Citation Nr: 21072274 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 13-09 054 DATE: December 2, 2021 ISSUES 1. Entitlement to service connection for residuals of a nose injury. 2. Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU). ORDER Entitlement to service connection for a residual scar at the base of the nose is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an extraschedular TDIU, exclusive of the period during which the Veteran is already in receipt of a temporary total rating for post-traumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his residual scar at the base of his nose is at least as likely as not related to an in-service injury. 2. The Veteran's service-connected PTSD presents an exceptional disability picture and in combination with his service-connected bilateral hearing loss and tinnitus, precludes him from maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a residual scar at the base of the nose have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving doubt in the Veteran's favor, the criteria for a finding of a TDIU under 38 C.F.R. § 4.16 (b) have met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16 (b), 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to July 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In September 2016, the Veteran testified during a travel Board hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of the hearing is associated with the claims file. By way of background, the Veteran's claim for entitlement to service connection for the residuals of a nose injury was denied in a June 2010 rating decision because the evidence submitted was not new and material. The Veteran's claim for entitlement to a TDIU was also denied. The Veteran filed a timely Notice of Disagreement (NOD) in September 2010. A Statement of the Case (SOC) was issued in December 2012 and the Veteran appealed the claim to the Board in February 2013. See February 26, 2013 VA Form 9. The Veteran died in February 2020. The Appellant is his surviving spouse. In November 2020, the Appellant submitted a request for substitution as claimant upon the death of the Veteran, which has been approved. See May 4, 2021 VA Correspondence. In a September 2017 decision, the Board, reopened and remanded the Veteran's claim for entitlement to service connection for the residuals of a nose injury for the purpose of obtaining a VA examination to determine the nature and etiology of his alleged nose injury. The Board also referred the Veteran's claim for TDIU to the Director of Compensation for extraschedular consideration. The RO issued supplemental statements of the cases dated September 24, 2021 and October 13, 2021 which respectively denied the Veteran's TDIU claim for extraschedular consideration and entitlement to service connection for the residuals of a nose injury. The matters have returned to the Board for appellate review. Entitlement to service connection for residuals of an injury to the nose or residuals of a nose fracture. The Veteran asserts that in 1984, an artillery simulator detonated, and a piece of plastic hit his nose and/or septum, resulting in a facial scar. See July 21, 1986 VA Form 21-526; See also, September 25, 1987, Statement in Support of Claim re: The Veteran asserts that he must maintain a mustache to hide this scar. In a September 2009 statement, the Veteran reported that after the injury, he was referred to Womack Army Hospital for treatment where a doctor and nurse treated his nose/septum with approximately 15 stitches. See September 15, 2009 VA Form 21-4138, Statement in Support of Claim. At his Board Hearing, the Veteran testified that this incident occurred when he was in the field. The Veteran testified that he went to the brigade because the whole battalion was out in the woods. The Veteran testified that he was sent over to the Army hospital for treatment; there was no surgery. The Veteran testified that they just sewed him up and sent him back to the barracks. The Veteran testified that he does not have any difficulty breathing as it relates to his nose injury. See September 2016 Board Hearing transcript, pgs., 16-17. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). Discussion During service, the Veteran was an infantryman for 3 years and 7 months. See DD-214. The Veteran's service treatment records are silent regarding any complaints, treatment or diagnosis for a nose injury. Pursuant to the Board's September 2017 remand, the Veteran was afforded a medical opinion with respect to the residuals of an injury to the nose during service. After review of the Veteran's service treatment records, post service treatment records, pertinent VA examinations and imaging studies, September 1987 and September 2009 statements from the Veteran, including September 2016 Board Hearing testimony, the examiner rendered a negative nexus to service. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the following rationale to support this nexus opinion: Even though this Veteran's Tampa VA scars exam documents a scar, this Veteran's service treatment records are silent for any nasal lacerations or other nose injuries as well as any sinus complaints. There are no private medical records available for review. VA or (CPRS) medical records are also silent for any nose injuries or nose complaints as well as any sinus complaints. Multiple physical exams note normal nose exams including an otolaryngology exam dated April 9, 2010 which also documents "septum midline". Multiple CAT scans of the head beginning in 2000 document normal sinuses & no structural defects of the nose until October 25, 2017, at which time a "mild leftward nasal septal deviation" was noted on CT. There is no objective clinical evidence of any nasal injury or residuals of a nose injury (other than a scar) prior to October 25, 2017 (31 years after military service) based on multiple physical exams & radiographs which address the nasal structure & sinus cavities. See May 19, 2021 Medical Opinion. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds the Veteran's lay statements describing how he came to injure the area at the base of his nose during active-duty service, resulting in his present scar credible and not inconsistent with the November 2012 VA examination. The Veteran is competent to report the injury and its treatment. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran acknowledged that he did not have surgery for his injury. The Veteran testified that he was in the field during this injury. The May 2021 examiner confirmed that there is evidence of a scar at the base of the nose at the nasal septum. See May 19, 2021 Medical Opinion referencing Tampa VA scar exam. See also, November 9, 2012 (Tampa, VA) Scar Condition's examination re: medical history and Scar #2. The Board observes that the May 2021 examiner did not provide any rationale discounting the Veteran's testimony regarding the circumstances of his in-service injury and the etiology of the residual scar. As such, the Board finds the Veteran's lay statements and testimony regarding the etiology of his residual scar and its nexus to service persuasive. Affording him the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran's residual scar at the base of his nose had its onset as a result of an injury during active-duty service. See July 21, 1986 VA Form 21-526; September 25, 1987, Statement in Support of Claim September 2016 Board Hearing transcript, pgs., 16-17. Consequently, service connection is granted. 38 U.S.C. § 5107 (b). Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU). The Veteran contends that he is entitled to TDIU due to his service-connected PTSD, in combination with his other service-connected tinnitus and bilateral hearing loss prevent him from securing or following any substantially gainful occupation. See July 13, 2009, VA Form 21-8940. See September 2016 Board Hearing transcript, pgs. 3-4. In his September 2016 Board hearing, the Veteran testified that the level of symptomology related to his PTSD precludes him from any substantial gainful activity, i.e, completing a regularly scheduled work week, much less handling typical tasks associated with work including dealing with customers, supervisors, co-workers. The Veteran also testified that his PTSD symptomology is compounded by his tinnitus and bilateral hearing loss. See September 2016 Board Hearing transcript, pgs. 3-4, 15 &16. For the reasons explained below, the Board finds that entitlement to TDIU for the entire period on appeal is warranted. The Veteran is service connected for the following: PTSD at 50 percent from December 28, 2007, 100 percent from May 6, 2013, and 50 percent from July 1, 2013; tinnitus at 10 percent from December 28, 2007; burn scars to include the neck at 10 percent from December 28, 2007; ruptured tympanic membrane at a noncompensable rating from July 15, 1986; hearing loss at a noncompensable rating from December 28, 2007; lightning strike to the scrotum at a noncompensable rating from December 28, 2007; and burn scars to include the chest at a noncompensable rating from December 28, 2007. (The Board is cognizant of the grant of service connection for the residual scar at the base of the nose and this disability is not yet rated.) To date, the Veteran has combined ratings of 60 percent from December 28, 2007, 100 percent from May 6, 2013, and 60 percent from July 1, 2013. Preliminarily, the issue of entitlement to TDIU for the period from May 6, 2013 to July 1, 2013 is moot because the Veteran has a 100 percent schedular rating for PTSD. Though VA is required to maximize benefits, the remaining service-connected disabilities are insufficient to meet the schedular criteria for TDIU for this specific period. See Bradley v. Peake, 22 Vet. App. 280, 294(2008). For the remainder of the appeal period from July 13, 2009 to May 6, 2013 and from July 1, 2013 up to the Veteran's death in February 2020, combined ratings do not meet the §4.16 (a) schedular criteria for TDIU. Extraschedular Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU 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. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). As referenced in the introduction of this decision, in its September 2017 remand, the Board referred the Veteran's claim to the VA Director of the Compensation Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16 (b). The Director of Compensation Service considered whether extraschedular consideration was warranted in a September 2021 decision and determined that individual unemployability benefits were not warranted. See September 16, 2021 Correspondence. In that regard, the Director found that while the Veteran had limitations caused by his service-connected conditions, the cumulative evidence did not support that any service-connected condition alon or in conjunction would have precluded all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. See September 16, 2021 Correspondence. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16(b)). The Director's decision is not evidence, but, rather, the de facto agency of original jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require it to award an extraschedular rating. Ray v. Wilkie, 31 Vet. App. 58 (2019). Consequently, as the claim has been denied on an extraschedular basis by the Director of Compensation Service, the Board may now consider whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (b). In determining whether the Veteran can "secure and follow" such employment, attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. Id. Consideration may not be given to the Veteran's age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. § §§ 3.341, 4.16, 4.19. A disability rating, itself, is recognition that industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. at 363. Indeed, according to 38 C.F.R. §§ 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Id. Moreover, for entitlement to an extraschedular TDIU specifically (as is the case here), the Veteran's service-connected disabilities must present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination, is not contemplated within the relevant rating criteria. Discussion The Veteran's VA Form 21-8940 Application for TDIU was received in July 2009. The record shows that the Veteran has been unemployed since November 2008. See April 15, 2010 VA Form 21-4192 and October 5, 2009 VA Form 21-4192 (Request for Employment Information). The Board notes that the Veteran's VA Form 21-8940 states that he last worked full-time in October 2009. Significantly, the Veteran's VA Form 21-8940 indicates that he previously worked as a mechanic (55 hrs. per. week), counselor (65 hrs. per week) and restaurant work (60 hrs. per week). On his VA Form 21-8940, the Veteran reported his time lost from illness in each position: mechanic (time lost: 2 months); counselor (time lost: 6 months); restaurant work (time lost: 3 weeks). The Veteran indicated that his highest level of education, in addition to high school, was one year of college. The Veteran obtained a certification in turf management. See Veteran's July 13, 2009 VA Form 21-8940 (dated June 29, 2009). The Veteran testified at his Board Hearing he stopped working in 2008 due to depression, not wanting to get out of bed or to have anything to do with anybody. The Veteran testified that he could not get along with anyone. The Veteran testified that he would get into get into altercations with coworkers. See September 2016 Board Hearing transcript, pgs. 7-9. VA and private treatment records indicate that the Veteran was treated frequently for symptoms of his service-connected PTSD. In that regard, there is evidence that he sought both emergency and non-emergency treatment for symptoms of PTSD in November 2008. See November 16 & November 17, 2008 treatment records. PTSD and Hearing Loss and Tinnitus examinations In an October 2008 PTSD examination, the VA examiner opined that the Veteran's psychiatric disability did impact his ability to work. The VA examiner reported that the Veteran has had a history of polysubstance abuse history since having been struck by lightning and PTSD symptom complex. The examiner reported that the Veteran left his paying job one day ago. See October 31, 2008 PTSD examination, pgs. 9-10. In an October 2009 Review Evaluation for PTSD, the examiner reported that since the last compensation and pension examination (October 31, 2008), the Veteran continues to have significant difficulties in his interpersonal relationships. The examiner reported that the Veteran has continued difficulty related to work. The examiner also noted that the Veteran finds it difficult to work due to the multiple appointments he has related to receiving treatment at the VA (requires multiple trips to the VA on a weekly basis). See October 31, 2009 PTSD Review Evaluation, pgs. 8-9. The PTSD examiner reported that the Veteran has substance dependence diagnoses that are in early full remission. The examiner reported that the Veteran's substance abuse is a reaction to PTSD. The examiner reported that the Veteran's current functional impairments are not stemming from his substance use disorders, they are from his diagnosis of PTSD. The examiner reported that the Veteran's substance abuse disorders are related, caused by and exacerbated by his diagnosis of PTSD. Id. at pgs. 8-9. With respect to his service-connected hearing loss and tinnitus, an October 2009 VA examiner opined that the Veteran's service-connected hearing loss and tinnitus in isolation would not preclude the Veteran from obtaining and maintaining gainful employment under normal circumstances; however, the Veteran's psychosocial history of depression and suicidal ideation would be magnified by hearing loss and tinnitus. The examiner explained that hearing loss alone can cause one to feel isolated. Constant tinnitus is a stress that can be difficult to control. The examiner explained that the diagnoses could contribute to the Veteran's underlying psychosocial structure, making it somewhat more difficult, but not impossible to obtain and maintain gainful employment. See October 22, 2009 VA examination, pgs. 4-5. See also, October 5, 2009 VA examination re: Veteran's medication regime may decrease chances for gainful employment, pg. 2. See also September 2016 Board Hearing transcript re: testimony on irritability due to tinnitus, pgs. 15-16. Evidence submitted by the Veteran In an October 2016 PTSD Disability Benefits Questionnaire (DBQ) submitted by the Veteran, a private psychologist determined that the Veteran's disability picture was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The Veteran was diagnosed with PTSD, Bipolar II Disorder and short-term memory loss. The October 2016 psychologist indicated that it was not possible to differentiate what symptoms are attributable to each diagnosis. The psychologist reported that the Veteran was not able to hold a job or maintain significant relationships. The psychologist reported that the Veteran has had several hospitalizations at Mental Health in-patient facilities since 1999 for suicidal ideation and attempts. See October 28, 2016 PTSD Disability Benefits Questionnaire (dated October 13, 2016), pgs. 1-4 (F.J.S III., Ph.D. P.A.) In pertinent part, the October 2016 psychologist further explained that the literature states that "moderate lightning injuries may cause lifelong symptoms of brain injury, chronic pain, irritability, sleep disorders, which also seems to match the Veteran's complaints. The Veteran has short-term memory, and he has severe anger problems. He has the symptoms of PTSD, hyper-vigilance, started responses, nightmares, inability to cope and deal with other people, easily frustrated, irritable, verbal abuse, past suicidal ideations, with no current plans to carry out such thoughts. He has not been able to keep a job or long-term relationships. The Veteran has not been able to work since 2008. He avoids social interactions. He is highly suspicious of other people and does not like to interact with them. His mental problems affect his ability to earn a living and a have a long-term relationship with his paramour." See October 28, 2016 Correspondence-Psychological Evaluation (F.J.S III., Ph.D. P.A.) Vocational Assessment In May 2018, the Veteran submitted a Vocational Assessment by a vocational expert in support of his claim. After review of the Veteran's claim file, medical records VA examinations and statements, the Vocational expert concluded that it is more likely than not that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected PTSD, beginning in 2008, when he last worked. The combination of symptoms resulted in an inability to attend basic work functions and result in him being unable to maintain a substantially gainful occupation from 2008 to the present. See May 2, 2018 Vocational Assessment, pgs. 1-8 (C.E., MRC, CRC). Analysis Based on the record, the Board concludes that an extraschedular TDIU for the entire period on appeal is warranted. Although the Veteran does not meet the threshold criteria for a TDIU during the appeal period, the evidence of record does reflect an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization due to service-connected disabilities. With respect to an exceptional or unusual disability picture, the Board observes that the October 2016 private psychologist reported that the literature states that moderate lightning injuries may cause lifelong symptoms of brain injury, chronic pain, irritability, sleep disorders, which also seems to match the Veteran's complaints. The psychologist concluded that the Veteran has not been able to keep a job or long-term relationships. See October 28, 2016 Correspondence (F.J.S III., Ph.D. P.A., M.T.S, Ph.D., LMHC); See also, May 2, 2018, Vocational Assessment pgs. 7-9 re: combination of symptoms result in an inability to attend basic work functions. With respect to marked interference with employment, the Board observes that VA and private treatment records show that the Veteran has had frequent medical visits or hospitalizations since 1999 with respect to his service-connected PTSD (suicide ideation and attempts). See October 28, 2016 PTSD Disability Benefits Questionnaire (dated October 13, 2016), pgs. 1-4; See also, November 16 & November 17, 2008 inpatient treatment records; See also, May 6, 2013 inpatient treatment records; See also, Veteran's July 13, 2009 VA Form 21-8940 (lost time from work due to illness). While there is evidence of record that the Veteran was seen and treated for substance use disorders (non-service connected) during the course of this appeal, the Board notes that the October 2009 PTSD examiner reported that the Veteran's substance abuse is a reaction to his PTSD. See October 31, 2009 PTSD Review Evaluation. Hence, the Board finds that there is sufficient evidence to attribute the Veteran's frequent medical visits and hospitalizations to his service-connected PTSD disability. (Continued on next page.) In conclusion, the Board finds that the Veteran's service-connected PTSD presents an unusual or exceptional disability picture during the course of this appeal and in combination with his service-connected bilateral hearing loss and tinnitus, preclude him from maintaining gainful employment. Resolving doubt in favor of the Veteran, the claim of entitlement to TDIU on an extraschedular for the entire period on appeal (exclusive of the period during which the Veteran is in receipt of a temporary total rating for his PTSD) is granted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, Associate 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.