Citation Nr: 1754147	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  15-04 564	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU).



REPRESENTATION

Appellant represented by:	Texas Veterans Commission



WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

M. Katz, Counsel


INTRODUCTION

The Veteran served on active duty from October 1989 to January 1993. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  Jurisdiction of the Veteran's claims file rests with the RO in Waco, Texas.

The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2017.  A transcript of that hearing is associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDINGS OF FACT

1.  During his July 2017 hearing before the Board, the Veteran withdrew his appeal for entitlement to service connection for tinnitus.

2.  The weight of the probative evidence of record is in equipoise as to whether the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal of entitlement to service connection for tinnitus by the Veteran have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Tinnitus

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204 (2017).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran withdrew his claim for entitlement to service connection for tinnitus during a July 28, 2017 hearing before the Board.  There remain no allegations of errors of fact or law for appellate consideration on this issue.  Accordingly, the Board does not have jurisdiction to review the matter and it is dismissed.

II.  TDIU

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue involving the Veteran's claim for entitlement to a TDIU.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).  This is so because the Board is taking action favorable to the Veteran by granting the issue at hand.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992).

The Veteran alleges that he is unemployable due to his service-connected disabilities, particularly his service-connected PTSD.  During his June 2017 hearing before the Board, the Veteran testified that he worked from home for a newspaper until 2012, at which time he was laid off.  He reported a history of poor performance with his job and described difficulty focusing and completing work.  He indicated that he received disciplinary actions and reprimands for his performance.  He stated that he did not interact with his co-workers at the newspaper warehouses because he did not see the need and he had difficulty dealing with others.  His wife explained that the Veteran was often hostile to others over the telephone and that the Veteran was reprimanded for his behavior.  The Veteran further noted that his psychiatric medication made him feel "out of it" and left him unproductive and agitated.  The Veteran stated that he often enlisted his son and daughter to help him with his work, but that they had since left the home.  The Veteran also indicated that he experienced severe and debilitating back spasms and trouble with his knees, which impacted his ability to perform physical work.  

VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

The central inquiry 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).  A threshold requirement, however, for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability.  38 C.F.R. § 4.16(a). 

Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.  Where a Veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration.  38 C.F.R. § 4.16(b).  The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance.  Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service.

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether the veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).

Based on a thorough review of the record, the Board finds that the weight of the competent medical evidence supports the Veteran's claim for a TDIU. 

Presently, service connection is in effect for posttraumatic stress disorder (PTSD), rated as 70 percent disabling from March 26, 2010; a left shoulder disability, rated as 10 percent disabling from March 26, 2010 and 20 percent disabling from July 14, 2016; a right shoulder disability, rated as noncompensable from January 15, 1993, 10 percent disabling from June 4, 2012, and 20 percent disabling from July 14, 2016; a low back disability, rated as 10 percent disabling from July 14, 2016; a right knee disability, rated as 10 percent disabling from July 14, 2016; a left knee disability, rated as 10 percent disabling from July 14, 2016; degenerative joint disease of the right great toe, rated as noncompensable from January 15, 1993; and residuals of an avulsion fracture to the right ring finger, rated as noncompensable from January 15, 1993.  The Veteran's combined evaluation for compensation is 70 percent from March 26, 2010, 80 percent from June 4, 2012, and 90 percent from July 14, 2016.  Accordingly, the Veteran satisfies the preliminary schedular criteria set forth at 38 C.F.R. § 4.16(a) during the entire time period pertinent to his appeal. 

Further, the evidence is in equipoise as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.

An October 2011 VA PTSD examination notes the Veteran's report that he was still working, but that he complained of "lack of focus" and noted that he was reprimanded for his attitude and behavior.  The Veteran also indicated that his psychiatric symptoms interfered with work performance, and that his family often stepped in to perform his job.  He stated that his family "can pretty much do my job better than I can." 

In June 2012, the Veteran filed a claim seeking entitlement TDIU based upon his service-connected PTSD.  He noted a history of working with a newspaper delivery service as a state manager until May 2012.  He reported that he left his last job due to his disability and that he had not tried to obtain employment since he became too disabled to work.  He explained that he lost his last job due to his PTSD, as he was unable to concentrate and his medications kept him from performing his duties.  He indicated that he had two years of college education.

In various lay statements and during the Veteran's hearing before the Board, his wife reported that the Veteran had poor performance at his last job due to incomplete work and lack of focus.  She expressed her belief that the Veteran lost his job due to his continued poor performance and communication with his employer and co-workers.

In October 2012, the Veteran underwent another VA psychiatric examination.  The VA examiner opined that, although the Veteran's PTSD symptoms were significant, they did not render him unable to secure or maintain gainful employment.

In a February 2013 statement, the Veteran's former employer certified that the Veteran was laid off from his job in May 2012 due to a "staff reduction."

In a March 2014 statement, the Veteran explained that he had been unemployed for two years, and that the medications that he was prescribed made him unable to focus.  He also noted mood swings and frequent forgetfulness, such as forgetting to pick up his daughter from school.

In a July 2014 VA treatment record, the Veteran's treating psychologist reported that "it has become clear that [the Veteran] is no longer able to function adequately in the world of work given the chronic nature of his PTSD symptoms and the severe level of depression that is secondary to it."  The psychologist requested that VA "give this veteran your fullest consideration regarding his request for Individual Unemployability."

In a February 2015 opinion, C. St. John, PhD, found the Veteran's degree of limitation in working to be "extreme" since May 2012.  Dr. St. John explained that the Veteran would not be able to sustain certain mental activities, including remembering and carrying out simple instructions, detailed instructions, or complex instructions on a regular and continuing basis.  Dr. St. John also opined that the Veteran's PTSD and depression symptoms would cause extreme (meaning there is no useful ability to function) impairment in the Veteran's ability to maintain attention and/or focus for extended periods of time on a sustained basis.  Further, Dr. St. John expressed that the Veteran's psychiatric symptoms would cause extreme impairment in his ability to complete a normal work day and work week without interruption; that his psychiatric symptoms would cause an extreme degree of limitation in his ability to work with supervisors, coworkers, and the public;  that the Veteran would experience extreme limitation in his ability to deal with normal pressures in a routine work setting due to his psychiatric symptoms; and that the Veteran's limitations existed as of May 2012.

In a February 2015 opinion, D. Jarmon, PhD, found that the Veteran's PTSD affected his ability to understand, remember, and carry out instructions.  Dr. Jarmon noted that the Veteran had a mild impairment in his ability to understand and remember simple instructions; a moderate impairment in his ability to carry out simple instructions; and a marked impairment in his ability to make judgments on simple work-related decisions, understand and remember complex instructions, and make judgments on complex work-related decisions.  Dr. Jarmon explained that the Veteran's mood was unstable due to PTSD, and that he had difficulty with focus and concentration as a result.  Dr. Jarmon also found that the Veteran's PTSD impacted his ability to interact appropriately with supervisors, co-workers, and the public, as well as respond to changes in the routine work setting.  Dr. Jarmon indicated that the Veteran had marked restriction in his ability to interact appropriately with the public, interact appropriately with supervisors, interact appropriately with co-workers, and respond appropriately to usual work situations and to changes in a routine work setting.  Dr. Jarmon noted that the Veteran was anxious and socially avoidant as a result of his PTSD symptoms, and that he experienced flashbacks.

A March 2015 decision from the Social Security Administration reflects that the Veteran was awarded disability benefits, effective May 2012, based upon his psychiatric disability as well as obesity, bilateral shoulder disorder, and alcohol abuse in remission.

An April 2016 VA treatment record signed by the Veteran's treating psychologist notes that the Veteran worked from home for a newspaper delivery service until he was laid off.  The psychologist noted that the Veteran "relied heavily on a coupe of his children to assist him with interactions via the telephone."  The psychologist stated that the Veteran "remains largely unresponsive to treatment both from medication management and from psychotherapeutic perspectives" and that his "prognosis is poor."

In August 2016, the Veteran underwent VA examinations to assess the severity of his service-connected bilateral shoulder disabilities, back disability, and knee examinations.  The August 2016 VA examiners opined that the Veteran's bilateral shoulder disability and back disability impacted his ability to work in that they impacted his ability to lift heavy things.  The examiner found that the Veteran's knee disabilities did not impact his ability to work.

In a July 2017 statement, J. Shah, MD, reported that the Veteran has had multiple trials of medications and several years of therapy for his PTSD, and that he had ongoing difficulties with anxiety in public places, concentration, and irritability, which hindered his ability to remain employed.  Dr. Shah noted that the Veteran was fired from his job in 2012 due to making too many mistakes and decreased work productivity, and that he had not been employed since.  Dr. Shah stated that the Veteran continued to have moderate to severe symptoms of PTSD.

In a July 2017 statement, Dr. St. John stated that he had spent "over 140 hours in the presence of this veteran and there is little doubt that [the Veteran's] PTSD symptomatology represents some of the most severe encountered in my 20+ years working in the MH Trauma Services Clinic."  Dr. St. John continued that, although the Veteran had experienced minor success in running a newspaper delivery service, "that success was due primarily to his children helping him with answering the phones and other aspects of the business.  Once they were no longer able to assist him, the business quickly fell away to nothing."  Dr. St. John observed that the Veteran had not been employed since that time, and that "given the severity of the veteran's PTSD symptoms, he is simply unable to participate in any meaningful way in the world of work."

With consideration of the evidence of record, the Board finds that the probative evidence of record is in relative equipoise as to whether the Veteran's service-connected PTSD renders him unemployable.  In that regard, there are opinions both in favor of and against a finding of unemployability based upon service-connected PTSD.  In that regard, an October 2012 VA examiner found that, although the Veteran's PTSD symptoms were significant, they did not render him unable to secure or maintain gainful employment.  In contrast, a July 2014 VA psychologist found that the Veteran was "no longer able to function adequately in the world of work given the chronic nature of his PTSD symptoms and the severe level of depression that is secondary to it."  A February 2015 opinion from Dr. St. John concluded that the Veteran's degree of limitation in working was "extreme."  A February 2015 opinion from Dr. Jarmon reflects that the Veteran had marked impairment in most areas of work functioning.  In a July 2017 opinion, Dr. St. John found that "given the severity of the veteran's PTSD symptoms, he is simply unable to participate in any meaningful way in the world of work."  The evidence also reveals that, although the Veteran was able to maintain employment distributing newspapers for several years, this was primarily due to the assistance that he received from his children, who helped him with interactions over the telephone and other aspects of work.  With consideration of both the positive and negative opinions of record, the Board concludes that the evidence is in relative equipoise as to whether the Veteran's service-connected PTSD renders him unemployable.

In light of the Veteran's schedular eligibility for TDIU under 38 C.F.R. § 4.16(a), the numerous positive opinions of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).


ORDER

The appeal as to the issue of entitlement to service connection for tinnitus is dismissed.

Entitlement to a TDIU is granted.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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