Citation Nr: 1324302 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-16 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial rating greater than 70 percent disabling for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The evidence as to a relationship between the Veteran's currently diagnosed tinnitus and his military service is in equipoise. 2. The Veteran's PTSD is manifested by less than total social and occupational impairment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. The criteria for an increased rating for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). An April 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA treatment records, and identified private records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. An August 2011 VA internal inquiry with the Social Security Administration (SSA) noted no records concerning the Veteran. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The VA examinations discussed below are adequate for rating purposes. Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Claim Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records do not reflect reports or diagnoses of tinnitus; on the Report of Medical History at the time of his February 1970 service separation, the Veteran denied "running ears." However, the Veteran reported at his October 2008 VA audiology examination that he had experienced constant tinnitus since Vietnam. He reported being exposed to bombs, traps, grenades and artillery while serving in an infantry unit there, with no hearing protection. Review of the Veteran's service personnel records confirm that the Veteran served in an infantry unit while stationed in Vietnam. Accordingly, in-service exposure to acoustic trauma is conceded. At the October 2008 VA audiology examination, the Veteran reported post-service employment as a shoe salesman, insurance salesman, and electrician, denying a history of civilian occupational or recreational noise exposure. The examiner concluded that it was not at likely as not that the Veteran's tinnitus was related to his military service on the basis that there was no documented tinnitus in the Veteran's service treatment records, and a lack of acoustic damage documented on service separation. A February 2010 private audiology report did not address tinnitus, but did note that the Veteran had advanced hearing loss explained by a component of noise-induced hearing loss, with no retrocochlear indications. After review of the record, the Board finds that the evidence is in equipoise as to the nexus between the Veteran's tinnitus and his military service. Although the Veteran denied "running ears" at separation from service, it is conceivable that the Veteran did not associate the tinnitus he reports having experienced as "running" of the ears. Tinnitus can take many forms, such as ringing, buzzing, roaring, or clicking. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1914 (30th ed., 2003). VA has already conceded that the Veteran had in-service exposure to acoustic trauma, based on his participation in an infantry unit while stationed in Vietnam; partially on that basis, service connection for hearing loss has already been awarded. Since the absence of such damage was the basis for the VA examiner concluding tinnitus was unrelated to service, it is reasonable to conclude that with the presence of such damage established, tinnitus may be considered to be related to military service. Resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. Increased Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The record reflects that an October 2008 rating decision granted service connection for PTSD and assigned a 30 percent rating effective March 20, 2008, the date of the Veteran's original claim for benefits. Subsequently, a July 2011 rating decision increased the assigned evaluation to 70 percent disabling, also effective March 20, 2008. An October 2011 rating decision granted entitlement to a total disability rating for compensation on the basis of individual unemployability, also effective March 20, 2008. The Veteran continues to assert that a 100 percent rating for PTSD is warranted. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 70 percent rating is warranted where the disorder is manifested by 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 that is 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula. The maximum 100 percent rating is warranted when the disorder is manifested by 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; memory loss for names of close relatives, own occupation, or own name. Id. Ratings of psychiatric disabilities shall be assigned 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. However, a rating shall not be assigned on the basis of social impairment. 38 C.F.R. § 4.126(b). Further, 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). The Global Assessment of 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 GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends). American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV). A GAF of 31-40 is defined as exhibiting some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school). Id. A GAF score of 41-50 is assigned where there are 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). Id. After review of the record, the Board finds that the evidence does not support a 100 percent schedular rating for PTSD at any time during the appeal period. Throughout the appeal period, the Veteran has reported an on-off relationship with a girlfriend, that he has one friend from his old job, and relationships with his brother via phone and a daughter from his second marriage. He reported, at the March 2011 VA examination, having tried to return to deer hunting, something he previously reported being difficult due to it causing flashbacks to his Vietnam experience. By the Veteran's own report, none of these relationships are very close, but difficulty or inability to maintain social relationships are contemplated by the 50 and 70 percent ratings for PTSD, respectively. He also repeatedly and consistently reports that he self-isolates due to his own perceived potential to come into conflict with others, and two different examiners commented that during their evaluation, the Veteran either wore a dirty shirt or smelled of body odor. However, these symptoms are also contemplated by the currently assigned 70 percent rating. Simply put, the degree of social impairment required for a 100 percent rating - having no friends and, essentially, no interest in engaging with the outside world - is not demonstrated. VA has already awarded the Veteran a TDIU based on his inability to obtain and maintain substantially gainful employment, effective March 2008. However, Dr. Liss's opinion that the Veteran has had total occupational and social impairment since March 2008 is not probative, as it is predicated entirely on a single GAF score (30) given at one interview, and the remainder of the evidence both reflects and supports the higher given GAF scores. Conversely, the Veteran reported at the February 2010 VA examination that he had periodically worked as an electrician on a part-time basis, but expressed concern that even if he were hired for regular employment he might not last at the job due to his inability to get along with others. This statement is credible, as it is supported by the evidence of record and more importantly, the primary basis of the TDIU award (which does not require total occupational impairment, only that a claimant cannot secure and maintain substantially gainful employment). While Dr. Liss's letter states the criteria for a 100 percent disability rating for PTSD, it does not actually conclude that the Veteran displayed those symptoms, and the remainder of the record does not reflect that the Veteran's symptoms are so severe as to result in total occupational impairment. The record reflects that the Veteran reported his first suicide attempt in the 1980s, using carbon monoxide. However, he reported at the October 2008 VA examination that he is glad he survived it. He also reported in later evaluations that on a recent occasion, he took one of his guns and sat with it in his lap. While this is later referred to in several records as a second suicide attempt, the Veteran repeatedly denied that he would ever act on such suicidal ideations, (see the February 2010 VA examination and the March 2010 private evaluation) and on several other occasions during the appeal period denied experiencing suicidal ideations at that time. Thus, while suicidal ideations - consistent with the currently assigned 70 percent rating - are documented, they do not appear to be persistent, and the evidence does not suggest that the Veteran is a danger to himself. Assigned GAF scores are 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) (2012). The record reflects that the Veteran's GAF scores through the appeal period range from a low of 30 in Dr. Liss's March 2010 letter, to a high of 55 (assigned solely for social impairment) at the February 2010 VA examination. The Board rejects as not probative the GAF score of 30 given to the Veteran by Dr. Liss. [Interestingly, in the same letter, Dr. Liss opines that the GAF scale is not appropriate for use in veterans' compensation claims, especially for Vietnam veterans, as only Vietnam veterans understand the environment and experience.] As enumerated above, a GAF score of 30 contemplates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment, as well as inability to function in almost all area. This is simply not shown by the evidence of record; the Veteran has denied hallucinations and delusions, and Dr. Liss's suggestion that the Veteran disassociates during his periods of anxiety as noted in the March 2010 letter are not documented anywhere else in the record, or more importantly, reported by the Veteran himself. To that end, the remaining GAF scores of 35-50 appear to more closely contemplate the Veteran's true symptomatology picture. It is clear that the Veteran has major impairment in several areas, such as work, family relations, judgment and mood. Through the appeal period, while the severity of these impairments varies, his anger, irritability, and depression warrant the 70 percent rating currently assigned, especially considering that the Veteran's co-diagnosis of alcohol dependence, related by the March 2011 VA examiner to the Veteran's Vietnam service and for which the Veteran has repeatedly refused treatment, appears to be a self-medicating mechanism, the proximate result of the Veteran's depressive symptomatology, and clear evidence of his impaired judgment. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) , for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's PTSD, such that it impairs his social and occupational functioning, manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's PTSD and referral for consideration of extraschedular rating is not warranted. The Veteran's anger, irritability, depression, and history of suicidal ideations clearly warrant the currently assigned 70 percent rating. However, neither total social or occupational impairment is shown, in light of the Veteran's varied social network and periodic employment, coupled with consistent mental status reports of a lack of delusions, hallucinations, inappropriate behavior, or more than minimal hygiene issues. For these reasons, the preponderance of the evidence is against the claim. There is no doubt to be resolved, and greater than a 70 percent initial rating for PTSD is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted, subject to the applicable regulations concerning the payment of monetary benefits. An increased rating for PTSD is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs