Citation Nr: 21003263 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-38 651A DATE: January 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to total disability rating based on individual unemployability (TDIU) is granted from October 11, 2016. Entitlement to special monthly compensation (SMC) at the housebound rate is granted from October 11, 2016. The appeal involving the issue of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol dependence is dismissed. The appeal involving the issue of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II (diabetes) is dismissed. FINDINGS OF FACT 1. The Veteran’s tinnitus had its onset in service. 2. Since October 11, 2016, the Veteran’s service-connected PTSD with alcohol dependence has caused him to be unable to secure or follow a substantially gainful occupation. 3. Based on the Board’s award of TDIU as a result of the Veteran’s service-connected PTSD with alcohol dependence, the Veteran had a single service-connected disability rated at 100 percent plus an additional service-connected disability rated 60 percent or more from October 11, 2016. 4. During his August 2020 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action withdrew his appeal as to the issues of entitlement to increased ratings for diabetes and PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. § 3.303(b). 2. The criteria for entitlement to a TDIU are met from October 11, 2016. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. The requirements for SMC at the housebound rate are met from October 11, 2016. 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. §§ 3.102, 3.350(i). 4. The criteria for withdrawal of an appeal by the Veteran have been met regarding his appellate claims of increased ratings for diabetes and PTSD. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1971 to August 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012, January 2017, and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified before the undersigned Veterans Law Judge. 1. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including tinnitus, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran relates his tinnitus to his exposure to in-service acoustic trauma. Here, the Veteran has a current diagnosis of tinnitus. He has competently reported tinnitus in his lay statements and to a VA examiner. In this regard, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the first element of service connection has been met. Regarding the second and third elements, in-service incurrence of the injury and nexus, the Veteran’s service treatment records (STRs) are silent for tinnitus complaints. However, the Board finds that his reports of noise exposure are consistent with the circumstances of his service in Vietnam and his military occupational specialty as an auto mechanic. 38 U.S.C. § 1154(a). Also, the Veteran has competently and credibly reported that he has continued to experience recurrent ringing in his ears during and since service, coincident with his duties. See January 2013 private audiology report; November 2013 VA Form 9; August 2020 Board Hearing Transcript at 12. Thus, the Board finds his assertions that tinnitus was first incurred in service and has been present continuously since service credible. As such, the second and third elements of service connection are established. The Board notes that the December 2010 VA audiologist indicated that she was unable to render a medical opinion addressing the etiology of tinnitus without resorting to mere speculation. The Board notes that in order to rely upon a statement that a medical opinion cannot be provided without resort to mere speculation, it must be clear that all the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. See Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010). In the present case, it is clear that all procurable and assembled data was not fully considered at the time of the December 2010 VA examination. Notably, the examiner failed to address whether the Veteran’s exposure to acoustic trauma in service caused his current tinnitus and did not consider his competent and credible reports regarding the onset of tinnitus in service and continual symptoms ever since. Thus, the Board finds that the December 2010 VA examination report is inadequate. Considering this background and evidence, the Board finds that it will resolve the doubt as to this nexus element in the Veteran’s favor, and service connection is established. 2. Entitlement to a TDIU is granted from October 11, 2016. The Veteran asserts that he is entitled to TDIU benefits. The appeal period before the Board begins on October 11, 2016, the date VA received his increased rating claim for PTSD. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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, 168 (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). TDIU 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 he 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. 38 C.F.R. § 4.16(a). Throughout the appeal period, he has met the minimum percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). Thus, the main question before the Board is whether the Veteran’s service-connected disabilities render him unable to obtain substantially gainful employment. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Board notes that on his January 2018 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was unable to work as a result of his service-connected diabetes. However, during his Board hearing, the Veteran essentially testified that his PTSD with alcohol dependence symptoms alone render him unemployable. The Board agrees. The evidence shows that the Veteran last worked full-time in December 2014. See January 2018 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. This in accord with the economic component of entitlement to a TDIU. Regarding the noneconomic component, the Veteran has reported four years of high school education and that he last worked full-time as a mechanic in 2014. Prior to that, he worked part-time as a mechanic in 2012. During VA outpatient treatment in October 2016, the Veteran reported that his alcohol dependence caused him to be laid off as a heavy equipment mechanic. During the November 2016 VA PTSD examination, the Veteran reported that “he has failed in life one reason is he couldn’t retire from one job, he just went from job to job, he think[s] he should have lost his life in Vietnam…” He also reported that he was terminated from his job in 2013. The Veteran endorsed symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, nightmares, difficulty trusting others, mild memory impairment, tearfulness, flashbacks, feelings of detachment or estrangement from others, impaired judgment, and suicidal ideation. The Veteran reported to the examiner that his PTSD triggers included thunder, car backfire, and loud voices. During the May 2018 VA examination, the Veteran endorsed symptoms of anxiety, suspiciousness, chronic sleep impairment, tearfulness, survivor’s guilt, and disturbances of motivation and mood. Notably, the November 2016 and May 2018 VA examiners determined that the Veteran’s PTSD symptoms described above caused clinically significant distress or impairment in social and occupational functioning. During the August 2020 Board hearing, the Veteran testified that his PTSD causes depression, frustration, and irritability with loud noise. For example, he testified that it was customary to blow the car horn when entering the mechanic shop, but the sound would cause him to be irritable and interfere with his ability to perform his duties. He further reported altercations with his supervisors and coworkers, which at times almost became physical. Given these findings, including the Veteran’s competent and credible testimony, the Board finds that the overall severity of the Veteran’s psychiatric symptoms described above preclude substantially gainful employment, throughout the appeal period, beginning October 11, 2016. Hence, entitlement to a TDIU is warranted from October 11, 2016. 38 U.S.C. §§ 1155, 5107(b). 3. Entitlement to SMC is granted October 11, 2016. VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim” and remanding, pursuant to VA’s duty to maximize benefits, for VA to determine whether the Veteran’s posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran is currently in receipt of a TDIU based solely on his PTSD, effective October 11, 2016, and has an additional service-connected disability independently ratable at 60 percent (diabetic nephropathy with chronic kidney disease, stage 3). See 38 C.F.R. § 4.16(a)(4). Thus, SMC at the housebound rate is warranted from October 11, 2016. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 4. The appeal involving the issue of entitlement to a rating in excess of 50 percent for PTSD is dismissed. 5. The appeal involving the issue of entitlement to a rating in excess of 20 percent for diabetes is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn 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. Withdrawal may be made on the record at a hearing by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, who is represented by an attorney, at his August 2020 Board hearing, advised that he wished to withdraw his appeal regarding increased ratings for diabetes and PTSD, if a TDIU is warranted throughout the appeal period. See August 2020 Board Hearing at 11. As noted above, the Board has awarded a TDIU throughout the entire appeal period. Accordingly, he has withdrawn the appeal as to these issues and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal regarding his diabetes and PTSD claims and they are dismissed. Additionally, the Board notes that, in December 2019 and June 2020, the Veteran’s representative challenged the competency of the VA examiners who administered the May 2018 VA examinations; and requested the examiner’s curriculum vitae (CV) and all known qualifications to determine the adequacy of the examiner’s expertise, pursuant to Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). Consequently, the Board finds that once a claimant requests information about an examiner’s qualifications, the duty to assist mandates that the claimant “has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner.” Id. However, as the Veteran testified during his hearing that a grant of a TDIU throughout the appeal period would satisfy his appeal, the Board concludes that no further duty to assist is required in response to the attorney’s argument in this case. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.