his symptoms are similar in the frequency, severity, and duration as those associated with the criteria for a 70 percent rating.  In making this determination, the Board notes that the Veteran was assigned GAF scores between 48 and 60 throughout the appeal period, which denote serious to moderate symptoms or serious to moderate difficulty in social, occupational, or school functioning, which is consistent with a 70 percent rating.  The Board believes that the 70 percent disability rating contemplates the frequency, severity, and duration of his symptoms during the appeal period.  The rating assigned is based on all the evidence of record rather than any isolated medical finding or assessment of level of disability.  38 C.F.R. § 4.126(a).  
Hearing Loss

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.

The Veteran contends that his hearing is worse than the assigned disability ratings.  
On the authorized audiological evaluation in May 2011, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Avg
RIGHT
40
35
35
35
40
36
LEFT
40
35
35
50
50
43

Speech audiometry revealed speech recognition ability of 84 percent in both ears.  The examiner diagnosed mild to moderately severe sensorineural hearing loss and noted that it was due to the acoustic trauma he experienced in service.  Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level II hearing acuity in the right ear and Level II hearing acuity in the left ear.  Using Level II hearing and Level II hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant a zero percent rating.  

On the authorized audiological evaluation in May 2013, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Avg
RIGHT
40
35
40
50
50
44
LEFT
40
35
35
40
40
38

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 82 percent in the left.  The examiner diagnosed normal to moderately severe sensorineural hearing loss and noted that it was due to the acoustic trauma he experienced in service.  Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level II hearing acuity in the right ear and Level III hearing acuity in the left ear.  Using Level II hearing and Level III hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant a zero percent rating.  

Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran's hearing loss has not approximated the criteria for a compensable rating at any point during the appeal period.  Although the Board sympathizes with the Veteran's belief that he should be assigned an increased rating on the basis that his hearing loss has increased in severity, the Board's decision is based on the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet App. 345 (1992).  Thus, the assignment of a rating in excess of the zero percent is not warranted.

To the extent that the Veteran contends that his hearing loss is more severe than the rating that is currently assigned, the Board observes that the Veteran, while competent to report that he has difficulty hearing, is not competent to report that his hearing acuity is of sufficient severity to warrant increased compensation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

Tinnitus

In the September 2011 VA rating decision, service connection for tinnitus was granted because the disability was noted as directly related to service.  The Veteran was assigned a 10 percent rating effective from April 29, 2011.  See 38 C.F.R. § 4.87, Diagnostic Code 6260.  In his notice of disagreement, the Veteran requested an increased rating for tinnitus in excess of 10 percent.

Since the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus, the Board finds there is no legal basis upon which to award a higher schedular evaluation for tinnitus.  As such, entitlement to a rating for tinnitus in excess of 10 percent is not warranted on a schedular basis.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

III. TDIU

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history.  38 C.F.R. §4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

The Veteran contends that due to his service connected disabilities, he is unable to work due to his PTSD and peripheral neuropathy.  In his TDIU application and during a VA examination, he reported that he last worked in December 2014.  For the reasons below, the Board finds that the Veteran is entitled to a TDIU from December 1, 2014.  

The Veteran's service-connected disabilities included: post-traumatic stress disorder (PTSD) at 70 percent, peripheral neuropathy of both the upper and lower extremities at a combined rating of 80 percent, tinnitus at 10 percent and bilateral hearing loss at zero percent.  His combined rating for the time period on appeal is 100 percent.  As such, he met the schedular rating threshold for the grant of a TDIU beginning December 2014, when he was fired from his position.  Thus, the main question before the Board is whether the Veteran's service-connected disabilities alone rendered him unable to obtain substantially gainful employment.

During the February 2011 PTSD examination, the examiner noted that the Veteran had to work in a low stress environment, with no coworkers around him to avoid conflict and verbal altercations.  At times, his workload was unmanageable due to his symptoms.  The Veteran stated that he had to take frequent breaks to unwind and be able to face daily stressors and work demands.  He complained of decreased ability to focus and sustain attention/concentration, he had low productivity and work performance due to various symptoms. 

The examiner from the April 2013 VA PTSD examination noted that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. 

In his June 2013 TDIU application, the Veteran indicated that he was still employed but that his disabilities began to affect his full-time position in 2011.  He stated that he was under a doctor's care but did not note which disabilities were the cause of his problems. 

The Veteran underwent a VA examination in August 2015 for peripheral nerves condition and the examiner found that his condition did not impact his ability to work.  However, during the December 2015 VA examination, the examiner found that his neuropathic pains and constant numbness of his feet would greatly impact his physical and sedentary employment.  It was also noted that he had significant balance problems, which increased his risk for falls. 

The Veteran submitted another TDIU application in September 2015 and noted that PTSD and neuropathy of his extremities made him too disabled to work in February 2014.  However, his dates of employment noted that he was employed until December 2014.  He did not have any other education or training before or after leaving his position.  

During the December 2015 VA examination for PTSD, the Veteran reported that he was fired from  his job in December 2014 because he was unable to keep up with the workload and had difficulty interacting with coworkers.  The examiner noted that he had occupational and social impairment with deficiencies in most areas, but did not discuss the impact of his symptoms on his ability to work.

In a July 2016 letter, the Veteran's treating psychiatrist indicated that his PTSD has affected his ability to function in social and occupational roles and he was unable to acquire and sustain employment due to his medical and psychiatric conditions. 

The Veteran underwent another VA examination for PTSD in November 2016 and the examiner found that he was suffered from total occupational and social impairment. 

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran was precluded from obtaining and maintaining gainful employment consistent with his education and occupational experience due to his service-connected PTSD.  VA examiners did not find that the Veteran was unemployable due to his service-connected disabilities, but the ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  

In sum, the Board finds all reasonable doubt in the Veteran's favor in finding that his service-connected disabilities affect his ability to secure or follow a substantially gainful occupation.  As such, based on the evidence of record, entitlement to a TDIU from December 1, 2014 is warranted.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2017).


ORDER

A rating of 50 percent from February 23, 2013 and 70 percent from April 18, 2013 for PTSD is granted, subject to the laws and regulations governing the payment of VA benefits.

An increased rating for bilateral hearing loss is denied. 

An increased rating for tinnitus is denied. 

A TDIU is granted. 




____________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs