Citation Nr: 21031957 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-00 702 DATE: May 25, 2021 ORDER Service connection for bilateral tinnitus is granted. Service connection for bilateral hearing loss is granted. Service connection for a lumbar spine disability is granted. An initial rating of 70 percent for the service-connected posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to the service-connected PTSD and as due to exposure to in-service exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. The Veteran began experiencing symptoms of his current bilateral tinnitus while in service, and he has continued to experience such symptomatology since separation from service. 2. The Veteran began experiencing symptoms of his current bilateral hearing loss in service and has continued to experience such symptomatology since then. 3. The Veteran began experiencing symptoms of his current lumbar spine disability in service and has continued to experience such symptomatology since then. 4. Throughout the course of the appeal, the Veteran's service-connected PTSD has resulted in occupational and social impairment with deficiencies in most area. 5. Throughout the period on appeal, the Veteran has met the schedular criteria for a TDIU, and the evidence is at least in equipoise as to whether he has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, alone. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an initial 70 percent rating for the service-connected PTSD are met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. 5. The criteria for a TDIU are met from throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to February 1971. In August 2020, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the Board of Veterans' Appeals (Board) finds that, in light of the Veteran's August 2020 Board testimony that he has not been able to work due to his service-connected PTSD, the issue of entitlement to a TDIU is raised by the record, is part and parcel of the higher rating claim on appeal, and is thus properly before the Board. Service Connection Bilateral Tinnitus, Bilateral Hearing Loss, and a Lumbar Spine Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis and organic diseases of the nervous system, which includes tinnitus and bilateral hearing loss, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran seeks service connection for bilateral tinnitus, bilateral hearing loss, and a lumbar spine disability. A May 2017 VA back examination report shows that he has a current diagnosis of degenerative arthritis of the lumbar spine, and a December 2016 VA hearing loss and tinnitus examination shows that he has current diagnoses of bilateral hearing loss and tinnitus. As such, the current disability prongs of these claims are met, and the remaining issue is whether the current disabilities can be related to any in-service event or whether they onset therein. The Veteran testified at the August 2020 hearing that he has experienced, and continues to experience, symptoms of his current, tinnitus, hearing loss, and lumbar spine arthritis since service. The Board finds the Veteran's testimony as to the onset of his symptoms to be credible, and his testimony alone is sufficient to establish the criteria for service connection for these claims. As such, his claims for service connection for tinnitus, bilateral hearing loss, and a lumbar spine disability are allowed, as they are all chronic conditions for which a continuity of symptomatology has been shown since active service. The Board recognizes that the December 2016 VA hearing loss and tinnitus examiner opined that the Veteran's tinnitus and hearing loss were less likely than not caused by, or are a result of, his service. Further, May 2017 VA back conditions examiner opined that the Veteran's lumbar spine arthritis was also less likely than not related to the Veteran's active service. However, while the Board cannot ignore or disregard the VA examiners' medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The December 2016 hearing loss and tinnitus examiner's rationale did not consider the Veteran's reports of the onset of his hearing loss and tinnitus symptoms. Further, the examination report does not even state that the Veteran was asked about the onset of his symptoms. As the Veteran's lay statements regarding the onset and history of his hearing loss and tinnitus symptoms were not considered in rendering the negative nexus opinion, the Board affords the opinion minimal, if any, probative weight, as it did not consider all relevant evidence. The May 2017 VA back examiner's rationale did not consider the Veteran's report on examination that his lower back has been painful since active service. Rather, the examiner noted that the Veteran had told a VA treatment provider in May 2016 that his back pain began 10 years prior. Questions of fact are to be determined by the adjudicators, not VA examiners. Thus, the examiner implicitly made a determination that one statement was more probative than the other, and did not address the Veteran's lay reports of his pain having onset during active service. Because no medically based rationale was given as to why the Veteran's lumbar spine symptoms were more likely to have onset around 2006 than during his service, the Board also afford this opinion minimal, if any, probative weight. The Board finds the Veteran's competent, credible reports of his bilateral tinnitus, bilateral hearing loss, and lumbar spine disability symptoms having onset in active service to be more probative than the 2016 and 2017 VA examiners' negative nexus opinions which did not address all relevant evidence. The weight of the evidence supports a finding that his bilateral hearing loss, bilateral tinnitus, and lumbar spine disability symptoms onset in service and have continued since then. Thus, service connection for bilateral tinnitus, bilateral hearing loss, and a lumbar spine disability is warranted, as they are current disabilities that onset in active service. Increased Rating PTSD When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two ratings are potentially applicable, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board considers whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A May 2017 rating action granted the Veteran service connection for PTSD and awarded an initial compensable evaluation of 50 percent, effective September 20, 2016, (the date he filed his service connection claim). The Veteran disagrees with the assigned 50 percent rating for his psychiatric disorder and asserts that a higher initial rating is warranted. Specifically, as noted in his January 2018 notice of disagreement, he seeks a rating of 70 percent for his PTSD. The Board finds that an initial rating of 70 percent for the Veteran's PTSD is supported by the record. Given that the Veteran limited his appeal to seeking a rating of 70 percent, this determination constitutes a full grant of the benefit sought on appeal for this claim. The Veteran's service-connected psychiatric disorder has been rated under the General Rating formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under these criteria, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 interfering 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/maintain effective relationships. Although not sought by the Veteran, the Board also notes that a 100 percent rating is warranted where 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 or place; memory loss for names of close relatives, own occupation, or own name. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). With regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). DSM-V is applicable in the instant case. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio, 713 F.3d at 118. It is the impact of the symptoms on occupational and social functioning that determines the rating. The Veteran's case has been considered entirely under the VA rating schedule contained in 38 C.F.R., Part 4. Affording the Veteran the benefit of the doubt, throughout the appeal period, the Veteran's acquired psychiatric disability has caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran underwent a VA examination to assess the severity of his psychological symptoms in November 2016, the report of which details the Veteran experiencing symptoms mainly which support a 50 percent rating. However, the Board finds the most probative evidence of record to be the August 2020 written statements that the Veteran submitted by his VA psychiatrist M.R., MD, and his VA psychologist, F.H., PhD, who noted they had been treating the Veteran for several years, dating back to November 2016. As such, these providers have had regular interactions with the Veteran over several years of the appeal period, as compared to the single interaction of the November 2016 VA examiner. Their letters provide sufficient evidence to show that the Veteran's PTSD has caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Specifically, they stated that the Veteran's PTSD symptoms have included suicidal ideations; unprovoked irritability; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. The Veteran also testified before the Board in August 2020 that he experiences non-stop panic in addition to those symptoms noted by his VA psychiatric providers. All of these symptoms of the Veteran's PTSD support a 70 percent rating. Although the Veteran is not seeking a 100 percent disability rating for his PTSD, the Board notes that such is not supported by the evidence of record, and neither the Veteran nor his representative have argued otherwise. At no time has he reported experiencing symptoms of 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. In light of the above, although there is evidence in favor of both a 50 percent rating and in favor of a 70 percent rating for the Veteran's service-connected PTSD, if two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Thus, the higher 70 percent rating for the Veteran's psychiatric condition is warranted throughout the entirety of the appeal period. TDIU The Veteran contends that his service-connected disabilities, specifically, his PTSD, have rendered him unable to secure or follow a substantially gainful occupation. In this regard, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). "Marginal employment," as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income." Other factors considered in determining whether a veteran is unemployable are his level of education, employment history, and his vocational attainment. Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. 38 C.F.R. § 4.16(a). Additionally, where the percentage requirements are not met, entitlement to the benefits 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). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. During the period on appeal, the Veteran has been service-connected for more than one disability, with one ratable at 40 percent or more and a total combined rating to at least 70 percent. Although the ratings for the conditions for which service connection has been granted herein are not yet known, the ratings currently assigned to his service-connected PTSD (70 percent disabling throughout the appeal period, i.e., from September 20, 2016) and his service-connected erectile dysfunction (rated noncompensable from October 27, 2016), alone, show that the schedular criteria of 38 C.F.R. § 4.16(a) for TDIU have been met throughout the period on appeal. The Veteran's combined rating has been at least 70 percent for the entire period on appeal, even for the few weeks at the beginning of the appeal period when he was only service-connected for PTSD. With regard to the question of whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service connected disabilities during the period on appeal, the Board finds that the evidence warrants the conclusion that he was indeed unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Thus, a TDIU is warranted. The Veteran testified before the Board that he last worked full-time as a warehouse manager, but was fired for threatening an employee. He had worked part-time after that, but he was last employed in 2014, prior to the appeal period. The August 2020 written statement from Dr. F.H., who was previously noted as having treated the Veteran for several years, included an opinion that the Veteran is unemployable. He noted that the Veteran would like to continue working, but the severity of his PTSD symptoms caused unprovoked irritability, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships, which made him unable to be employed. The Veteran had held 12 different jobs, and was frequently fired due to problems with irritability, anger, and resultant inability to get along with fellow workers or supervisory staff. Further, the 2016 VA PTSD examination report also noted that the Veteran's work history in his later years indicated an increasing difficulty in effectively interacting with others. He had once been fired for creating a "hostile" environment. Notably, the examination report did not provide an opinion as to whether the Veteran's psychiatric symptoms impacted his ability to work. As such, there is no medical opinion of record which states that the Veteran is employable. Thus, there is nothing in the record to contradict the opinion from Dr. F.H. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities render him unable to follow a substantially gainful occupation. The Board resolves any reasonable doubt in the Veteran's behalf and finds that a TDIU is warranted. This claim is, thus, granted. REASONS FOR REMAND Service connection for hypertension, to include as secondary to the service-connected PTSD and as due to in-service exposure to herbicide agents The Veteran seeks service connection for hypertension and asserts that it is secondary to his service-connected PTSD. Because the Veteran originally claimed this condition as secondary to a heart condition, the Regional Office did not afford him a VA examination to determine the etiology of his hypertension because service connection for his heart condition was denied. The Board finds that a VA examination is needed to address his current contentions of his hypertension being secondary to his PTSD before it can decide this claim. Further, the National Academy of Science (NAS) recently released a report entitled Veterans and Agent Orange: Update 11 (2018), wherein it stated that the NAS found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. This report upgraded the association from its previous classification of having "limited or suggestive" evidence to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The Veteran, having served in the Republic of Vietnam during the Vietnam era, is presumed to have been exposed to Agent Orange in service. No medical opinion currently associated with the claims file has addressed the possibility that the Veteran's hypertension was caused by his presumed herbicide agent exposure. As such an opinion on this matter is also necessary. Accordingly, this matter is REMANDED for the following actions: Schedule the Veteran for an appropriate VA examination to address the etiology of his hypertension. The examiner should review the Veteran's claims file, including his medical records, the August 2020 Board hearing testimony, and this Remand, and respond to the following: (a.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension was caused by his service-connected PTSD? (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension was aggravated (i.e., made worse) by his service-connected PTSD? If so, the examiner should identify the degree of impairment that is due to such aggravation. (c.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension was caused by his in-service exposure to herbicide agents? In rendering this opinion, the examiner should consider the NAS 2018 conclusion that hypertension has been upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.