Citation Nr: 1304332 Decision Date: 02/06/13 Archive Date: 04/10/13 DOCKET NO. 09-18 609 ) DATE FEB 06 2013 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for the service-connected bilateral hearing loss, evaluated at a noncompensable level prior to May 17, 2007, as 10 percent disabling beginning on May 17, 2007, as 30 percent disabling beginning on March 11, 2010, and as 50 percent disabling beginning on April 2, 2012. 2. Entitlement to an initial evaluation in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD), for the period of the appeal prior to October 31, 2007. ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1965 to May 1968. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from May 2007 and August 2007 rating decisions by the RO. In May 2007, the RO granted service connection for the PTSD and assigned a 50 percent evaluation, effective on February 23, 2004. The Veteran appealed the assigned rating. In a May 2009 rating action, the RO assigned an increased rating of 100 percent for the service-connected PTSD, effective on October 31, 2007. In an August 2007 rating action, the RO assigned an increased evaluation of 10 percent for the service-connected bilateral hearing loss disability, effective on May 17, 2007. The Veteran appealed the assigned rating. In a September 2010 rating action, the RO assigned an increased evaluation of 30 percent for the service-connected bilateral hearing loss disability, effective on March 11, 2010. The Board remanded the case to the RO for additional development of the record in February 2012. In an October 2012 rating action, the RO assigned an increased evaluation of 50 percent for the service-connected bilateral hearing loss disability, effective on April 2,2012. The applicable case law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35(1993). -2- A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Beginning in January 2007, the service-connected bilateral hearing loss is shown to have been productive of a disability picture that more nearly approximated that of Level IV hearing acuity in the right ear or Level IV hearing acuity on the left. 2. Prior to March 11, 2010, the service-connected bilateral hearing loss disability is not shown to have been productive of Level VI hearing acuity in the right ear and Level VII hearing acuity on the left. 3. Prior to April 2, 2012, the service-connected bilateral hearing loss disability is not shown to have been productive of Level VIII hearing acuity in the right ear and Level VIII hearing acuity on the left. 4. Beginning on April 2, 2012, the service-connected bilateral hearing loss disability is not shown to have been productive of worse than Level VIII hearing acuity in the right ear and Level VIII hearing acuity on the left. 5. For the period of the appeal from February 23, 2004 to October 31, 2007, the service-connected PTSD is shown to have been productive of a disability picture that more nearly approximated that of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment and mood, and the inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating of 10 percent, but not higher for the service-connected bilateral ear hearing loss disability beginning in January -3- 2007have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012). 2. The criteria for the assignment of a rating in excess of 10 percent for service-connected bilateral ear hearing loss disability prior to March 11, 2010 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012). 3. The criteria for the assignment of a rating in excess of 30 percent for service-connected bilateral ear hearing loss disability prior to April 2, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012). 4. The criteria for the assignment of a rating in excess of 50 percent for service-connected bilateral ear hearing loss disability beginning on April 2, 2012 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012). 5. For the period of the appeal from February 23, 2004 to October 31, 2007, the criteria for the assignment of a rating of 70 percent, but not higher for the service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). -4- Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183(2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided VCAA notice letters to the Veteran in July 2007, before the initial adjudication of the claim for an increased evaluation for the service-connected bilateral hearing loss. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims for increased ratings, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The July 2007 letter pertinent to the claim for an increased rating for the service-connected bilateral hearing loss provided this notice. With respect to the other issue on appeal which arises from disagreement with the initial evaluation following the grant of service connection for PTSD, both the U.S. Court of Appeals for Veterans Claims (Court) and the Federal Circuit Court of Appeals 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. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d -5- 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See also 38 C.F.R. 3.159(b)(3) (no duty to provide VCAA notice arises upon VA's receipt of a Notice of Disagreement), retroactively effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. VA treatment records are associated with the claims file. The Board also notes that there is no identified relevant evidence that needs to be obtained in this regard. The Veteran underwent VA examinations in November 2005, July 2007, November 2007, March 2010 and April 2012 to ascertain the severity of the service-connected disabilities. The Board further observes that this case was remanded in February 2012 in order to afford the Veteran a contemporaneous VA examination to determine the current severity of the service-connected bilateral hearing loss and to adjudicate the issue of an initial evaluation in excess of 50 percent for PTSD, prior to October 31, 2007. Thereafter, the Veteran was afforded the requested examination in April 2012. The RO readjudicated the issues on appeal and issued an October 2012 Supplemental Statement of the Case (SSOC) and an October 2012 rating decision which granted an increased evaluation for the service-connected bilateral hearing loss. Therefore, the Board finds that the AOJ has substantially complied with the February 2012 remand directives such that no further action is necessary in this regard. See D 'Aries, supra. With respect to VA examinations, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). -6- The most recent VA examination provided in April 2012 is based on review of the claims file, taking a relevant history from the Veteran, and clinical evaluation of the Veteran. The examination report is adequate; the information provided by the VA examiner is supported by a thorough history, fully reasoned explanations and clinical findings and, as will be discussed at length below. A new examination is not required as the examiner's opinions are well-supported, and the opinion addressed the Board's February 2012 remand directives. The need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. The VA examinations, taken as a whole, are fully sufficient to evaluate the appeal. In addition, no other probative medical or lay evidence demonstrates a worsening of the service-connected disabilities. Therefore, a new VA examination to rate the severity of the bilateral hearing loss is not warranted. Under the circumstances, the Board finds no reasonable possibility that further assistance would aid the Veteran in substantiating the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Laws and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. -7- The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 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. 38 C.F.R. §4.7(2012). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern. See Francisco v. Brown, 1 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hearing Loss Assignments of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII. Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometric test. 38 C.F.R. § 4.85(a). -8- Numeric designations (I through XI) are assigned by application of Table VI, in which the percentage of discrimination is intersected with the puretone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII, for a percentage rating. Id. "Puretone threshold average," as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA. 38 C.F.R. § 4.85(d). Under 38 C.F.R. § 4.86, evaluation of veterans with certain patterns of exceptional hearing impairment is contemplated. In the case where puretone thresholds are 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86(a). In addition, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86(b). A. Prior to May 17. 2007 In the August 2005 rating decision, the RO granted service connection for bilateral hearing loss disability and assigned a noncompensable evaluation based on the May 1968 separation examination report findings of bilateral hearing loss. In January 2007, the Veteran is shown to have submitted an informal claim for an increased evaluation for his service-connected hearing loss. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to -9- one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002). Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. The analysis that follows is undertaken with the understanding that different ratings may be assigned for different time periods in this appeal. A review of the record shows no probative evidence pertinent to the service-connected hearing loss prior to the VA examination findings documented in July 2007. To the extent that the Veteran is found to have credibly asserted having increased hearing problems in connection with his informal claim for increase submitted in January 2007, an increased evaluation of 10 percent under Diagnostic Code 6100 is assignable beginning in January 2007. B. Prior to March 11, 2010 During a July 2007 VA examination, the Veteran indicated that he had difficulty comprehending conversational speech, especially in the presence of background noise. He also reported difficulty comprehending speech without eye contact due to his reliance on lip reading. An audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT N/A 50 65 80 90 71.25 LEFT N/A 45 55 80 90 67.50 -10- Speech recognition scores were 80 percent, bilaterally. The examiner noted that diagnostic and clinical testing showed a moderate to profound sensorineural hearing loss in both ears. A September 2007 VA treatment note indicated that the Veteran was provided binaural amplification hearing aids. In a November 2007 VA examination report, the examiner opined that, even with amplification, the Veteran's ability to work effectively in both physical and sedentary employment would be adversely affected. Applying the schedular criteria, this examination report yielded a numerical designation of IV for the right ear (66 to73 percent average puretone decibel hearing loss, with 76 to 82 percent speech discrimination) and a numerical designation of IV for the left ear (66 to 73 percent average puretone decibel hearing loss, with between 76 to 82 percent speech discrimination). See 38 C.F.R. § 4.85, Table VI. Entering the category designations from the July 2007 examination into Table VII results in a 10 percent rating under Diagnostic Code 6100. The July 2007 audiogram results did not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86 [thresholds of 55 or greater for all four Hertz frequencies, or 30 or less at the 1000 Hertz frequency and 70 or greater at the 2000 Hertz frequency]. Thus, on this record, the Board finds that the service-connected bilateral hearing loss disability should be rated as 10 percent disability rating under Diagnostic Code 6100 beginning on May 17, 2007. Hence, an increased evaluation in excess of 10 percent is not assignable based on these test results. -11- C. Prior to April 2, 2012 A March 2010 VA examination audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT N/A 60 70 80 90 75 LEFT N/A 55 75 90 100+ 80 Speech recognition scores were 76 percent in the right ear and 80 percent in the left ear. The examiner noted that diagnostic and clinical testing showed a moderately severe to profound sensorineural hearing loss in both ears. The examiner noted that the Veteran had difficulty comprehending conversational speech, especially in the presence of background noise, and speech over the phone. Applying the test results to Table VIA, this examination report is found to yield a numerical designation of VI for the right ear (70 to 76 average puretone decibel loss) and a numerical designation of VII for the left (77 to 83 average puretone decibel loss). Entering the category designations from the March 2010 examination into Table VII results in a 30 percent rating under Diagnostic Code 6100. The Board has considered the application of exceptional patterns of hearing impairment. In this case, the Veteran's audiometric testing results reveal puretone thresholds at the 1000, 2000, 3000, and 4000 Hz of 55 dB or greater in both ears. Accordingly, the Board finds that the service-connected bilateral hearing loss disability should be rated as 30 percent disability rating under Diagnostic Code 6100 prior to April 2, 2012. - 12- Hence, an increased evaluation in excess of 30 percent is not assignable based on these test results. D. Beginning on April 2, 2012 An April 2012 VA examination audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT N/A 65 85 95 100+ 86.25 LEFT N/A 70 80 100+ 100+ 87.50 Speech recognition scores were 68 percent in the right ear and 72 percent in the left ear. The examiner noted that the Veteran had difficulty understanding what people were saying, even with hearing aids, and he was unable to understand them unless he was looking at them. Applying the schedular criteria, this examination report yielded a numerical designation of VII in the right ear (82 to 89 percent average puretone decibel hearing loss, with 68 to 74 percent speech discrimination) and a numerical designation of VII for the left ear (82 to 89 percent average puretone decibel hearing loss, with between 68 to 74 percent speech discrimination). Entering the category designations from the April 2012 examination into Table VII results in a 40 percent rating under Diagnostic Code 6100. The Board also has considered the application of exceptional patterns of hearing impairment. - 13- In this case, the Veteran's audiometric testing results reveal puretone thresholds at the 1000, 2000, 3000, and 4000 Hz of 55 dB or greater in both ears. Applying table VIA to the April 2012 right ear audiometric test results yields a level VIII designation (84 to 90 percent average puretone decibel hearing loss) and a level VIII designation (84 to 90 percent average puretone decibel hearing loss) for the Veteran's left ear. After taking into consideration the exceptional patterns of hearing impairment, under Table VII, a numerical designation of VIII for the Veteran's right ear and a designation of VIII for the left ear results in a 50 percent rating under Diagnostic Code 6100. Under 38 C.F.R. § 4.86(a), in applying either Table VI or Table VIA, whichever results in the higher numeral shall be applied. Here, applying Table VIA resulted in a 50 percent rating under Diagnostic Code 6100. Accordingly, the Board finds that the service-connected bilateral hearing loss disability should be rated as 50 percent disability rating under Diagnostic Code 6100 beginning on April 2, 2012. Hence, an increased evaluation in excess of 50 percent is not assignable based on these test results. Extraschedular Considerations Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with - 14- such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). 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 level of disability and symptomatology and is found to be inadequate, the Board must then 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, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board is unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected bilateral hearing loss. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, the Veteran's symptomatology, which includes difficulty hearing and an inability to distinguish conversations in a noisy environment, is specifically contemplated under the ratings assigned in accordance with the established criteria. -15- Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Hence, the Board determines that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. PTSD When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The service-connected PTSD was assigned a 50 percent rating, effective on February 23, 2004, in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R.§ 4.124, including Diagnostic Code 9411. As discussed, in a May 2009 rating decision, the RO assigned an increased evaluation of 100 percent for the service-connected PTSD, effective on October 31, 2007. - 16- Thus, only the rating of the service-connected PTSD for the period prior to October 31, 2007 remains on appeal. Under rating criteria for rating PTSD, a 50 percent disability rating is assigned for a disability picture manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned for occupational and social impairment with deficiencies in most areas, 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 a work-like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. A Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a - 17- higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the criteria ("such symptoms as") provides guidance as to the severity of symptoms contemplated for each rating in addition to permitting consideration of other symptoms particular to the Veteran. Id. The Board is to consider the Global Assessment of Functioning (GAF) scores that have been reported. 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 FOR MENTAL DISORDERS (4th ed.), p. 32). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. A GAF score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A GAF score of 31 to 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 assaults younger children, is defiant at home, and is failing at school). -18- A GAF score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 indicates 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 coworkers). A GAF score of 61 to 70 suggests 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, with some meaningful interpersonal relationships. GAF scores from 71 to 80 represent no more than slight impairment of in social, occupational or school functioning. GAF scores from 81 to 90 represent absent or minimal symptoms. GAF scores from 91 to 100 represent superior functioning in a wide range of activities. See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes). The GAF score is only one factor to be considered in ascertaining the degree of impairment caused by the Veteran's psychiatric illness. The GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). -19- At the outset, the Board notes that the Veteran has been diagnosed by mental health professionals with nonservice-connected psychiatric disorders such as depression, in addition to the service-connected PTSD, during the time relevant to this appeal. To the extent that the effects of psychiatric disability are not readily distinguishable between the various diagnosed psychiatric disorders in the record, the Board has considered all of the Veteran's psychiatric symptoms and diagnoses in reaching its decision regarding entitlement to an increased rating. Mittleider v. West, 11 Vet. App. 181, 182(1998). An April 2004 VA treatment note documented the Veteran's complaints of difficulty sleeping, recurrent nightmares, intrusive thoughts, and decreased energy. The Veteran's mood was noted to have been mildly anxious with a narrow range of affect. The Veteran denied having any active suicidal or homicidal ideations. During VA treatment in August 2004, the Veteran reported having "okay" sleep when he took his prescribed medications. He noted increased irritability and anger due to lengthy divorce proceedings. He stated that he had a "hard time" controlling his temper and liked to be by himself. He complained of a decreased energy level and denied suicidal or homicidal thoughts. The examiner noted that the Veteran had good hygiene and was well groomed. His mood appeared to be euthymic; he demonstrated a full range of appropriate affect; his speech was clear, concise and goal-directed; his thought content was not psychotic or dangerous; his cognitive function appeared intact; and his memory appeared intact. In a December 2004 VA treatment note, the Veteran reported that his divorce was finalized, but he was not allowed to go to the lawyer's office to sign the papers because he attempted to hit the lawyer in the past. He reported being "fairly irritable" and usually meeting someone who made him angry when he was out in public. He related that he mainly stayed to himself, working on an old car, working on his farm, or watching television. He stated that his sleep was poor in that he averaged approximately two to three hours of sleep at a time and had nightmares. He reported having thoughts of suicide that "cross[ed] his mind," but having no -20- plans to act on them. He denied any homicidal ideations. The examiner included mental status examination findings consistent with previous treatment notes. During VA treatment in February 2005, the Veteran complained that he felt "a little irritable, anxious, and nervous." He reported having difficulty sleeping and having nightmares. He indicated that, around people, he became irritable. On two recent occasions, he had gotten angry and thrown items across the room. He denied any suicidal or homicidal ideations. He preferred to be alone. He indicated that he had some paranoia and did not trust anyone. He denied any active auditory or visual hallucinations. The examiner included mental status examination findings consistent with previous treatment notes. A March 2005 VA treatment note documented the Veteran's complaints of continued nightmares approximately one to two times per week. He reported sleeping better when he took his prescribed medication, but often being tired when he woke in the morning. He felt irritable "most of the time." He spent all of his time by himself, but he did have a girlfriend. He did not like to be around other people at all. He reported feeling down, depressed and hopeless at times and denied having any suicidal or homicidal ideations or auditory or visual hallucinations. The examiner noted that the Veteran was neatly dressed with good hygiene and grooming. His mood appeared depressed and anxious, and his affect was congruent with his mood. He became tearful during the treatment session. His thought content did not appear psychotic or dangerous, and his insight and judgment were fair. Cognitive function and memory appeared intact. The examiner included mental status examination findings consistent with the findings reported in the February 2005 VA treatment note. During VA treatment in May 2005, the Veteran reported feeling tired all of the time because he never got sufficient rest. He was not as irritable as he was in the past. He continued to stay by himself, working on his farm with the cattle and walking in the woods. He reported having recent periods of time when he felt like he was "going to loose (sic) control and go crazy." -21- In various statements dated in May 2005, the Veteran's friends and family reported that he had lost interest in work activities; exhibited an increased startle response and hypervigilance; showed signs of hostility being quick to anger, becoming verbally aggressive, and exploding into fits of rage; distanced himself from his friends and family; displayed signs of memory loss and lack of concentration; expressed feelings of hopelessness; and showed signs of fatigue and sleep deprivation. In a July 2005 VA treatment note, the examiner noted that the Veteran was alert and oriented. He was neatly dressed with good grooming and hygiene. He initiated conversation, and his speech was clear with a normal pace and tone. His thought content did not appear to be psychotic or dangerous. The examiner indicated that the Veteran seemed to have some irrational thoughts, "such as believing everyone else [was] the problem." A GAF score of 45 was assigned. In an August 2005 VA treatment note, the Veteran reported sleeping "most of the time pretty good" and having fewer nightmares. His mood was better, and he was not as irritable as he had been in the past. He stated that he was controlling his anger better; however, he had an altercation with his brother recently. He noted a decrease in panic attacks. He denied any suicidal or homicidal ideation and auditory or visual hallucinations. The examiner noted mental status examination findings consistent with the previous findings. A GAF score of 53 was assigned. During a November 2005 VA examination, the Veteran reported having continuing problems with his "nerves" and difficulty sleeping at night. He had nightmares at least once or twice per week and chronic problems with his temper; he was easily irritable, upset and angry and had problems "tolerating people." He reported being so difficult and irritable that his children avoided him and he had two unsuccessful marriages. He was easily startled, and certain noises bothered him. He had recurrent anxiety and panic attacks with heart palpitations, feelings of smothering, and hyperventilation, at least one time per week. He also had flashbacks. He denied any hallucinations or delusions and suicidal ideations. -22- The Veteran reported that he was able to perform activities of daily living, spending time in the woods and he living by himself. He kept some cattle that he sold for money, but was unable to work since 1994 due to complications from a heart attack. He reported having approximately 15 to 30 jobs in the past and being fired a few times. His temper, irritability, and anger "tended to interfere with his employment." On mental status examination, the examiner noted that the Veteran was casually dressed and appeared to be tense, anxious, edgy, depressed, and somewhat tearful at times. He was oriented to time, place, and person. There was no evidence of any active hallucinations or delusions. His attention and concentration were impaired, but his memory, recall and judgment were intact. There was no evidence of any looseness of associations, flight of ideas or pressured speech. There was no evidence of obsessive thoughts or compulsive actions. He denied being actively suicidal or homicidal. A GAF score of 60 was assigned. In a February 2007 VA treatment note, the Veteran reported having some feelings of depression. He stayed away from people so his anger and irritability were "ok." Mental status examination findings were consistent with previous findings. For the period from February 23, 2004 to October 31, 2007, the Board finds that the service-connected PTSD was productive of a disability picture that more closely resembled that of social and occupational impairment with deficiencies in most areas, such as work, family relations, judgment and mood and an inability to establish and maintain effective relationships. In this capacity, the Board observes that the Veteran was assigned GAF scores of 45 in July 2005, 53 in August 2005, and 60 during the November 2005 VA examination. As noted, a GAF score between 41 to 50 reflects severe symptoms and GAF scores between 51 to 60 reflect moderate symptoms. The severity of symptoms demonstrated during this period, in the Board estimation, is best addressed by the assignment of a 70 percent rating. However, the criteria for a schedular 100 percent rating were not met during this period prior to October 31, 2007. -23- Accordingly, on this record, an increased rating of 70 percent, but not higher for the service-connected PTSD is warranted for the period of the appeal prior to October 31, 2007. ORDER An increased rating of 10 percent, but no more for the service-connected bilateral hearing loss disability beginning in January 2007 is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased rating in excess of 10 percent prior to March 11, 2010, in excess of 30 percent disabling prior to April 2, 2012 and in excess of 50 percent disabling beginning on April 2, 2012, for the service-connected bilateral hearing loss disability is denied. An initial evaluation of 70 percent, but not higher for the service-connected posttraumatic stress disorder (PTSD), for the period of the appeal prior to October 31, 2007, is granted, subject to the regulations controlling disbursement of VA monetary benefits. STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals -24-