Citation Nr: 1313288 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-30 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable rating for left ear hearing loss. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Timothy M. White, Attorney WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from February 1969 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2009, the RO implemented the Board's February 2009 decision granting service connection for PTSD, and assigned a 50 percent rating, effective September 26, 2005. The RO denied entitlement to a TDIU in July 2010. In November 2010, the RO granted service connection for left ear hearing loss assigning a 0 percent rating, effective July 22, 2010, but denied service connection for right ear hearing loss. In August 2011, the Veteran and his wife testified before the undersigned Veterans Law Judge at a Board video conference hearing at the RO. The issues of entitlement to service connection for major depressive disorder and panic disorder, secondary to PTSD have been raised by the record via a statement submitted by the Veteran's representative in July 2010, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran is presently rated 50 percent disabling for his PTSD. He was last evaluated for this disability in a compensation and pension examination on June 14, 2010. He and his wife presented testimony at the August 2011 Board hearing, however, that the severity of the Veteran's PTSD had worsened in the last year. His wife testified that his nightmares were more frequent and he had had more verbal abuse toward her in the last few weeks. She noted that the flashbacks were not new but it seemed like they had escalated. She indicated that recently she and the Veteran went to a Vietnamese restaurant and they had to leave because it seemed like he was having a flashback. She also mentioned that the Veteran did not have a relationship with anyone else besides her. The Veteran testified that he stopped working on June 22, 2010, so several days after his last VA examination, in part, because of his PTSD symptoms. He said that he was having problems keeping up with his duties, concentrating, and completing tasks. He also mentioned that he broke his hand, which prompted him to stop working but that his PTSD symptoms prevented him from going back to work. His wife also testified that she noticed an increased difficulty in the Veteran's ability to handle stress at work prior to him stopping work. The fulfillment of the duty to assist includes the conduct of a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Given that the Veteran has asserted that the severity of his PTSD symptoms has worsened since it was last evaluated for compensation and pension purposes, a new examination should be provided. Regarding the Veteran's hearing loss, his wife also testified that she had noticed an increase in severity of his hearing loss since he was last evaluated in October 2010, in that the television volume would have to be even louder. She also noticed that even when she is standing next to him she would have to repeat herself. The Veteran is presently rated as 0 percent disabling for his left ear hearing loss. Service connection for the right ear was denied on the basis that the October 2010 VA audiology examination did not show right ear hearing loss for VA purposes. For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Given that the Veteran's wife has submitted testimony that the Veteran's hearing loss has increased in severity, however, it is not clear if the Veteran is entitled to a higher rating for his service-connected left ear, or whether the severity of hearing loss in his right ear would now be sufficient to be considered a hearing loss disability for VA purposes. For this reason another audiology examination is warranted, as well. With respect to the Veteran's claim for a TDIU, the RO denied this matter because evidence of record showed that the Veteran was still working. The Veteran has testified, however, that he has since stopped working due, in part, to his PTSD symptoms. Therefore another examination is warranted to address the Veteran's employability status, as well. A May 2009 VA examination report notes that the Veteran had held approximately 34 jobs between 1970 and 2005 with 2 to 5 years of unemployment, which the Veteran attributed to his PTSD symptoms. He indicated that each job lasted approximately 2 to 4 months before he was either fired or quit. He claimed difficulty working because of feeling "boxed in". He also was mistrustful of others and easily angered, which led to social problems at work. A June 2010 VA examination report also noted that the Veteran had difficulty working with others because of his PTSD symptoms causing him to be easily irritated and angry. When he was irritated he would have a hard time completing tasks. Any ongoing, relevant VA treatment records from the Muskogee VAMC and Tulsa Outpatient Clinic should be obtained on remand, as well. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain relevant VA treatment records from the Muskogee VA treatment facilities and Tulsa Outpatient Clinic dated since September 2010. If efforts to obtain the additional records are unsuccessful, make a formal finding on the unavailability of these additional records and notify the Veteran of this and explain any further actions VA will take regarding his claims. 38 C.F.R. § 3.159(c)(2), (e)(1). 2. Following completion of the above, schedule the Veteran for an appropriate examination to determine the severity of his service-connected PTSD. Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination. Any indicated tests and studies are to be conducted. Following examination of the Veteran, the examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are specifically attributable to his service-connected PTSD. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the Veteran's PTSD on his social and occupational adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. The examiner also should state whether the Veteran's service-connected PTSD and hearing loss, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner also should consider the previous VA examination reports provided in May 2009 and June 2010. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the Veteran for a VA audiological examination. The claims file must be made available to, and reviewed by, the examiner. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The results of puretone threshold testing for 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition testing using the Maryland CNC test are to be reported. The examiner should conduct a thorough audiological evaluation. The examiner must also provide a full description of the functional effects caused by the bilateral hearing loss. The examiner also should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right ear hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, including noise exposure (including from combat noise, such as weapons fire, artillery fire, heavy vehicles, heavy equipment, rocket and mortar attacks). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Ensure the examiner's opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 5. Then readjudicate the claims in light of the additional evidence. If any claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and provide time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).