Citation Nr: 1127351	
Decision Date: 07/22/11    Archive Date: 07/29/11

DOCKET NO.  07-34 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to an increased (compensable) rating for bilateral hearing loss. 

2.  Entitlement to an increased initial rating for service-connected post-traumatic stress disorder (PTSD), rated 30 percent, before October 9, 2007.

3.  Entitlement to an increased initial rating for service-connected PTSD in excess of 50 percent, from October 9, 2007. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel

INTRODUCTION

The Veteran served on active duty from March 1966 to February 1968.  

These matters came before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision from the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for hearing loss and assigned a non-compensable rating, and granted service connection for PTSD and assigned a 30 percent rating.  A May 2009 rating decision granted an increased, 50 percent, rating for PTSD, effective October 9, 2007.  The Veteran continues to appeal for a higher rating for this disability.  See AB v. Brown, 6 Vet. App. 35 (1993). 

The issues have been recharacterized to comport to the evidence of record.

The issue of entitlement to a rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence shows that the Veteran manifests Level I hearing in the right ear and Level II hearing in the left ear.

2.  Before October 9, 2007, the Veteran's PTSD is manifested by nightmares, hypervigilance, irritability, anxiety, emotional blunting, intrusive thoughts, social withdrawal, depression, and difficulty establishing and maintaining effective relationships.





CONCLUSIONS OF LAW

1.  The criteria for a compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2010).

2.  The criteria for an increased initial rating of 50 percent for PTSD have been met effective March 2005.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.2, 4.6, 4.7, 4.10, and 4.130, Diagnostic Code 9411 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The hearing loss claim involves a "downstream" issue, as the initial claim for service connection was granted in the rating decision on appeal, and the Veteran disagrees with the evaluation assigned.  

In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In such a case, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  As the Veteran has not alleged any prejudice, that burden has not been met.  

Accordingly, the Veteran is not prejudiced by a decision on the appeal, regardless of the timing or content of the notice provided by the RO.

VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disability, and afforded the appellant the opportunity to give testimony before the Board.  All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the hearing loss claim at this time.

The Board is granting a 50 percent rating for the Veteran's PTSD before October 9, 2007, and this is the greatest benefit the Veteran can receive at this point in time.  The question of whether the Veteran is entitled to a rating in excess of 50 percent is remanded for further development.  Any failure to notify or assist him is inconsequential and, therefore, at most, no more than harmless error.

II.  Analysis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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.  See 38 C.F.R. § 4.7.

Consideration must be given to the possible entitlement to "staged" ratings to compensate a veteran for times since filing his claim when a disability may have been more severe than at other times during the course of his appeal.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's statements regarding the severity of his service-connected disability are deemed competent with regard to the description of symptoms.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  However, these statements must be considered with the clinical evidence in conjunction with the appropriate rating criteria.

A.  Bilateral Hearing Loss

Ratings for bilateral defective hearing range from 0 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 level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hz.  The 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, Diagnostic Codes 6100-10.

In addition to the general criteria, VA has identified two circumstances where alternative tables could be employed for exceptional patterns of hearing impairment.  One is where the pure tone thresholds in each of the four frequencies of 1000, 2000, 3000 and 4000 Hz are 55 dB or greater.  The second was where pure tone thresholds are 30 dB or less at frequencies of 1000 Hz and below, and are 70 dB or more at 2000 Hz.  38 C.F.R. § 4.86.

The results of an August 2005 VA audiological evaluation are:


HERTZ
CNC
Level

1000
2000
3000
4000
Avg


RIGHT
15
20
55
70
40
96
I
LEFT
20
30
65
70
46
96
I



The results of a July 2007 VA audiological evaluation are:


HERTZ
CNC
Level

1000
2000
3000
4000
Avg


RIGHT
30
30
65
75
50
92
I
LEFT
30
35
80
80
56
88
II

The findings from the audiological evaluations do not provide for a compensable rating for the bilateral hearing loss.  When the latest and more severe pure tone threshold average and the speech recognition score for both ears are applied to Table VI, the numeric designation of hearing impairment is Level I for the right ear and Level II for the left ear.  When these numeric designations for the right and left ears are then applied to Table VII, the percentage of evaluation for hearing impairment is noncompensably disabling.  The requirements for either of the alternative ratings pursuant to C.F.R. § 4.86 are not met in this case, so that regulation simply does not apply.  Therefore, a compensable evaluation is not warranted.

B.  PTSD

The Veteran, in part, contends that his PTSD should have been rated more than 30 percent disabling before October 9, 2007.

Diagnostic Code 9411 provides that PTSD is evaluated under the general rating formula used to rate psychiatric disabilities other than eating disorders.  38 C.F.R. § 4.130.

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 rating is warranted when there is 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.

The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Global Assessment of Functioning Scale (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), p. 32).  GAF scores ranging between 61 and 70 reflect 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, and has some meaningful interpersonal relationships.  Scores ranging from 51 to 60 reflect more 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).  Scores ranging from 41 to 50 reflect 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 VA examination was conducted in August 2005.  The Veteran stated that he suffered from nightmares, hypervigilance, irritability, anxiety, emotional blunting, intrusive thoughts, social withdrawal, depression, and difficulty establishing and maintaining effective relationships.  Examination noted that the Veteran was alert, oriented, speech was normal, and there were no psychiatric symptoms.  Mood and affect were anxious and sad.  Insight and judgment were mildly impaired by his depression and anxiety.  A GAF score of 50 was assigned.  

Evaluating the reported manifestations of the Veteran's PTSD, at least some of the criteria for a 50 percent rating appear to be met, and have been met throughout the appeal period, i.e., more frequent anxiety, and difficulty establishing and maintaining effective relationships.  Therefore, a 50 percent rating is warranted for the Veteran's PTSD before October 9, 2007.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.3, 4.10, and 4.130, Diagnostic Code 9411.

Additional development is needed to determine if the Veteran is entitled to a rating in excess of 50 percent.


ORDER

Entitlement to an increased (compensable) rating for bilateral hearing loss is denied. 

Entitlement to an increased, 50 percent, rating for service-connected PTSD, effective March 2005, is granted.  


REMAND

"In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim."  38 C.F.R. § 3.159(c)(4)(i).  The Veteran and his representative claim that the Veteran's PTSD has increased in severity since his last compensation examination in October 2007.  In addition, the Board notes that over three and a half years have passed since that examination.  Therefore, another examination should be scheduled.  

Accordingly, this case is REMANDED to the RO for the following:

1.  Schedule the Veteran for a psychiatric examination to determine the nature and extent of his PTSD.  All indicated tests, including appropriate psychological studies with applicable subscales, should be conducted.  Send the claims folder to the examiner for a review of the Veteran's pertinent medical history, including a complete copy of this remand.  The examiner should indicate whether the Veteran's PTSD is severe enough to either interfere with his social and occupational functioning or to require continuous medication; whether his symptoms are controlled by continuous medication; whether his symptoms decrease work efficiency continuously, occasionally, or only during periods of significant stress; whether he has panic attacks and, if so, whether they occur less than once a week, once a week, more than once a week, or continuously; whether there is memory loss and, if so, whether it is of the short-or long-term memory and whether it is mild (relating to names, directions, or recent events) or more severe (relating to one's own name, one's own occupation, or the names of close relatives); and whether the condition is manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, difficulty in understanding complex commands, impaired judgment and/or abstract thinking, disturbances of motivation or mood, suicidal ideation, obsessional rituals that interfere with routine activities, impaired impulse control, spatial or temporal disorientation, neglect of personal appearance and hygiene, gross impairment of thought processes or communication, grossly inappropriate behavior, persistent delusions or hallucinations, persistent danger of hurting oneself or others, an inability to perform the activities of daily living, difficulty in adapting to stressful circumstances, difficulty in establishing and maintaining effective work and/or social relationships, or circumstantial, circumlocutory, stereotyped, illogical, obscure, or irrelevant speech.  

The examiner should also render a multi- axial diagnosis, including assigning a GAF score and explaining what the score means.  If more than one psychiatric or personality disorder is diagnosed, the examiner should expressly indicate whether it is possible to distinguish the symptomatology attributable to the service-connected PTSD from that attributable to any other psychiatric impairment (including any diagnosed personality disorder) that is not service connected; and, if so, indicate the percentage or portion of the assigned GAF score representing impairment due to the service-connected PTSD.  The examiner should clearly indicate if it is not possible to separate the symptoms and effects of the PTSD from any other psychiatric disability.  An opinion should also be rendered regarding whether any separately diagnosed disorders are deemed caused or aggravated by the Veteran's PTSD.  All examination findings, along with the complete rationale for each opinion expressed and conclusion reached, should be set forth.

2. Then readjudicate the Veteran's claim for a rating higher than 50 percent for his PTSD.  If the claim is denied, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the case to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).




______________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs