Citation Nr: 21015573 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-06 973 DATE: March 17, 2021 ORDER Service connection for tinnitus is granted. A 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s tinnitus at least as likely as not related to active service. 2. Throughout the appeal period, the Veteran’s PTSD manifested by occupational and social impairment, with deficiencies in most areas but does not more closely approximate total occupational and social impairment. 3. Throughout the appeal period, the Veteran’s PTSD precluded him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for a 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3,321, 4.1-4.7, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to April 1972 in the U.S. Army. This matter comes before the Board of Veterans’ Appeals (Board) from October 2010 and October 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In November 2017, the Board denied the Veteran’s claims for service connection for tinnitus and entitlement to a higher rating for PTSD. The Veteran appealed the Board’s denials to the United States Court of Appeals for Veterans Claims. In a June 2020 Joint Motion for Partial Remand, the Court vacated and remanded the November 2017 Board decision regarding the issues of entitlement to service connection for tinnitus and an evaluation in excess of 50 percent for PTSD. In February 2017, the Veteran and his wife testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A copy of the hearing transcript is of record. In October 2020, the Veteran was notified that the VLJ who conducted the February 2017 Board hearing was no longer employed by the Board and that he had a right to another Board hearing. He was given 30 days to respond. As no response was received, the Board assumes that the Veteran does not desire another Board hearing. Service Connection for Tinnitus The Veteran contends that his tinnitus is related to military service. The Board concludes that the Veteran has a current tinnitus disability that is related to noise exposure in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 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. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board finds that the first two elements have been satisfied. The Veteran has a current disability of tinnitus, a disability capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). He has competently and credibly reported current tinnitus symptoms. Additionally, the Board finds that the Veteran was exposed to acoustic trauma during active service. The Veteran’s military occupational specialty (MOS) as noted on his DD-214 was vehicle mechanic. The Veteran competently and credibly stated that while he served in Vietnam, he was responsible for escorting convoys in the central highlands and constantly fired 50 caliber machine guns and was exposed to truck engines and small arms fire. See October 2020 Correspondence; see also February 2016 Appellate Brief. Regarding the third element, nexus, the evidence consists of medical evidence and the Veteran’s lay statements. The Veteran stated that he has had tinnitus since he separated from service. See October 2020 Correspondence. The Board finds the Veteran’s statements both competent and credible as they are consistent with the medical evidence of record. Layno v. Brown, 6 Vet. App. 465 (1994). The Board notes that the Veteran was afforded a VA examination in September 2010, however the examination is inadequate because it relied on an inaccurate factual background. Accordingly, the examination will not be considered. In April 2018, the Veteran submitted a private opinion from an audioprosthologist. The audioprosthologist opined that the Veteran’s tinnitus is related to his military service. The rationale stated that the during service, the Veteran fired 50 caliber weapons every day, noticed ringing in his ears while in service, and has had tinnitus since service. Based on the foregoing, the Board finds the evidence is at least in relative equipoise as to whether his current tinnitus is related to service. Resolving reasonable doubt in the Veteran’s favor, service connection for tinnitus is granted. Increased Rating for PTSD The Veteran contends that a higher rating is warranted for his service-connected PTSD. He has been assigned a 50 percent rating since November 25, 2003 pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pursuant to the General Rating Formula, a 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted for 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 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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; memory loss for names of close relatives, own occupation, or own name. After review of the record, the Board finds that the Veteran’s PTSD warrants a 70 percent rating throughout the period on appeal. The Board finds that the Veteran has had occupational and social impairment, with deficiencies in most areas, including work, family relations, and mood. The Veteran was afforded a VA examination for his PTSD in September 2012. The examiner noted that the Veteran’s PTSD symptoms included intrusive and unwanted thoughts that have become more prevalent, avoidance, restlessness, anhedonia, limited involvement with others, insomnia, and mild hypervigilance in public settings. The examiner noted that the Veteran’s depressive symptoms include disturbances of sleep, feelings of fatigue, negative self-evaluation, and lack of energy and motivation. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity and noted that the Veteran experiences PTSD symptoms in the mild to moderate range, including depressed mood, anxiety, and disturbances of motivation and mood. In May 2015, the Veteran reported that he has had suicidal thoughts, but no concrete plans. See VA Treatment Records received April 2018. During the February 2017 Board hearing, the Veteran testified that he has trouble sleeping, he does not like being around people, he dreaded going to the hearing, he is spending more time with himself, and wants to stay outside and work on his farm to be by himself. Additionally, the Veteran testified that he does not see anyone often, including friends and family, and is irritable with his wife. The Veteran also testified that he does not have any friends, except for a few acquaintances. He testified that he sees his children and grandchildren during holidays. The Veteran’s wife testified that she worries more about the Veteran. She testified that the Veteran eats one meal per day, usually around 9:30 at night, two hours after she cooked. She further testified that he is usually outside all day doing stuff around the farm. In an October 2020 Private Vocational Opinion, the vocational expert noted that the Veteran had a verbal altercation with his neighbor, avoids interaction with his wife by staying outside while she is inside their home, prefers to be alone and isolated, and avoids going out in public due to anxiety, hypervigilance, paranoia, irritability, and anger. When considering the frequency, severity, and duration of the Veteran’s symptomatology and when resolving all reasonable doubt in his favor, the Board finds that the evidence shows that his PTSD caused social and occupational impairment with deficiencies in most areas. The Veteran experienced symptoms causing isolation that affected his ability to work with others and his relationships with his family and others. Additionally, the Board notes the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board acknowledges that the evidence of record does not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list but serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the Board finds that there is occupational and social impairment with deficiencies in most areas sufficient to warrant a 70 percent rating, even though all of the specific symptoms listed for a 70 percent rating are not manifested. Consideration has been given to assigning a higher rating for the Veteran’s service-connected PTSD, however at no time has the Veteran endorsed PTSD symptoms which rise to the level of a 100 percent rating. The medical records of evidence do not show that he was found to have gross impairment, grossly inappropriate behavior, persistent danger of hurting oneself or others, inability to perform activities of daily living, disorientation, or memory loss. Thus, the evidence of record does not support a rating higher than 70 percent at any point during the period on appeal. Accordingly, the Board finds that a rating of 70 percent rating, but no higher, for PTSD is warranted effective March 19, 2012, the date that VA received the Veteran’s claim for an increased rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU The Veteran contends that he is unemployable due to his PTSD. 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 central inquiry in 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 Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.16, 4.19. Throughout the appeal period, the Veteran was service connected for PTSD and tinnitus. As decided above, the Veteran is rated at 70 percent for PTSD since March 19, 2012. Accordingly, the Veteran has met the schedular criteria for a TDIU. The evidence of record shows that the Veteran worked from 1972 to 1983 as a lineman for a utility company. Thereafter, he worked as a truck driver until 1985. During the period on appeal, the Veteran was self-employed at his farm and gradually sold his farm equipment until 2018. Governing regulation provides that marginal employment shall not be considered substantially gainful employment. For these purposes, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a fact found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Based on the evidence of record, the Board finds that the Veteran’s self-employment at his farm was marginal throughout the period on appeal. Notably, the Veteran’s income only exceeded the poverty threshold in 2017, however during this time he sold his farm equipment. See October 2020 Income Tax Statements; see also October 2020 Third Party Correspondence. Moreover, he remained mostly isolated on his farm and was not very productive due to his PTSD. See e.g., October 2020 Third Party Correspondence. Regarding functional impairment of the Veteran’s service-connected disabilities, the evidence of record shows that the Veteran has had consistent impairment of his occupational capabilities due to his PTSD. During the September 2012 VA examination for the Veteran’s PTSD, the examiner stated that the Veteran’s PTSD and depression would mildly to moderately impair his ability to work in either sedentary or physical employment settings due to symptoms of unwanted and intrusive thoughts, anhedonia, his desire for limited involvement with others as well as mild symptoms of hypervigilance in particular public settings, disturbances of sleep, feelings of fatigue, negative self-evaluation, and lack of energy and motivation. In December 2010 and February 2013, a psychiatrist noted that the Veteran was unemployable due to his PTSD. See VA Treatment Records received March 2011 and June 2013. In October 2020, a private vocational expert opined that it is more likely than not that the Veteran has been unable to secure and follow substantially gainful employment since at least March 2012 due to his PTSD. The expert reviewed the Veteran’s file and conducted an interview. The expert noted that the Veteran experiences irritability and anger, poor concentration, anxiety, paranoia, hypervigilance, depression and low energy, impaired sleep and nightmares, isolation and avoidance, and difficulty working with others. The private vocational expert explained that the Veteran would be unable to maintain concentration, persistence, and pace for at least 2 hours at a time due to his impaired focus, fatigue, hypervigilance, anxiety, and paranoia, and would be off task more than 10 percent of a workday. Additionally, the vocational expert explained that the Veteran would have difficultly carrying out tasks correctly and efficiently and he would be an unreliable and unproductive employee. Moreover, the vocational expert explained that the Veteran has significant impairment in his ability to interact appropriately and effectively with other people, which would preclude both physical and sedentary work. The Board finds the October 2020 private opinion highly probative because the vocational expert considered the totality of the functional limitations of the Veteran’s service-connected PTSD and compared his limitations with the standard requirements of employment in both sedentary and physical employment. Additionally, the opinion is well-reasoned, based on complete review of the Veteran’s claims file, and consistent with the other evidence of record. Based on the foregoing, the Board finds that entitlement to a TDIU is warranted. Resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s PTSD has prohibited and continues to prohibit the Veteran from obtaining and maintaining substantially gainful employment. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.