Citation Nr: 20008161 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 19-20 611 DATE: January 30, 2020 ORDER A rating higher than 10 percent for tinnitus is denied. A rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran is assigned the maximum schedular rating for tinnitus. 2. PTSD is manifested by unprovoked irritability with periods of violence and difficulty adapting to stressful circumstances; persistent danger to self or others, or other symptoms indicative of total impairment, are not shown. 3. The Veteran’s service-connected disabilities preclude him from obtaining or maintaining gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.87, Diagnostic Code 6260. 2. The criteria for a disability rating higher than 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 3. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from December 1969 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision. 1. Increased rating for tinnitus The Veteran is currently assigned the maximum 10 percent rating for his tinnitus under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. Neither the Veteran nor his representative has put forth an argument for why a higher rating is warranted, nor has a basis for a higher rating been otherwise raised by the record. Therefore, the claim is denied. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Increased rating for PTSD The Veteran is assigned a 70 percent rating for PTSD under 38 C.F.R. § 4.130, DC 9411, which is part of the General Rating Formula for Mental Disorders. The 70 percent rating contemplates 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 that is 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); and inability to establish and maintain effective relationships. The higher 100 percent rating is assigned when 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; and memory loss for names of close relatives, or for the Veteran’s own occupation or name. The criteria listed above serve as examples of the type and degree of the symptoms or effects that would justify a rating and are not meant to be an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Social and occupational impairment must be due to the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Board finds that a higher 100 percent rating is not warranted. The Veteran’s symptoms, while significant, do not rise to the level of total occupational or social impairment. In particular, an April 2019 VA examination documented impaired impulse control with periods of violence. This finding was based in part on a November 2018 statement from the Veteran’s wife which referenced his irritability with a history of past physical violence. In January 2019, the Veteran’s representative argued that this history of violence showed a persistent danger of the Veteran hurting himself or others warranting a 100 percent rating. As noted above, the current 70 percent rating specifically contemplates unprovoked irritability with periods of violence, which is what the April 2019 VA examiner assessed. Neither that examiner nor an October 2017 VA examiner found that the Veteran was a persistent danger to himself or others. VA treatment records from April 2017 also specifically noted that he was not a danger to himself or others. Therefore, the overall weight of the evidence regarding violent behavior is more consistent with the severity contemplated by the 70 percent rating. Otherwise, the evidence is negative for any findings of persistent delusions or hallucinations, grossly inappropriate behavior, any inability to perform activities of daily living, memory loss for basic concepts such as the Veteran’s own name, or other symptoms consistent with total impairment. The symptoms documented by the VA examinations of record, including difficulty adapting to stressful circumstances, sleep impairment and mood disturbances, are all expressly contemplated by the criteria for ratings up to the current 70 percent rating. Therefore, the claim is denied. 3. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for PTSD at 70 percent, tinnitus at 10 percent, and hearing loss at 0 percent. Therefore, he meets the schedular criteria for a TDIU. The central inquiry is determining whether a TDIU is warranted is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19. Various documents, including the Veteran’s TDIU application, show he worked as quality assurance manager at oil refinery from 1998 to 2010, and had two years of college level education in mechanical engineering. An October 2019 vocational assessment noted that his job included performing complex calculations and setting parameters for laborers. The Board finds that a TDIU is warranted. An October 2017 VA examiner stated that the Veteran’s PTSD would result in attention deficits and easy distraction, intrusive thoughts with difficulty maintaining concentration and focus, and disrupted sleep causing fatigue at work. An October 2019 private opinion from a vocational rehabilitation specialist noted similar findings. She found that sleep impairment resulted in fatigue which prevented clear thought. The Veteran’s agitation and irritability would affect his working pace and prevent him from getting along with others in a work environment. His memory impairment would also affect his occupational reliability. Due to hearing loss and tinnitus, the Veteran reported a preference for things to be written down rather than communicated verbally, and the vocational specialist noted that tinnitus and hearing loss also contributed to concentration deficits. These functional impairments, combined with the VA examination findings of general difficulty adapting to stressful circumstances and work-like settings due to PTSD, make it unlikely that the Veteran would be able to engage in gainful employment consistent with his educational background and past occupational duties, to include performing complex calculations and setting parameters for laborers as a quality assurance manager. These impairments, largely centered around difficulty with concentration, focus, and interaction with others, would also likely preclude him from any other gainful occupation for which he is otherwise qualified to perform. Therefore, a TDIU is appropriate in this case. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.