Citation Nr: 23019272
Decision Date: 03/29/23	Archive Date: 03/29/23

DOCKET NO. 18-50 978
DATE: March 29, 2023

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.

Service connection for an eye disorder is denied.

A disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied.

Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU) beginning August 21, 2021, is granted.

FINDINGS OF FACT

1. The Veteran does not have a bilateral hearing loss disability for VA purposes.

2. Affording the Veteran the benefit of the doubt, his diagnosed tinnitus was incurred in service.

3. The Veteran does not have a current eye disorder that was caused by or incurred in-service, or is otherwise related to service.

4. The Veteran's service-connected PTSD does not cause total occupational and social impairment.

5. Beginning August 21, 2021, the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.385.

2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.385.

3. The criteria for service connection for an eye disorder are not met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

4. The criteria for entitlement to a disability rating in excess of 70 percent, for the service-connected PTSD, are not met at any time during the period on appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9411.

5. Beginning August 21, 2021, the criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1989 to April 1992. 

This case is before the Board of Veterans' Appeals (Board) on appeal from May 2015 and August 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions.

The Board notes that the December 2013 claim identified he was claiming service connection for hearing loss.  Similarly, the May 2015 rating decision, subsequent Statements of the Case and Supplemental Statement of the Case, and the July 2019 Board decision all address service connection for hearing loss.  In November 2021, the Veteran's representative submitted argument indicating that the Veteran's initial filing of service connection for hearing loss should have been read by VA to encompass tinnitus as well.  The Board agrees, therefore, entitlement to service connection for tinnitus is address by this decision as well.    

Additionally, the Board has jurisdiction to consider entitlement to a TDIU as part of the underlying increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  In April 2022, during the pendency of this appeal, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.  Along with the form the Veteran also submitted a TDIU Vocational Assessment Report from a Vocational Rehabilitation Consultant.

Service Connection

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, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Additionally, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157.

1. Entitlement to service connection for bilateral hearing loss

The Veteran contends that he is entitled to service connection for bilateral hearing loss.

The Veteran has undergone two VA examinations in connection with the instant claim. Both examination reports reflect that the Veteran's current hearing loss is not of such severity as to constitute a bilateral hearing loss disability for VA purposes. Specifically, VA examination report Disability Benefits Questionnaires (DBQs) dated June 2017 and January 2020 show that the Veteran does not have auditory thresholds of 40 dB or greater at any frequency from 500 to 4,000 Hz in either ear; and, he does not have auditory thresholds of at least 26 dB at no less than three of the frequencies between 500 and 4,000 in either ear.

As a result, the Veteran does not have a hearing loss disability for VA purposes in either ear. The first element of the service connection claim is not met, such that there is no reasonable doubt to resolve in the Veteran's favor. The claim is denied.

2. Entitlement to service connection for tinnitus

The Veteran contends that he is entitled to service connection for his current tinnitus disorder, for it started very shortly after service and persisted.

The January 2020 diagnoses tinnitus and notes the date of onset as 1992 after the Veteran returned from the Gulf.  Similarly, in the November 2021 statement asserting service-connection for tinnitus it is noted "[t]he Veteran reports an onset of tinnitus in 1992, within month of his return from active duty."

The record also shows the Veteran's MOS is one with a high probability of hazardous noise exposure.  

As such, we have the first two elements of service connection a current diagnosis and an in-service injury. Now we turn to the third element a nexus linking the current diagnosis and in-service injury.   

The Veteran contends that his tinnitus shortly after service. Tinnitus is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board finds the Veteran's lay statements regarding the onset and continuity of his tinnitus to be both competent and credible. The Board acknowledges the January 2020 examiner providing a negative opinion on a relationship between tinnitus and service.  Additionally, the June 2017 audiologist examiner did not diagnose tinnitus.  Nevertheless, the Board finds that at worst the evidence for and against a nexus is in approximate balance.  Thus, a grant of service connection based on the continuity of symptomatology is warranted for tinnitus.

3. Entitlement to service connection for an eye disorder

The Veteran contends that he is entitled to service connection for an eye disorder. Specifically, he contends that exposures in-service caused him to have to wipe his eyes.

VA treatment records show that the Veteran takes eye medications on an as-needed basis for dryness of the eyes.

The Veteran had a VA examination in February 2020. The examiner reviewed the Veteran's VA e-folder. He reported dryness and wetness of the eyes which began in the year 2000. He reported using eye drops/artificial tears. A March 2017 VA treatment records noted in the report shows that the Veteran was treated for allergic conjunctivitis. The examiner noted that there was no current medical condition. In so finding, the examiner acknowledged the Veteran's reports of in-service exposures, and the DBQ makes clear that the Veteran was aware of the Veteran's unique reports concerning the onset and development, current symptomatology, and claimed link to service concerning the dry eyes. With this in mind, the examiner explained in clear language that the Veteran does not have a current eye disorder; thus, the Veteran does not have a current disability of the eyes that was caused by or incurred in-service, aggravated beyond natural progression by service, or which constitutes an undiagnosed illness. In light of the examiner's intimate understanding of the Veteran's unique medical history concerning the eyes, a review of the medical records in the Veteran's file, and a clearly-stated rationale in support of the opinion, the opinion carries substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of an opinion comes from its rationale or underlying reasoning). Notably, there is no probative evidence in the record to dispute the examiner's findings in that regard.

With the above in mind, the claim fails because the first element of the service connection claim (i.e. a current disability) is not met. There is no reasonable doubt to resolve in the Veteran's favor, and the claim is denied.

Increased Rating

4. Entitlement to a disability rating in excess of 70 percent for service-connected PTSD

The Veteran seeks an increased disability rating for service-connected PTSD, which is currently rated as 70 percent disabling, for the entire period on appeal, under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434-9411.

Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Id. 

A 100 percent rating is warranted when there is evidence of 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 name. Id.

Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Rather, the rating assigned must be based on a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013). However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level. Bankhead, 29 Vet. App. at 25.

In this case, three separate VA examiners reviewed the Veteran's medical records and examined him in person. In each case, the examiners determined that the Veteran's acquired psychiatric disorder caused a degree of impairment less than total. Specifically, a June 2017 VA examiner noted occupational and social impairment with reduced reliability and productivity. October 2019 and April 2020 VA examiners noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  

In each case, the examiner's findings were made with consideration for not just the Veteran's medical records, but also his lay reports at the examination. Each examiner discussed PTSD Diagnostic Criteria A through H, and identified the various symptoms attributable to the PTSD. The examiners noted their behavioral observations, and the VA examination report Disability Benefits Questionnaires (DBQs) show that the Veteran consistently exhibited thought processes, attention, concentration, and memory which was within normal limits. The Veteran denied suicidal or homicidal ideation (other than to report a suicide attempt in approximately 2000), and there was no evidence of psychosis.

Having reviewed the remainder of the medical evidence in the record, the VA examination findings are consistent with the greater body of medical and lay evidence of record. The examination findings were formed upon an accurate and detailed understanding of the Veteran's unique PTSD disability picture, and each examination report contains clear language such that the specific findings of each examiner are unequivocal. Without medical evidence to conflict with the findings of each examiner, the weight of the probative evidence is in favor of finding that the service-connected PTSD causes a level of impairment no worse than occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood; specifically, the PTSD does not more closely approximate total occupational and social impairment.

Based on the foregoing, the probative evidence weighs against finding that the criteria for a disability rating in excess of 70 percent for service-connected PTSD is warranted at any time during the period on appeal.

There is no reasonable doubt to resolve in the Veteran's favor, and the claim is denied. 

5. Entitlement to a TDIU

Total disability exists when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. 

Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

The Veteran is service connected for PTSD, 70 percent; respiratory condition, 30 percent; and right shoulder condition, 20 percent; for a combined disability rating of 80 percent. Thus, the schedular criteria are met.

The Veteran has submitted an April a TDIU Vocational Assessment Report from a Vocational Rehabilitation Consultant.  Following a review of the medical evidence of record and an interview with the Veteran, the Consultant concluded "it is more likely than not [the Veteran] has been unable to secure and follow substantially gainful employment even in a sheltered capacity, regardless of skill or exertional level, since at least August 2021."

As reported by the Veteran on his VA Form 21-8940 and in the Consultant report the Veteran worked as a Tool Grinder at a Scissor Factory and as a self-employed landscaper on the weekends.

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?

The Consultant's report is highly detailed, shows highly familiarity with the Veteran's disability picture and work history, and provides an extensive an well-reasoned rational for the opinion the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment.  As such, the Board finds this report to be the most probative evidence of record and it substantially outweighs any other evidence or opinions to the contrary.  

The Board does note, in his VA Form 21-8940, the Veteran identifies August 20, 2021, as his last day of employment as a Tool Grinder and August 2021, with no specific day, as his last month employed as a landscaper.  Additionally, the Veteran has provided a letter from his former employer detailing that numerous absences from July 2021 to August 2021 led to the Veteran's termination as a Tool Grinder effective August 20, 2021.  Also, the Consultant's report identifies August 2021 as when the Veteran ceased working due to his disabilities.  As such, the Board finds, beginning August 21, 2021, the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities.  Therefore, entitlement to a total rating based on unemployability due to service-connected is granted.

 

 

DUSTIN L. WARE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. KAYS HUKILL

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.