Citation Nr: 20022498 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-35 713A DATE: April 1, 2020 ORDER Entitlement to service connection for posttraumatic disorder (PTSD) is denied. Entitlement to service connection for tinnitus is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted from December 10, 2014. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder, not otherwise specified (NOS), and alcohol abuse, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a TDIU on an extraschedular basis prior to December 10, 2014 is remanded. FINDINGS OF FACT 1. The evidence of record reflects that the Veteran does not have a competent diagnosis of PTSD that is the result of a qualifying stressor. 2. The competent and credible lay evidence of record establishes that the Veteran has a current diagnosis of tinnitus that had its onset during service and has continued since that time without a clear intercurrent cause. 3. The evidence of record raises a reasonable doubt as to whether the Veteran’s service-connected disabilities have rendered him unable to secure and maintain substantially gainful employment throughout the appeal period; however, the Veteran did not meet the schedular criteria for entitlement to a TDIU until December 10, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 4.125(a). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). 3. The criteria for a TDIU due to service-connected disabilities have been met from December 10, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to November 1973. In January 2020, the Veteran and his wife, A.T., testified before the undersigned via video conference. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In any case where service connection is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). 1. Entitlement to service connection for PTSD The Veteran is seeking service connection for an acquired psychiatric disorder, which he specifically claimed as PTSD. However, as will be discussed in the remand portion of this decision, the evidence reflects that he has been diagnosed with anxiety disorder, NOS, and alcohol abuse. Therefore, the issue on appeal has been expanded and re-characterized to include all of the diagnoses claimed by the Veteran and reflected in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). For reasons explained below, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is discussed in the remand portion of this decision. Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The above cited regulation, 38 C.F.R. § 4.125(a), refers to the American Psychiatric Associations’ Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DMS-5) as the source of criteria for the diagnosis of claimed psychiatric disorders. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM, Fourth Edition (DSM-IV) and replace them with references to the updated DSM-V (5). Because the Veteran’s appeal was certified to the Board in February 2019, this claim is governed by the DSM-5. Credible supporting evidence is not required in the case of a combat stressor reported by a combat veteran. 38 C.F.R. § 3.304(f)(2). If a claimed stressor is related to a fear of hostile military or terrorist activity and a VA psychologist or psychiatrist or one with whom VA has contracted confirms that the stressor is adequate to support a PTSD diagnosis and the veteran’s symptoms are related to that stressor, the Veteran’s report alone may be enough to establish the stressor. 38 C.F.R. § 3.304(f)(3). In support of his claim for PTSD, the Veteran has consistently identified one incident that occurred during basic training as the basis of his claimed disability. Indeed, during the February 2015 VA examination and the January 2010 Board hearing, the Veteran reported that, during grenade practice during boot camp, the person in front of him dropped a grenade and the drill sergeant pushed him in that direction as the grenade went off. The Veteran reported that he was pushed to the back of the line after the grenade exploded but that he feared for his life. See February 2015 VA examination. After interviewing and examining the Veteran, the February 2015 VA examiner stated that the Veteran’s reported stressor was not adequate to support the diagnosis of PTSD, i.e., criterion A of a PTSD diagnosis under the DSM-5. The VA examiner explained that the Veteran’s reported stressor was not related to his fear of hostile military or terrorist activity, not related to personal assault, and was an isolated incident that was not considered traumatic. Because the Veteran’s reported stressor did not meet criterion A, the VA examiner stated that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5. The Board acknowledges that, while describing his stressors during the January 2020 hearing, the Veteran also reported that he was stationed in Okinawa after boot camp and that he was assigned to a ship that performed an operation in the Gulf of Tonkin of Vietnam to provide supplies to another ship. The Veteran testified that this was a big responsibility and that he did not expect to do things that like in the Army. The Veteran did not, however, testify as to any combat operations or any particularly stressful or traumatic events that occurred during his service in Okinawa or the Gulf of Tonkin. Therefore, the Board finds there is no need to obtain a medical opinion that considers whether these events are sufficient to support a diagnosis of PTSD. The Board finds that the February 2015 VA examination provides the most probative evidence as to whether the Veteran meets the criteria for a diagnosis of PTSD in this case, as the VA physician interviewed the Veteran, considered the Veteran’s reported stressors, conducted psychological testing, and provided an analysis of why the Veteran did not meet the specific criteria for the diagnosis of PTSD under the DSM-5. The Board finds probative that there is no other medical evidence of record showing the Veteran has been diagnosed with PTSD, including in the VA and private treatment records that are associated with the claims file. The Board also notes that PTSD is not a condition that can be diagnosed by a lay person. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Therefore, because the most probative evidence of record is against a finding that the Veteran meets the criteria for a PTSD diagnosis or has a qualifying stressor, the claim of entitlement to service connection for PTSD must be denied. 2. Entitlement to service connection for tinnitus In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). During the January 2020 Board hearing, the Veteran reported having tinnitus. This evidence sufficiently establishes the presence of the currently claimed disability, tinnitus. During the Board hearing, the Veteran testified that his tinnitus began after a grenade explosion that occurred during basic training and has continued since that time. The Veteran is competent to report the events that occurred during service and the Board notes that his description of the explosion during grenade practice is consistent with the places, types, and circumstances that would be expected to occur during basic training. See 38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran’s service). Therefore, the Board finds the Veteran’s assertions regarding his exposure to a grenade explosion and the onset and nature of his tinnitus to be competent and credible lay evidence of such. The Veteran has not provided any conflicting reports as to the onset and continued nature of his tinnitus and, as a result, the Board has no reason to doubt his report. Accordingly, the Board finds that his statement regarding chronicity of tinnitus since his military service to be credible. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes the Veteran has not been afforded a VA examination in conjunction with this claim and there is no other medical evidence or opinion of record that addresses whether the Veteran’s tinnitus is likely related to his military service. However, the Veteran’s credible assertions of ringing in his ears during and since active service establish chronicity of tinnitus and, as such, a nexus to service is shown. Indeed, the manifestation of tinnitus for the first time in service and its continued or subsequent manifestation following service without a clear intercurrent cause permits service connection on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.303(b), 3.304(b), 3.307(a), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). There is no evidence of record that shows or suggests that the Veteran was exposed to significant noise after service or that his tinnitus began as a result of a post-service event or injury. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board is satisfied that the criteria for entitlement to service connection for tinnitus have been met. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting,” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. As noted, the Veteran initially sought entitlement to a TDIU in October 2014. Since that time, the Veteran’s service-connected disabilities have included resolved acne with facial scars, rated noncompensable; erectile dysfunction with distorted meatus due to recurrent catheterizations, rated noncompensable from April 17, 2013 and 20 percent from September 4, 2018; peripheral neuropathy affecting the left and right lower extremities, separately rated 20 percent disabling from December 10, 2014; and diabetes mellitus type II, rated 60 percent disabling from December 10, 2014 and 20 percent disabling from October 24, 2018. In addition to the foregoing, prostate cancer with radiation-induced cystitis was assigned a temporary total 100 percent rating from February 2, 2012, after which a noncompensable rating was assigned from November 1, 2014, 40 percent disabling from December 10, 2014 and 60 percent disabling from June 22, 2017. Based on the foregoing, the Veteran did not meet the schedular criteria for entitlement to TDIU under 38 C.F.R. § 4.16(a) until December 10, 2014, as that is the date he had one service-connected disability rated 60 percent, with additional disabilities bringing his combined rating to 70 percent or more. See 38 C.F.R. §§ 4.25, 4.26. Therefore, the Veteran meets the percentage requirements of 38 C.F.R. § 4.16(a) for entitlement to TDIU as of December 10, 2014. Next, the Board must determine whether the evidence of record shows the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment and, in this regard, the Board finds the evidence raises a reasonable doubt as to whether the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment throughout the appeal period, i.e., from October 15, 2014. The evidence reflects that the Veteran completed four years of high school and that he also completed training in welding and machine shop during 1974 and 1975. The evidence also shows that, after service, the Veteran worked fulltime as a Lead Machine Mechanic at Del Monte Food Company from 1976 until he retired in 2005. See September 2018 VA Form 21-8940. The Veteran has asserted that he is unable to secure and maintain substantial gainful employment because of all of his service-connected disabilities. See October 2014 Veteran statement; September 2018 VA Form 21-8940. During the January 2020 Board hearing, he specifically identified his bilateral lower extremity peripheral neuropathy, diabetes mellitus, and residual prostate cancer disabilities as those that render him unemployable. In this regard, the Veteran testified that he has difficulty walking in a straight line or moving laterally because of his peripheral neuropathy and that he needs a walker most of the time. He testified that he stopped working in 2007 because the medications he was taking for diabetes mellitus made him sleepy and he was unable to stay awake at work. He also testified that, because of his prostate cancer, he cannot control his urine, which requires that he wears a catheter and absorbent materials that must be changed three times a day. As an initial matter, the Board notes that, while the Veteran has attributed his difficulty walking to his service-connected bilateral lower extremity peripheral neuropathy, the preponderance of the evidence reflects that his ambulation and balance difficulties are a result of the cerebral infarction (stroke) he had in December 2015 – a condition for which service connection has not been established. See April 2016 Central Nervous System VA examination; February 2017 Central Nervous System VA examination. In fact, the clinician who conducted the October 2018 Peripheral Nerves VA examination stated that the Veteran’s antalgic gait is due to the cerebral stroke that occurred in December 2015 and is unrelated to his service-connected disabilities. Similarly, the October 2018 VA examiner noted that the assistive devices the Veteran uses, including regular use of a wheelchair and walker, were used for complications of the stroke. As for the functional impairments caused by the service-connected bilateral lower extremity peripheral neuropathy, the preponderance of the evidence reflects that the Veteran experiences no more than mild numbness, paresthesias, and dysesthesias, and intermittent pain in his lower extremities, with normal muscle strength and no muscle atrophy. Sensory testing was decreased to light touch during the March 2015 VA examination but normal upon examination in October 2018. However, both VA examiners opined that the peripheral neuropathy disabilities did not have any impact on the Veteran’s ability to work. Notably, the March 2015 VA examiner stated that the Veteran stopped working due to work-related back operations. See March 2015 VA Peripheral Nerves examination; October 2018 VA Peripheral Nerves examination. Nevertheless, the medical evidence shows that the residuals of the Veteran’s service-connected prostate cancer includes erectile dysfunction, which does not prevent employment, and radiation-induced cystitis, which results in voiding dysfunction that requires an indwelling Foley catheter. See October 2018 VA Prostate Cancer examination. The Veteran and his wife testified that the catheter must be changed once a month and prevents him from moving or doing much of anything. They also testified that, despite the catheter, the Veteran wears a diaper and pad, which his wife changes three times a day. The testimony provided during the Board hearing regarding the functional impairment caused by the indwelling catheter and the use of absorbent materials as a result of his prostate cancer is considered competent and credible evidence of such. The Board also finds that the Veteran’s testimony that the medications used to treat his diabetes mellitus caused him to sleep on the job is competent and credible evidence of such, as he is competent to report such matters and there is no evidence to the contrary. Therefore, after reviewing the foregoing evidence, the Board finds there is reasonable doubt as to whether the Veteran’s service-connected disabilities have rendered him unemployable throughout the appeal period. The Board acknowledges there is evidence to the contrary, namely the assessments made by numerous VA examiners that the Veteran’s service-connected prostate cancer, diabetes mellitus, and peripheral neuropathy disabilities do not impact his ability to work. However, the lay and medical evidence of record suggests that the foregoing service-connected disabilities would likely prevent him from securing and maintaining substantially gainful employment of any kind. Indeed, given the Veteran’s educational and work history, the Board finds it is unlikely the Veteran would be able to secure any employment outside of the mechanical field, as the majority of his education and employment was in mechanics. In this context, the Board notes the Veteran would require accommodations to have his absorbent materials changed three times a day and that is unlikely he would be able to operate machinery or any other type of employment that would require prolonged concentration, as the medications used to treat his diabetes cause drowsiness. Given the significant functional impairments caused by his service-connected prostate cancer and diabetes mellitus disabilities, the Board finds the evidence raises a reasonable doubt as to whether the Veteran’s disabilities have prevented him from securing and maintaining substantially gainful employment. As such doubt is resolved in favor of the Veteran, the Board finds that the claim for entitlement to a TDIU is granted, effective December 10, 2014. As for entitlement to a TDIU on an extra-schedular basis prior to December 10, 2014, this matter must be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating, as the Veteran does not meet the schedular criteria for a TDIU prior to that date and the Board cannot grant TDIU under these circumstances in the first instance. 38 C.F.R. § 4.16(b). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder, not otherwise specified (NOS) and alcohol abuse, is remanded. During the February 2015 VA examination, the Veteran was diagnosed with an anxiety disorder, NOS, and alcohol abuse. During the examination, the VA examiner indicated that the Veteran’s substance abuse is secondary to or aggravated by a psychiatric disorder related to military service and, by way of explanation, stated that the Veteran’s alcohol usage was used to cope with anxiety. However, the examiner did not provide an opinion as to whether the Veteran’s anxiety disorder began during or as a result of his military service, to specifically include the reported grenade incident that occurred during basic training. See February 2015 VA examination. In this context, the Board notes that the VA treatment records reflect that the Veteran sought mental health treatment several years after service and consistently reported that his various symptoms, including anxiety, began in response to medical, marital, and financial stressors that occurred after service. See e.g., April and June 2014 VA treatment records; May 2016 VA treatment record. Given the foregoing, the Board finds a remand is needed to obtain a medical opinion that addresses whether the Veteran’s diagnosis of an anxiety disorder, NOS, is related to his military service. 2. Entitlement to service connection for bilateral hearing loss is remanded. During the January 2020 hearing, the Veteran reported being exposed to significant noise during basic training, including as a result of the grenade explosion and during his qualifications on the M16 300 rapid fire gun. He also reported exposure to noise when he was stationed in Camp Schwab, which he described as an infantry station where M-50s and other artillery were always firing. The Veteran testified that he does not remember using any hearing protection during service and that his difficulty hearing has continued to the present time. As noted, the Veteran is competent to report the events that occurred during service and his description of noise exposure during the grenade explosion and qualifying as an expert marksman are consistent with the places, types, and circumstances that would be expected to occur during basic training. See 38 U.S.C. § 1154(a). In this regard, the Board notes the Veteran’s DD Form 214 reflects that he received the Rifle Expert Badge. The Veteran is also competent to report the onset and nature of his hearing difficulty during and since service; however, hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. Instead, a physical examination that includes objective audiometric testing is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Board finds the Veteran’s hearing testimony is sufficient to trigger VA’s duty to assist the Veteran by scheduling a VA examination. Indeed, the Veteran’s competent lay assertions establish the presence of persistent symptoms of hearing difficulty, an in-service event, and an indication that the persistent symptoms of hearing difficulty may be associated with his service and, yet, there is no medical evidence or opinion of record that addresses whether any currently diagnosed hearing disability is likely related to the Veteran’s military service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, a remand is needed. 3. Entitlement to a TDIU on an extraschedular basis prior to December 10, 2014 is remanded. As noted above, the Veteran does not meet the schedular criteria for entitlement to a TDIU under 38 C.F.R. § 4.16(a) prior to December 10, 2014 but the evidence of record raises a question as to whether the functional impairment caused by his service-connected prostate cancer and diabetes mellitus disabilities renders him unemployable since the date of receipt of his claim, i.e., October 15, 2014. Therefore, consideration must be given to whether the Veteran’s is entitled to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) prior to December 10, 2014. However, because the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance, a remand is required in order for the RO to submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. The matters are REMANDED for the following action: 1. Refer this case to the Director, Compensation Service, for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to December 10, 2014. 2. Return the claims file to the February 2015 VA examiner for an addendum opinion regarding the likely etiology of the Veteran’s current acquired psychiatric disability. If the February 2015 VA examiner is unavailable, the opinion should be rendered by another appropriate medical professional. After reviewing the record, the examiner should provide an opinion as to whether it is as likely as not (a probability of 50 percent or more) that the Veteran’s anxiety disorder, NOS, was incurred during service or is otherwise related thereto? If the answer to the foregoing is yes, the examiner should address whether it is as likely as not (a probability of 50 percent or more) that the Veteran’s diagnosis of alcohol abuse/use is secondary to or aggravated by his anxiety disorder. In answering the foregoing, the examiner must consider and discuss all relevant medical evidence and lay assertions. A clear rationale for the opinions must be provided. If the examiner cannot provide any of the opinions without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Schedule the Veteran for a VA audiological examination. The examiner must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or more) that any current hearing loss was incurred in-service or is otherwise related to the Veteran’s military service, to specifically the grenade explosion or marksman qualifications during basic training, or any other event or injury during service. The examiner must also consider and discuss all relevant medical evidence and lay assertions, including the Veteran’s description of experiencing hearing difficulty during and since service. A clear rationale must be provided for any opinion offered. If the examiner cannot provide any of the opinions without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.