Citation Nr: 1126635 Decision Date: 07/15/11 Archive Date: 07/21/11 DOCKET NO. 10-10 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a higher initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a higher initial disability rating in excess of 20 percent for bilateral hearing loss. ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. FINDINGS OF FACT 1. For the entire initial rating period, the Veteran's PTSD manifested with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) and a Global Assessment of Functioning (GAF) score of 55. 2. At no point during the initial rating period on appeal did the Veteran's PTSD more nearly approximate 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 3. The Veteran's hearing manifested by no more than Level VII hearing acuity in the right ear and Level III hearing acuity in the left ear with minimum speech recognition scores of 84 percent bilaterally. CONCLUSIONS OF LAW 1. The criteria for a higher initial disability rating in excess of 30 percent for PTSD have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002), and implemented by regulation, 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1). The appeals for a higher initial rating for PTSD and bilateral hearing loss arise from a disagreement with the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA examination reports, VA treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in July 2009, August 2009, and September 2009. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. The Board finds the examinations to be sufficient and adequate for rating purposes. Thus, further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Higher Initial Rating - Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time, and different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Higher Initial Rating - PTSD Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2010). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2010). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM IV), a global assessment of function (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM IV, American Psychiatric Association (1994), pp.46-47; 38 C.F.R. §§ 4.125(a), 4.130. A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school. A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. The Veteran's service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides: A 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted if the Veteran experiences 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, such as work, school, family relations, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. After a review of the evidence, lay and medical, the Board finds that, for the entire rating period, the Veteran's PTSD manifested with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss, which more nearly approximates a 30 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Veteran was afforded a VA psychiatric examination in July 2009. He also attended group counseling at the VA medical center. VA records and lay statements reveal an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He reported symptoms of depressed mood, anger, suspiciousness, chronic sleep impairment, re-experiencing, and short term memory loss. To receive a higher initial disability rating, the evidence must show 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The record at no point showed a flattened affect. His speech was never described as circumstantial, circumlocutory, or stereotyped. Rather, his speech was described in July 2009 as goal-oriented and logical with good tone and rhythm. The July 2009 examiner noted no panic attacks. The record at no point showed difficulty in understanding complex commands or impaired abstract thinking. The July 2009 examiner found the Veteran to have good comprehension and normal perception with the ability to abstract and conceptualize. The Veteran's judgment was described as good in July 2009. The evidence did not show any difficulty in establishing and maintaining effective work and social relationships. The Veteran is married, keeps up with old friends by telephone. He calls his family. He attends or throws barbeques and goes to church on a regular basis. He also successfully maintained employment, specifically for 25 years with the same police department until he retired. The Board acknowledges that the Veteran has some impairment of memory. The examiner found his long term memory to be good, but noted that his short term memory is not good. The Veteran reported that he can't remember things from a short time ago according to his wife, but he doesn't agree with her. The Board notes however that his short term memory impairment is appropriately addressed under the 30 percent criteria of mild memory loss. The Veteran also experienced some disturbances of motivation and mood. Again, these are sufficiently addressed under the 30 percent criteria of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. Therefore, the Veteran's symptoms do not more nearly approximate the criteria for a 50 percent rating. The record does not contain evidence of any panic attacks as noted in the 30 percent criteria; however, it is not required that the Veteran experience every symptom listed in the regulation. The Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather 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). As such, the Board notes that the Veteran experiences other symptoms that are not listed in the criteria, but may reflect the severity of his PTSD. These include, but are not limited to anger, re-experiencing, avoidance, and hypervigilance. Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. See Mauerhan, 16 Vet. App. 436 . The Veteran's GAF scores are also consistent with a 30 percent rating. The Veteran was assigned a GAF score of 55. GAF scores in the range from 41 to 50 generally indicate A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. In this case, the severity of specific symptoms and the degree of occupational and social impairment shown by the evidence of record more nearly approximates the criteria for a 30 percent disability rating for the initial rating period. Therefore, the Board finds that the Veteran's PTSD symptoms at no point more nearly approximated the criteria for a higher initial disability rating in excess of 30 percent. Higher Initial Rating - Hearing Loss In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state- licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. The Veteran underwent a VA audiological examination in August 2009. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 100 95 85 LEFT 35 90 90 85 The pure tone averages were 77.5 decibels for the right ear and 75 decibels for the left ear. Speech audiometry revealed speech recognition ability of 84 percent bilaterally. The Veteran was afforded a VA examination for ear disease in September 2009. The examiner noted an October 2008 audiogram showing normal tympanograms and normal hearing from 250-1000 hertz, sloping severely to severe hearing loss at 2000 and becoming moderately severe at 8000. He diagnosed otitis externa, surgery for Meniere's disease, sensorineural hearing loss, and tinnitus. The examination complied with the requirements in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The examiner noted the effects on daily activity including that the Veteran complained of hearing loss worsening during the day and that he had difficult hearing the television. The record also contains reports of fittings and cleanings for the Veteran's hearing aids as well as a September 2009 ENT consult note that shows probable active severe middle ear disease. The record contains no other audiological findings. As the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz for the right ear, the audiological results meet the requirements for exceptional patterns of hearing impairment. Therefore, the Roman numeral designation is determined using either Table VI or Table VIa, whichever results in the higher numeral. When applying the pure tone averages and the speech recognition scores to Table VI, the right ear is assigned a Level III. When applying the pure tone averages to Table VIa, the right ear is assigned a Level VII. As Table VIa results in a the higher numeral, a Level VII is assigned for the right ear. As the audiological results do not meet the requirements for exceptional patterns of hearing impairment regarding the left ear, the Veteran's left ear hearing must be evaluated using Table VI. When applying the pure tone averages and the speech recognition scores to Table VI, the left ear is assigned a Level III. The Board then applies those levels to Table VII, which results in a 20 percent evaluation for the bilateral hearing loss. As such, a disability rating in excess of 20 percent for bilateral hearing loss is not warranted based on the August 2009 examination results. For these reasons, the Board finds that the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met or approximated at any time during the period on appeal. 38 C.F.R. § 4.85, Diagnostic Code 6100. Extraschedular Consideration The Board also has considered whether the criteria for referral for extraschedular disability rating are met. An extraschedular disability rating is warranted when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2010); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of clinical findings and history, including history reported to examiners as well as history in lay statements or testimony. In this case, considering all the lay and medical evidence, including the Veteran's written statements, the Board has found that the Veteran's PTSD manifested with PTSD manifested with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. All of these symptoms or social and occupational impairments are explicitly recognized by the schedular rating criteria. As seen in the analysis above, the Board has considered these aspects of the Veteran's PTSD disability, and finds that the rating schedule (Diagnostic Code 9411) adequately provides for ratings base on these symptoms. Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss, as set forth in the 30 percent rating criteria. All of the Veteran's psychiatric symptoms attributable to PTSD are therefore adequately rated by either specific schedular rating criteria or by analogy under the schedular criteria. See Mauerhan, 16 Vet. App. 436. In this case, the Veteran also reported with decreased hearing acuity. The Veteran received audiological examinations that appropriately measured the Veteran's hearing loss levels, both as indicated by audiometric testing at specified levels, and as measured by speech recognition test scores. The speech recognition testing is schedular rating criteria recognition of an inability to hear some words in normal conversation. The Veteran has not asserted and the Board has not found any reason to doubt the accuracy of the audiological examinations. Additionally, the findings appropriately apply to the criteria set forth in the Rating Schedule. As the Veteran's hearing loss was appropriately measured and applied, the Board finds that the Rating Schedule contemplates all aspects of his disability, so that referral for extraschedular consideration is not warranted regarding the claim for increased rating for bilateral hearing loss. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's PTSD or bilateral hearing loss, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For this reason, the Board finds that the Rating Schedule measures and contemplates all aspects of the Veteran's disabilities, so is adequate to rate the Veteran's service-connected bilateral hearing loss and PTSD, so that referral for extraschedular consideration is not warranted. ORDER Entitlement to a higher initial disability rating in excess of 30 percent for PTSD is denied. Entitlement to a higher initial disability rating in excess of 20 percent for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs