Citation Nr: 21021355 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-02 880 DATE: April 12, 2021 ORDER Entitlement to service-connection for bilateral hearing loss is denied. Entitlement to a 100 percent disability rating for service-connected posttraumatic stress disorder with secondary alcohol and cannabis dependence (hereinafter “PTSD”) from November 16, 2020 is granted. Entitlement to a disability rating in excess of 50 percent prior to November 16, 2020, for service-connected PTSD is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from November 16, 2020 is dismissed. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 16, 2020, on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the bilateral hearing loss disability began during active service, or is otherwise related to an in-service event, injury, or disease. 2. From November 16, 2020, and after resolving all doubt in his favor, the Veteran’s service-connected PTSD more nearly approximated total occupational and social impairment. 3. Prior to November 16, 2020, the Veteran’s service-connected PTSD more nearly approximated reduced reliability and productivity. 4. From November 16, 2020, the issue of entitlement to a TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating of 100 percent for service-connected PTSD from November 16, 2020 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for a disability rating in excess of 50 percent for service-connected PTSD prior to November 16, 2020 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 4. The issue of entitlement to a TDIU is moot from November 16, 2020. 38 U.S.C. § 7104; 38 C.F.R. § 20.101 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from February 1966 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013, May 2014, and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently remanded in January 2020, and now returns for further adjudication. Service Connection for Hearing Loss Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has a current hearing loss disability. See December 2020 VA Examination. Thus, the remaining question is whether the current hearing loss disability is related to service. Service treatment records show no complaints, diagnosis, or treatment related to a hearing loss disability. As the Veteran reported other ailments during service, and hearing problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with hearing loss during service the Board would expect that he would have reported these problems to medical professionals. During the February 1968 separation examination, evaluation of the ears was normal. In a corresponding report of medical history, the Veteran specifically indicated that he had not experienced ear, nose, and throat trouble. Medical examiner notes indicate the report of medical history was reviewed and determined to be of no clinical significance. Furthermore, the Board notes the Veteran was seen in January 1968, 12 days before his separation examination for tonsilitis. A concurrent audiology examination was conducted to find the Veteran’s hearing was within normal ranges. See February 1968 Separation Examination. A hearing loss disability is not shown by medical evidence until approximately October 2005, many years after the Veteran’s separation from service. A VA medical opinion was obtained in September 2019. The examiner opined that the Veteran’s hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In rendering the opinion, he noted that the enlistment and separation examinations revealed normal hearing with slight improvement at the time of separation and that hearing loss was not listed as part of the Veteran’s initial claims. The examiner acknowledged that there was noise exposure in service, but reiterated that the hearing examinations did not show changes in his hearing during service. He also indicated that the Veteran worked in many jobs with noise exposure after his military service and stated that there is no data to support hearing loss being caused by his military service. Therefore, the examiner concluded that the Veteran’s hearing loss is less likely than not a result of his military service and is instead consistent with presbycusis and noise exposure after service The Veteran presented for an additional VA examination in December 2020. The examiner opined that the Veteran’s hearing loss was less likely than not caused by or a result of an event or injury in military service. In support of this conclusion, the examiner explained that while the Veteran was exposed to hazardous noise in service, the Veteran conceded that he was exposed to hazardous noises for many years after his service in other occupations, such as truck driving. The examiner opined that there was no scientific basis for determining hearing loss onset after service, noting that the Veteran conceded hearing loss had recently occurred within the past 15 years. The examiner also noted the Veteran informed him of occupations after service as a truck driver and cabinet maker where the Veteran admitted to not wearing hearing protection and being exposed to loud noises. The Board finds these opinions highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other evidence of record. For example, the Veteran complained of onset of hearing loss and tinnitus for 10 years in 2005, noting noise exposure as a cabinet maker, forklift driver for 20 years, and truck driver for 15 years, in addition to operating lawn care equipment. See October 2005 VA Treatment Note. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. The Board has considered the Veteran’s statements, to include his assertions that his exposure to weapons fire at target practice, explosions, and mortars led to his hearing loss. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., difficulty hearing; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. An Increased Rating for PTSD The Veteran filed a claim for an increased rating for his PTSD in September 2011, which was rated as 50 percent disabling at the time. Although the rating was continued in the March 2013 rating decision on appeal, an increased, 70 percent rating was recently awarded from November 16, 2020. As higher ratings are available during these now staged periods on appeal, the claim for an increased ratings remains on appeal. The Veteran’s PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 50 percent rating is warranted when there is 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). At the outset, and after resolving all doubt in his favor, the Board concludes that the Veteran’s PTSD has more nearly approximate the level of impairment required for a disability rating of 100 percent from November 19, 2020. VA treatment records, the November 2020 VA examination (the basis for his 70 percent rating), and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 100 percent rating (e.g., gross impairment of thought process or communications, persistent delusions or hallucinations, grossly inappropriate behavior). The Veteran also had symptoms that are not listed with a specific rating, such as alcohol dependence related to his PTSD. These symptoms more nearly approximate total social and occupational impairment for the reasons that the Veteran was not using the bathroom and having accidents on the floor of his house, not showering or maintaining minimum hygiene care, having a history of seeing people and moving about his house moving his hands to shoot at them and shouting at people. The Board recognizes that the November 2020 VA examination attributed the Veteran’s cognitive skill loss more to dementia and stroke, however the examiner did not appear to account for the alcohol use, as the examiner noted the Veteran was in alcohol remission. Further, the Board takes into consideration the assessment that the dementia was likely onset, in part, due to the Veteran’s alcohol use, which must be considered when evaluating the Veteran’s PTSD with alcohol dependence. As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating is warranted. Prior to November 19, 2020, however, the Board finds the evidence is against a rating higher than the 50 percent rating currently assigned. VA examination afforded to the Veteran during this period in January 2011, October 2012, February 2016, and May 2016. Each examination report noted the Veteran’s diagnosis of PTSD with associated alcohol dependence and its manifested symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, impairment of short- and long-term memory, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene. While the Bord acknowledges that the February 2016 examination also notes neglect of personal appearance and hygiene as a symptoms at the time, behavioral observations during the examination do not suggest that the Veteran had issues with appropriate attire and grooming or any poor hygiene habits. The examination the following May 2016 is negative for any personal appearance or hygiene issues. Further, none of the above examinations noted delusions or hallucinations, or suicidal or homicidal plan or intent. For VA rating purposes, the examiners opined that the Veteran’s disability manifested at worst, occupation and social impairment with reduced reliability and productivity. The Veteran’s medical records as to his PTSD are not in significant conflict with the examination reports. Based on the foregoing, the Board finds the evidence of record is absent any indication that the Veteran’s disability during this appeal period has more closely approximated occupational and social impairment with deficiencies in most areas (the criteria for a higher, 70 percent evaluation), due to symptoms such as: 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. The Board acknowledges that the Veteran reported “fleeting” thoughts of suicidal ideation to the February 2016 VA examiner. The Board, however, finds this to be no more than passive suicidal ideation. Both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). When evaluating psychiatric disabilities, the Board considers the frequency, severity, and duration of suicidal ideations and the impact on the Veteran’s life, rather than limiting consideration to the intention to act. No caregivers or VA examiner has determined that he has had plans or committed any overt acts, and he specifically denied thoughts to harm himself or others to the VA examiner. Importantly, the evidence does not show the Veteran had any suicidal thoughts or ideation during this period on appeal that might have affected his functioning; that is, interfering with job performance, activities of daily living, routine activities, etc. In sum, while the Veteran’s symptoms may have includes occasional passive suicidal thoughts, this symptom has not affected his ability to function independently or created a deficiency in most areas of the Veteran’s life for the purposes of the next higher, 70 percent rating under the General Rating Formula for Mental Disorders. Moreover, even if the suicidal thoughts do represent suicidal ideation, the VA examiners considered these thoughts along with all the other symptomatology and still found that overall the disability was productive of no more than occupational and social impairment with reduced reliability and productivity. Not only did this opinion include consideration of the Veteran’s reports of passive suicidal ideation, but this particular level of occupational and social impairment is contemplated by the 50 percent rating assigned during this period under the rating criteria, and no medical professional described a level of impairment greater than that found by these VA examiners. The Board also acknowledges the Veteran’s reports of little social relationships. The Board does not find, however, that his reports indicate an inability to establish and maintain effective relationships for the purposes of a 70 percent rating as he reported good relationships with his spouse and family. While he may nevertheless have difficulty in establishing and maintaining effective work and social relationships, this is already contemplated for in the currently assigned 50 percent rating. Based upon the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 50 percent for the Veteran’s service-connected PTSD prior to November 16, 2020. Thus, the claim for an increased rating during that period must be denied. The Board is sympathetic to the Veteran’s lay statements that his PTSD was worse than currently evaluated prior to November 2020, and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. A TDIU prior to November 19, 2020 The Veteran asserts that his service-connected disabilities render him unemployable. In the instant decision, the Board has granted a 100 percent rating for PTSD from November 16, 2020. A TDIU may be assigned where the schedular rating is less than total and the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16(a). In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU rating predicated on one disability may be awarded if that disorder is not ratable at the schedular 100 percent level. However, a separate TDIU rating cannot be awarded based on one service-connected disability if the Veteran is already receiving a 100 percent schedular rating for that very disorder. Buie v. Shinseki, 24 Vet. App. 242 (2010). As of November 16, 2020, the Veteran has been granted a schedular rating of 100 percent for PTSD, herein. A review of the record shows that there is no evidence or argument that his only other service-connected disability of tinnitus, without regard to his PTSD, renders him unable to obtain or maintain gainful employment. Therefore, as the Veteran is in receipt of a schedular 100 percent rating for his PTSD from November 16, 2020, the findings in Bradley are not applicable in this case, and the issue of entitlement to TDIU from that date is dismissed as moot. REASONS FOR REMAND A TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran did not meet any of the above criteria at any point during the period on appeal prior to the Board’s above award of a 100 percent rating for PTSD. However, veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16(a), may receive extra-schedular consideration under 38 C.F.R. § 4.16(b). Significantly, the Board has no power to award a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) in the first instance without referring the claim to VA’s Director of Compensation Service (Director) for such consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular TDIU claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). Here, lay statements provided by the Veteran and the findings of multiple medical evaluations suggest that the combined effects of his PTSD and tinnitus had a significant impact on his employability. Accordingly, the Board finds that referral to the Director for consideration of an extraschedular TDIU is warranted. The matter is therefore REMANDED for the following actions: Refer the issue of entitlement to a TDIU prior to November 16, 2020 to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jarman, 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.