Citation Nr: 1310313 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-46 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). The Board has reviewed the Veteran's physical claims file and his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The occupational and social impairment from the Veteran's PTSD more nearly approximates reduced reliability and productivity than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran's hearing impairment is no worse than Level II in either ear. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent, but not higher, for PTSD, are met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a compensable disability rating for bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that prior to the initial adjudication of the claims, the Veteran was mailed a letter in March 2010 advising him of what the evidence must show and of the respective duties of VA and the Veteran in obtaining evidence. The March 2010 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. II. Legal Criteria and Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 The Court has held that when the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. PTSD Psychiatric disability is rated under the General Rating Formula for Mental Disorders. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides for a 30 percent evaluation for 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, and mild memory loss(such as forgetting names, directions, recent events). Id. A 50 percent evaluation is assigned for 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 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; difficult establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. A score of 41 to 50 is assigned where there are "[s]erious 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[m]oderate 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)." Id. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Id. at 46. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran was afforded a VA examination in April 2010. At that time, he reported symptoms of flashbacks, intrusive thoughts, nightmares, sleep problems, guilt, a sense of a limited future, inability to recall important aspects, intense physical reaction, that he was easily startled, he had phobias, difficulty concentrating, memory problems, and trust issues. He reported that his symptoms were moderate in severity and that they were constant and continuous. He reported that his symptoms prevented him from completing daily activities as he was irritable and had difficulty concentrating. The Veteran reported a past history of alcohol abuse, which was in remission. He reported that he had good relationships with his parents, siblings, and spouse. He reported that he did not socialize and stayed at his home. He reported he worked for General Motors for 30 years and retired in 1999. On mental status examination, the Veteran's appearance and hygiene were appropriate. He maintained good eye contact during the examination and his behavior was appropriate. His orientation was within normal limits. His affect and mood were normal. His speech, communication, and concentration were within normal limits. Panic attacks and suspiciousness were not present. There was no reported history of delusions or hallucinations, nor were either observed at the time of examination. Obsessive compulsive behavior was absent. The Veteran's thought processes were appropriate. He was able to understand directions, his judgment was not impaired, and his abstract thinking was normal. The Veteran's memory was within normal limits and suicidal and homicidal ideation were absent. The examiner diagnosed PTSD, with alcohol dependence in remission, and assigned a GAF score of 69. The examiner noted the Veteran's PTSD caused persistent avoidance of stimuli associated with the traumatic event, persistent symptoms of increased arousal, difficulty concentrating, irritability and angry outbursts, hypervigilance and exaggerated startle response, restricted range of affect, and markedly diminished participation in activities. The examiner went on to note that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity, and noted that he has difficulty establishing and maintaining effective work and social relationships. Also of record, in the Veteran's paper claims file as well as his "Virtual VA" file, are VA treatment records that show the Veteran receives treatment and medication management for his PTSD at the Oklahoma City VA Medical Center. The VA treatment records document the Veteran's reports of PTSD symptoms including stress, anxiety, sleep disturbances, nightmares, racing thoughts, and obsessive compulsive and ritualistic behavior. Throughout his VA treatment the Veteran was assigned GAF scores ranging from 52 to 65, indicative of moderate to mild impairment. The Board finds that the Veteran is entitled to an initial disability rating of 50 percent for his PTSD. In this regard, the Board notes that the April 2010 VA examination report and the VAMC treatment records show the Veteran to have occupational and social impairment with reduced reliability and productivity. This was manifested by such symptoms as: anxiety, flashbacks, intrusive thoughts, nightmares, sleep problems, guilt, a sense of a limited future, inability to recall important aspects, intense physical reaction, difficulty concentrating, memory problems, racing thoughts, trust issues, irritability, angry outbursts, restricted affect, hypervigilance, exaggerated startle response, avoidance, obsessive and ritualistic behavior, and inability to establish and maintain effective work and social relationships. The Board acknowledges that the results of the VA examination and the symptoms described in the VA treatment records do not indicate that the Veteran experiences all of the symptoms associated with a 50 percent disability rating for PTSD. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to 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). Thus, the Board finds that there is occupational and social impairment with reduced reliability and productivity sufficient to warrant an initial 50 percent disability rating, even though all the specific symptoms listed for a 50 percent rating are not manifested. Consideration has been given to assigning a higher initial disability rating. However, the Board finds that there is no reasonable basis for concluding that the Veteran's occupational and social impairment more nearly approximates deficiencies in most areas than reduced reliability and productivity. In this regard, there is no indication from the evidence of record that the Veteran had occupational and social impairment with deficiencies in most areas due to such symptoms as suicidal ideation; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances; and inability to establish and maintain effective relationships. Furthermore, the evidence of record indicated that the Veteran maintained good relationships with his parents, siblings, and spouse, and that he was able to maintain effective employment for 30 years until his retirement in 1999. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999). Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, there is no objective evidence, or allegation, suggesting that the disability picture presented by the Veteran's PTSD is exceptional or that schedular criteria are inadequate (the symptoms and impairment shown are all encompassed by the schedular criteria for a 50 percent rating). See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Furthermore, there is no indication of factors such as marked interference with employment or frequent hospitalizations (none due to PTSD are shown). Consequently, referral for extraschedular consideration is not warranted. Additionally, at his April 2010 VA examination the Veteran reported that he worked for 30 years at General Motors until his retirement in 1999, and the VA examiner specifically noted that his retirement was not related to his service-connected PTSD, and the VA treatment records show that that Veteran maintains current employment washing cars. Therefore, the matter of entitlement to a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22Vet. App. 447 (2009). Hearing Loss Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based on average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85 (b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). "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 VIa. 38 C.F.R. § 4.85 (d). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. (b) When the pure tone thresholds are 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 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 higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In May 2010, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported that he had been diagnosed with bilateral hearing loss. He reported symptoms of decreased ability to hear or understand bilaterally. On audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 40 55 70 LEFT 15 15 35 60 70 Speech audiometry revealed speech recognition was measured at 84 percent in both the right and left ears. The examiner diagnosed moderate sensorineural hearing loss, bilaterally. The examiner reported that the effect of the Veteran's bilateral hearing loss on his usual occupation was difficulty understanding over the phone and verbal commands in a work setting. The examiner reported that the Veteran's bilateral hearing loss disability affected his daily activities in that he had decreased ability to hear or understand the television, conversations, and the telephone. The Board notes that as the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) was not 55 decibels or more, the Veteran was not qualified for consideration under both table VI and Table VIa, which is reserved for consideration in cases of exceptional patterns of hearing loss. Applying these values to the rating criteria results in a numeric designation of Level II in the right ear the left ear. See 38 C.F.R. § 4.85 , Table VI. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating. The Board notes that the Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board notes that the September 2009 VA examination report has a section titled "Remarks" in which the examiner clearly stated the effects the Veteran's bilateral hearing loss disability had on both his occupational and daily activities. Therefore, the Board finds that the VA examination report is in substantial compliance with the guidelines of Martinak. There is no indication from the record that the Veteran has sought any additional treatment for his bilateral hearing loss. In sum, the Veteran's bilateral hearing loss disability is not shown to be worse than Level II in either ear. These results fall squarely within the schedular criteria for noncompensable rating. The criteria for a compensable disability rating are therefore not met. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999). Extra-Schedular Consideration The Board has also considered whether this matter should be referred to the Director of the VA compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). As noted above, the requirements for extra-schedular consideration require a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. If the criteria reasonably describe the claimant's disability picture, then referral for extra-schedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record reflects that the manifestations of the Veteran's bilateral hearing loss disability, difficulty hearing some sounds, are contemplated by the schedular criteria. There is no indication that the Veteran seeks regular treatment for his bilateral hearing loss disability. Additionally, while the VA examiner noted that the Veteran's bilateral hearing loss resulted in difficulty understanding over the phone and verbal commands in a work environment, there is no indication from the record that this disability has rendered him unable to work. In sum, there is no indication that the average industrial impairment from the disabilities would be in excess of the disability ratings assigned. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Thun, id. ORDER The Board having determined that the Veteran's PTSD warrants an initial 50 percent rating, but not higher, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. . Entitlement to an initial compensable disability rating for bilateral hearing loss is denied disability is denied. ____________________________________________ M.W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs