Citation Nr: 21000058 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-15 500 DATE: January 4, 2021 ORDER A total disability rating due to individual unemployability (TDIU) effective from March 27, 2011, is granted. REMANDED The claim of entitlement to a compensable rating for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantial gainful employment for the entire period on review. It is factually ascertainable that he met this level of severity starting March 27, 2011. CONCLUSION OF LAW The criteria are met for a TDIU effective March 27, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400(o), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1982 to November 1984, and from February 1986 and October 2006. This appeal is from a March 2015 rating decision. The Board remanded this claim in August 2018, along with the issues of the effective date for the Veteran’s service-connected PTSD and the disability rating for service-connected hearing loss. Since then, PTSD was granted an effective date of the day after he separated from active duty service, which is a full grant of the benefits sought; accordingly, it has not returned to the Board for further review. The Veteran has not filed an NOD to the rating assigned in this decision, and therefore, there are no downstream elements of this grant for further Board review. His claim for a higher rating for hearing loss requires still more development, as discussed further below. A TDIU effective from March 27, 2011, is granted. The Veteran filed a claim for an increased rating for his bilateral hearing loss in June 2011. Thereafter, in May 2013, a rating decision was issued, but the AOJ (agency of original jurisdiction) indicated that this was a provisional decision. Thereafter, a hearing loss VA examination was scheduled in March 2015, which resulted in the decision on appeal. Subsequently, following the Veteran’s appeal of his hearing loss rating to the Board, the Board found that the issue of a TDIU had been raised by the record. In the August 2018 remand, the Board asked for this claim to be developed. Accordingly, the TDIU is considered pending as of receipt of his claim for a higher rating for hearing loss. And, while it is also considered part and parcel of the hearing loss claim, the Board must consider entitlement based upon all service-connected disabilities. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The Veteran’s combined disability rating has been 90 percent since November 1, 2006. As his claim was received in June 2011, the Board notes that he meets the schedular criteria for assignment of a TDIU for the entire period on appeal. The remaining inquiry is whether his service-connected disabilities preclude employment. The Veteran’s application for TDIU lists hearing loss and PTSD as the disabilities that preclude working. He has argued that his hearing loss in particular lead to his separation from service. The record shows he went to college, but not whether he has a degree. As noted above, the Veteran served over twenty years on active duty. His DD-214 shows he worked in field artillery and automated logistics. His application for SSA (Social Security Administration) disability shows he worked in fire control from 1994 to 2006. Following separation from service, he was a sales associate, mail carrier, and mail clerk. The SSA decision granting him disability benefits shows he has not engaged in substantial gainful activity since March 27, 2011, which was due to his PTSD. The decision notes that the Veteran had reported additional disabilities caused inability to work, including musculoskeletal limitations and hearing loss. The decision continues that these disabilities were not being evaluated, as PTSD was sufficient on its own to cause total disability under the law pertaining to SSA disability. The Veteran is service connected for PTSD (70 percent), left shoulder disability (20 percent), right shoulder disability (20 percent), left hip strain (10 percent), tinnitus (10 percent), hearing loss (0 percent), hypertension (0 percent), and hepatitis C (0 percent). The record shows that SSA has found him totally disabled based on his PTSD alone, without doing any evaluation of the impact his other disabilities had on employment. The SSA records indicate that the Veteran had recurrent panic attacks at least once per week, and that the Veteran would have difficulty establishing and maintaining effective work relationships including with customers and co-workers. He reported having hallucinations. He had strong feelings of suicidal ideation, and was easy to anger. The December 2013 VA examination report noted the Veteran had feelings of detachment or estrangement from others, and a peristent inability to perceive positive emotions. He was irritable, had trouble concentrating, and an exaggerated startle response. He was suspicious, with mild memory loss and impairment of short-term and long-term memory. In a May 2019 statement, he reported he was not able to work at the postal service due to PTSD. In an SSA assessment of his ability to do his past work, that examiner found his shoulders precluded him from performing past employment because it all required frequent overhead reaching. In a May 2019 statement, the Veteran argues he was discharged from military service partly because of his hearing loss. In a July 2017 statement, he argues that he was discharged from the service based on his hearing loss. A July 2005 memorandum to the MMRB (MOS/Medical Retention Board) indicates that his hearing loss and chronic back pain precluded him from performing critical combat tasks that would be required by his position. His STRs show that his PULHES profile at his July 2006 separation examination was U2, L3, and H3. A “PULHES” profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The “P” stands for “physical capacity or stamina,” the “U” indicates “upper extremities,” the “L” is indicative of “lower extremities,” the “H” reflects the condition of the “hearing and ears,” the “E” is indicative of the “eyes,” and the “S” stands for “psychiatric condition.” Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Thus, while his STRs do show that his hearing loss contributed to the totality of his disability, they also show that his upper and lower extremities were profiled, and that all of his physical disabilities interfered with his job. Accordingly, based on the above and a review of the record, the Board finds that a TDIU is warranted starting from March 27, 2011, which is the date he last worked substantial gainful activity, and is within the year preceding receipt of his claim in June 2011. 38 C.F.R. § 3.400(o). The record shows his PTSD precludes him from working with people and interferes with concentrating and memory, which would impact the ability to comprehend and retain instructions and job duties. It also shows that he cannot do his past relevant work, which was more solitary but required repeated overheard reaching and lifting, because of his shoulders. Finally, the record shows the Veteran’s hearing loss interfered with his ability to perform his job functions while still on active duty. This appeal is granted. To the extent the Veteran’s statements regarding the severity of his hearing loss should be construed as assertion that TDIU should be based upon his hearing loss alone, the Board is not persuaded. As noted in the SSA decision, an October 2012 VA hearing test showed good and excellent word recognition scores. Further, his arguments pertain to his ability to perform his active service duties, which are not solely under consideration here. Rather, the issue is whether his service-connected disabilities preclude him from any substantial gainful employment based upon his previous education and experience. Indeed, he also argued his PTSD prevented him from working for the postal service. Based upon all the evidence, the Board finds his hearing loss would have an impact on his employability, but not preclude it entirely. Rather, the combination of his PTSD, his hearing loss, and his bilateral shoulders together preclude him from working. REASONS FOR REMAND The claim of entitlement to a compensable rating for bilateral hearing loss is remanded. After review of the record, the Board finds that additional development is required for this claim. The Board regrets the additional delay this development will cause, but finds it necessary to protect the Veteran’s due process rights. The record shows the Veteran was given hearing tests at VA in June 2012 and February 2019. The AOJ should ascertain whether the Maryland CNC test was used for those tests, and if so, obtain copies of the results. The June 2019 VA examiner indicated the hearing test results were of questionable validity, but agreed that his symptoms appeared to have increased. It is not clear that it would not be possible to get valid results, and therefore another attempt shall be made. The record shows the Veteran has associated pain and physical discomfort to his hearing loss, and he was diagnosed with hyperacusis in October 2012. It is not clear if this is a chronic diagnosis, and will be addressed by the VA examiner. The matters are REMANDED for the following action: 1. Associate updated VA treatment records with the claims file. 2. Ascertain whether audiograms from June 2012 and February 2019 were conducted with Maryland CNC word recognition testing, and if so, obtain copies of the result for the claims file. Document efforts to determine this information. 3. After completion of the above, schedule the Veteran for an appropriate examination for an updated hearing test and a report on the current severity of his hearing loss. The examiner is asked to conduct a hearing test, and if results or questionably valid, the examiner is asked to clearly explain what would be necessary to obtain valid results. The Veteran was diagnosed with hyperacusis in October 2012. The examiner is asked whether this diagnosis is still present. All symptoms of his hearing loss and related diagnoses are to be noted. The examiner is asked to elicit from the Veteran a detailed history of his symptoms. If the audiologist that conducts the hearing test is not able to provide detailed opinion regarding this question, then so notify the scheduling authority to forward it to an appropriate specialist to address this question. All opinions must be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.