BVA9504335 DOCKET NO. 91-24 578 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service- connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from March 1940 to June 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1990 rating decision of the Newark, New Jersey, Regional Office (RO). That determination denied claims for entitlement to service connection for bilateral hearing loss disability and bilateral tinnitus, and the RO confirmed and continued a 10 percent evaluation for the veteran's service-connected psychiatric disorder. By rating decision of July 1990, the RO awarded an increased 30 percent evaluation for the veteran's service- connected anxiety reaction with post-traumatic stress disorder (PTSD), effective from January 1990. In July 1992, the Board remanded the case for further development of the record, to include the consideration of the issue of entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disability. By rating decision of December 1992, the RO confirmed and continued its earlier determinations, and the RO denied the claim for entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disability. By determination of May 1993, the Board established service connection for tinnitus, and the Board assigned a 50 percent evaluation for anxiety reaction with PTSD. At that time, the Board also remanded the case to the RO for readjudication of the issue of entitlement to a total disability rating for compensation purposes based on individual unemployability due to service- connected disability. By rating decision of June 1993, the RO assigned a 10 percent evaluation for service-connected tinnitus, from January 1989, the RO assigned the 50 percent evaluation for service-connected anxiety reaction with PTSD from January 1990, and a total combined evaluation of 60 percent was assigned from January 1990. At that time, the RO again denied the claim for entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disability. In March 1994, the Board again remanded the case for further development of the record. The requested development was completed, and, by rating decision of October 1994, the RO established service-connection for bilateral hearing loss disability, with a noncompensable evaluation assigned from January 1990. The veteran has not appealed that determination, and the instant issue is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains that the RO committed error when it denied his claim for entitlement to a total rating based on individual unemployability due to multiple service-connected disabilities. In essence, he asserts that his service-connected anxiety reaction with PTSD, bilateral hearing loss disability, and tinnitus, are so disabling as to preclude him from securing or following a substantially gainful occupation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. Service connection is established for: Anxiety reaction with PTSD, currently evaluated as 50 percent disabling; tinnitus, currently evaluated as 10 percent disabling; and, bilateral hearing loss disability, currently assigned a noncompensable evaluation. The veteran's service-connected disorders are rated as 60 percent disabling when considered on a combined basis. 3. The veteran's combined service-connected disabilities, and these disabilities alone, are not of such severity so as to preclude him from securing or following a substantially gainful occupation. 4. The case does not present an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, so as to render inapplicable the regular schedular standards. CONCLUSION OF LAW The veteran is not unemployable due to his service-connected disability, and a total rating on account of individual unemployability due to service-connected disabilities is not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.340, 3.341, Part 4, §§ 4.16, 4.18 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, he has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board is also satisfied that all relevant facts have been properly developed. Neither the appellant, nor his representative contends that records not already associated with his claims file exist. Accordingly, the Board is satisfied that all relevant facts have been properly developed to their full extent and that the Department of Veterans Affairs (VA) has met its duty to assist, as mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection has been established for anxiety reaction with PTSD, currently evaluated as 50 percent disabling, bilateral hearing loss disability, currently assigned a noncompensable evaluation, and tinnitus, currently evaluated as 10 percent disabling. The veteran's service-connected disorders are rated as 60 percent disabling when considered on a combined basis. Since he is less than totally disabled under the schedular criteria, it accordingly must be shown that his service-connected disorders, and these disorders alone, preclude him from securing or following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 3.341, Part 4, §§ 4.16, 4.18 (1993). We do not believe that this has been demonstrated. The veteran's multiple nonservice-connected physical disorders, as most recently noted in the rating action of October 1994, include residuals of influenza and tracheal bronchitis, recurrent fever with dysentery, and intercostal neuralgia. Although impairment resulting from these nonservice-connected disorders may exist, they are not for consideration in this appeal. Similarly, the Board notes the veteran's June 1993 statement in which he argues that, due to his age, he is unable to secure or follow a substantially gainful occupation. However, total disability compensation ratings may be assigned when it is determined that the service-connected disabilities are sufficient to produce unemployability, without regard to advancing age. 38 C.F.R. § 3.341(a) (1993). The January 1995 Informal Hearing Presentation of the veteran's representative asserts that the RO failed to advise the veteran of the applicability of 38 C.F.R. § 4.16(c) (1993). While the veteran's representative does not allege prejudicial error, the Board notes, for clarification purposes, that the provision of 38 C.F.R. § 4.16(c) is not for application in the appeal, since the facts of the case do not present a situation in which the veteran's only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation. In this case, the veteran has two service-connected disabilities with compensable evaluations. Total disability ratings for compensation purposes 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 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. Part 4, § 4.16 (1993). Since the veteran's service- connected disabilities are rated as 60 percent disabling, when considered on a combined basis, the veteran's disability picture does not meet the above criteria. The severity of the veteran's service-connected anxiety reaction with PTSD is determined, for VA rating purposes, by application of the provisions of Diagnostic Code 9411 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1992) (hereinafter Schedule). Under Diagnostic Code 9411, there are various disability levels for post-traumatic stress disorder, ranging from the noncompensable to 100 percent. A 50 percent rating is assigned when the ability to establish or maintain effective or favorable relationships with people is considerably impaired and by reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating is assigned when the ability to establish and maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity or persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent rating is assigned when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; and the veteran is demonstrably unable to obtain or retain employment. Diagnostic Code 9411 further provides that social impairment per se will not be used as the sole basis for any specific percentage evaluation, but it is of value only in substantiating the degree of a disability based on all of the findings. Because of effective date law and regulations, the most pertinent evidence is those documents created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991). The September 1992 VA examination report indicates that the veteran receives psychotropic medications for his anxiety reaction with PTSD, and he attends psychotherapy every two weeks. Subjective complaints included sleep interruption, insomnia and night sweats, recurrent nightmares, survivor quilt, flashbacks, and startle response. Objective findings included the notation that the veteran was alert and oriented times three, with no disturbance of mental stream of thought or perception. The veteran appeared tense and anxious, with constricted affect, and depressed mood, and he was, at times, tearful. Although, insight was poor and, the veteran's memory and concentration were noted as impaired, his intellect was average and his judgment was adequate for VA rating purposes. The veteran was judged to be financially competent. Although the veteran indicated that due to his nervous condition, he had not worked since 1972, an April 1990 VA survey, filled out personally by the veteran, indicates that he retired in 1973 from the position of salesman, with no periods of subsequent unemployment. In June 1993, the veteran indicated that soon after 1972, he was he was not able to obtain work in his field of expertise, the wholesale, electric supply industry, since "there was a slump during those years of 1972 through 1976." The veteran has not supported his claim with any objective or clinical evidence that he has been turned down from any position due to his service-connected disabilities, nor has any attempts at employment been demonstrated. We note VA mental health treatment records, dated from March 1990 to June 1992, along with the testimony given by the veteran both at the RO hearing and recent hearing before a member of the Board sitting in Washington, D.C. Both indicate complaints of impairment not resulting from service-connected disability. Mental health records indicate complaints of headaches and balance problems, and a May 1990 neurologic consultation report includes a diagnoses of chronic headaches, possibly secondary to Paget's disease of the skull and cervical degenerative changes. The report notes that the veteran's mental status was normal, although the veteran appeared to be mildly depressed. As noted above, the veteran's multiple nonservice-connected physical disorders are not for consideration in this appeal, despite any resulting disability. 38 C.F.R. §§ 3.340, 3.341, Part 4, §§ 4.16, 4.18 (1993). Evaluations for bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold levels as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 hertz. To evaluate the degree of disability from bilateral service-connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal auditory acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 and Part 4, Code 6100 through 6110 (1993). Moreover, the evaluations derived from this Schedule are intended to make proper allowance for improvement by hearing aid devices. 38 C.F.R. § 4.86 (1993). The veteran most recently underwent a VA audiological examination in June 1994. At that time, the pure tone thresholds for the frequencies 1,000, 2,000, 3,000 and 4,000 hertz were 35, 40, 60 and 65 decibels in the right ear and 35, 50, 60 and 65 decibels in the left ear. The pure tone averages were reported as 50 decibels in the right ear and 53 decibels in the left ear. Speech recognition ability was 94 percent correct in the right ear, and 80 percent correct in the left ear. Although the veteran submitted audiologic testing results, dated in January 1994, December 1993, and January 1990, those reports are uninterpreted or incomplete. Although those earlier records provide little useful information, the June 1994 findings translate to a level I designation for the right ear, and a level IV for the left ear. Diagnosis in June 1994 was mild to severe sensorineural hearing loss in the right ear, and mild slopping to severe sensorineural hearing loss with a minimal conductive component in the left ear. The veteran is reported as wearing hearing aids. As such, the recent testing requires a noncompensable evaluation for the veteran's service-connected bilateral defective hearing loss disability under 38 C.F.R. § 4.85 and Part 4, Code 6100 (1992). The June 1994 VA audiologic examination report also indicates a history of noise exposure during service, with no discharge from the ears, no medications for the ears, and no previous ear surgeries. Upon examination, the veteran had normal uricle, ear canal, and tympanic membrane, bilaterally, with external, middle and inner ear normal bilaterally as well. There was no tenderness over the mastoid, no clinical evidence of active disease in the external, middle or inner ears. Diagnoses were no active ear disease at the present time, tinnitus by history, and bilateral sensorineural hearing loss disability, which was attributed to the veteran's exposure to noise during service. As indicated earlier in this opinion, the veteran's service- connected tinnitus is evaluated as 10 percent disabling, effective from January 1989. The severity of impairment resulting from service-connected tinnitus is ascertained by application of the Schedule for Rating Disabilities (Schedule), at 38 C.F.R. § 4.87a, Part 4, Diagnostic Code 6260 (1993). Under Diagnostic Code 6260, a 10 percent evaluation is assigned for persistent tinnitus, as a symptom of head injury, concussion, or acoustic trauma. No higher evaluation is available under that provision. The Board has also considered Diagnostic Codes 6204 and 8046. Under Diagnostic Code 6204, tinnitus resulting from moderate, chronic labyrinthitis, with occasional dizziness, warrants a 10 percent evaluation. Tinnitus resulting from severe, chronic labyrinthitis, with dizziness and occasional staggering, warrants a 30 percent evaluation. Additionally, Diagnostic Code 8046 assigns a 10 percent evaluation for purely subjective complaints of tinnitus resulting from cerebral arteriosclerosis, properly diagnosed, with higher evaluations assignable under the appropriate diagnostic codes, when purely neurologic disabilities are demonstrated. However, the evidence of record does not include diagnoses of labyrinthitis or cerebral arteriosclerosis, and tinnitus is not clinically demonstrated to result in impairment greater than that contemplated by a 10 percent disability evaluation. Upon the most recent VA examination of June 1994, the veteran reported constant, "hissing" tinnitus, with some periodic loss of balance and frequent falls since his in-service noise exposure. He reported that tinnitus sometimes keeps him awake at night, and it causes difficulty concentrating during the day. Diagnosis was tinnitus by history. Other uninterpreted audiologic testing records, dated from January 1990 to January 1994, indicate no complaints of tinnitus. As such, the Board finds that the clinically objective records demonstrate impairment that is no greater than that contemplated by a 10 percent evaluation for bilateral tinnitus. When all the evidence is assembled, the VA 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Upon our review of the evidence, we accordingly conclude that the preponderance of the evidence is against the claim for entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability. In exceptional cases, where the schedular evaluations are found to be adequate, an extraschedular evaluation may be awarded commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321 (1993). We do not believe that this case presents such an exceptional or unusual disability picture, inasmuch as there has been no demonstration of such related factors as marked interference with employment, or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. To the contrary, the record indicates that the veteran essentially retired in 1973 due to the difficult job market in his file. At that time, he had four years of technical training including algebra and French, his judgment was considered adequate for VA rating purposes, and he was adjudged to be competent upon mental examination. The veteran's anxiety reaction with PTSD requires counseling only two times a month, and is essentially controlled with medication. His bilateral hearing loss disability is not shown to warrant a compensable evaluation, and his service-connected tinnitus is not shown to warrant an evaluation in excess of 10 percent. As such, his claim must fail. The veteran's service-connected disabilities, individually, and on a combined basis, are not shown to result in such impairment as to render the veteran unemployable, and his combined service-connected disabilities, and these disabilities alone, are not of such severity so as to preclude him from securing or following a substantially gainful occupation. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, Part 4, § 4.16, 4.18 (1993). ORDER The claim for entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disability, is denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.