Citation Nr: 1328788	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  09-42 095A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to a compensable evaluation for bilateral hearing loss.

2.  Entitlement to an increased evaluation for post traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

K. Neilson, Counsel



INTRODUCTION

The Veteran served on active duty from July 1969 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

The instant matters were previously before the Board in November 2012, at which time they were remanded for further development.  Upon completion of the requested development, the Veteran's increased rating claims were readjudicated and denied via a June 2013 supplemental statement of the case (SSOC).  The matters were returned to the Board the following month.  


FINDINGS OF FACT

1.  Since the filing of the Veteran's claim, his bilateral hearing loss has been manifested by hearing impairment corresponding to no worse than auditory acuity Level I in the right ear and Level I in the left ear.

2.  When reasonable doubt is resolved in favor of the Veteran's the evidence shows that the Veteran's PTSD is manifested by symptomatology resulting in a moderate level of overall social and occupational impairment.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  The criteria for a 50 percent disability rating for service-connected PTSD have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), 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.  It also requires VA to notify the claimant and the claimant's representative 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 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.

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Regarding VA's duty to notify with respect to increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). 

The RO received the Veteran's claims for increased evaluations of his service-connected hearing loss and PTSD in September 2007.  In December 2007, the RO sent to him a letter advising him of the need to submit evidence showing that his service-connected disabilities had increased in severity.  The letter advised the Veteran of the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency.  The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates and stated that in determining the appropriate disability rating, the RO would consider the impact of the disability and its symptoms on employment.  The RO informed the Veteran that he should submit evidence regarding how his disability affected his ability to work.  

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the December 2007 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a) and Vazquez-Flores, supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claims.  Accordingly, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims.  All available evidence pertaining to the issues decided herein has been obtained.  The evidence includes the Veteran's VA treatment records, to include those pertaining to his July 2010 audiology evaluation, as well as treatment records dated since August 2012, as required by the Board's earlier remand, and the VA examination reports.  Thus, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied.

Further, the Veteran has been afforded several VA examinations to assess the severity of his service-connected hearing loss and PTSD.  A review of the examination reports reveals that the examiners reviewed the claims folder, considered the Veteran's assertions regarding the severity of his hearing loss and PTSD symptomatology, and provided the appropriate findings for the Board to assess the severity those disabilities in light of the rating criteria.  A March 2013 VA examination reports also addresses the effect of the Veteran's hearing loss on his occupational and social functioning.  The Board finds that the examination reports, along with the VA treatment records, contain sufficient evidence by which to evaluate the severity of the Veteran's disabilities in the context of the rating criteria and throughout the appeal period.  Accordingly, the Board finds that VA has properly assisted the Veteran by affording him adequate VA examinations and that the duty-to-assist requirements have been met.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

II.  Increased Ratings

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern."  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id.  For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2008).  Further, "[w]here 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).

A.  Bilateral Hearing Loss

Here, the Veteran's service-connected hearing loss has been evaluated as noncompensably (zero percent) disabling under 38 C.F.R. § 4.85, DC 6100.  Under DC 6100, hearing loss is evaluated in accordance with the findings obtained on audiometric examination.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (providing that disability ratings for service-connected hearing impairments are determined through mechanical application of the disability rating schedule to the results of audiometric evaluations).  The evaluations assigned for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second).  The degrees of disability for bilateral hearing loss are reflected in eleven auditory acuity levels in the rating schedule, designated from Level I for essentially normal acuity through Level XI for profound deafness.  See 38 C.F.R. § 4.85, DC 6100 (2012).  As set forth in the rating schedule, Tables VI, VIa, and VII are used to calculate the disability evaluation to be assigned.  See id.

VA regulations further provide that in cases of exceptional hearing loss, when the pure tone thresholds 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, and each ear is to be evaluated separately.  38 C.F.R. § 4.86(a) (2012).  When the pure tone threshold is 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 would result in the higher numeral.  38 C.F.R. § 4.86(b).

Relevant to the issue on appeal, results of audiometric testing conducted as part of a January 2008 VA audiology examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
30
35
60
60
LEFT
40
35
65
65

Puretone averages were 46 decibels for the right ear and 51 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear, using Maryland CNC tests.  

Application of the above audiogram results to Table VI reveals Level I hearing acuity in the right ear and Level I hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Level I hearing acuity bilaterally results in a noncompensable disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  Thus, the January 2008 VA examination report does not support the assignment of a compensable disability evaluation.  Id.

VA treatment records show that the Veteran underwent a VA audiology evaluation in July 2010.  It was noted that different styles of hearing aids and relevant assistive devices were discussed, but that the Veteran was not interested in hearing aids at that time.  The note indicates that the Veteran's pure tone auditory thresholds were, in relevant part, recorded as follows:



HERTZ



1000
2000
3000
4000
RIGHT
30
30
55
55
LEFT
40
40
65
65

Pure tone auditory threshold averages were 42.5 decibels for the right ear and 52.5 decibels for the left ear.  The Veteran's speech recognition scores were not recorded, but it was indicated that that the Veteran had excellent word recognition bilaterally.  Because specific speech recognition scores were not recorded, the results of the July 2010 audiology evaluation are not suitable for rating purposes.  See 38 C.F.R. § 4.85.  

The Veteran underwent an additional VA audiological examination and audiogram in March 2013.  At that time, the Veteran's pure tone auditory thresholds were, in relevant part, recorded as follows:



HERTZ



1000
2000
3000
4000
RIGHT
30
30
60
65
LEFT
30
30
70
75

Pure tone auditory threshold averages were 46 decibels for the right ear and 51decibels for the left ear.  The Veteran's speech recognition scores were also recorded to be 94 percent for the right ear and 94 percent for the left ear.  

Application of the March 2013 audiogram results to Table VI reveals Level I hearing acuity in the right ear and Level I hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Level I hearing acuity bilaterally results in a noncompensable disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  Thus, the March 2013 VA examination report does not support the assignment of a compensable disability evaluation.  Id.

In consideration of the evidence of record, the Board finds that, for the entirety of the claim period, audiological evaluations reflect that the Veteran's hearing loss has been manifested by no worse than Level I hearing impairment in the right ear and Level I hearing impairment in the left ear, which results in a noncompensable disability rating under 38 C.F.R. § 4.85, DC 6100.  Notably, there is no other audiometric data dated during the relevant time period, nor does the Veteran assert that his hearing was otherwise evaluated during the relevant time period.  Consequently, the Board concludes that the criteria for a compensable rating have not been met at any point during the relevant time period.  See 38 C.F.R. § 4.85, DC 6100.  The Board in no way discounts the functional impact on the Veteran's bilateral hearing loss, to include wearing hearing aids, difficulty hearing in noisy environments, and asking people to repeat themselves.  However, because hearing loss is a disability requiring a "mechanical application of the rating schedule," the Board cannot find a basis in law or regulation to support a compensable disability evaluation.  See Lendenmann, supra.

The above determination is based upon consideration of applicable rating provisions.  Notably, the audiometric findings do not meet the criteria for an exceptional pattern of hearing loss in either ear.  See 38 C.F.R. § 4.86.  It should also be pointed out that there is no showing that the Veteran's hearing loss has reflected so exceptional or unusual a disability picture as to warrant referral for consideration of a higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2012).  The symptoms of his disability have been reflected by the schedular criteria.  In regards to hearing loss, the March 2013 VA examination report describes the effects of the Veteran's hearing impairment on his occupation and daily life.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  It was noted that the Veteran wears hearing aids, has difficulty hearing in noisy environments, and must ask people to repeat themselves.  Such effects do not take the Veteran's case outside the norm so as to require consideration of a higher evaluation on an extra-schedular basis.  See 38 C.F.R § 3.321(b)(1).  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

Moreover, there is no indication in the record that the Veteran is unemployable in account of his hearing loss.  Although the Veteran is not currently working on account of having retired in 1999 after 31.5 years of working for the railroad industry and it is suggested that his hearing loss may impact his ability to function occupationally on account of the fact that he has difficulty hearing, there is no indication in the record, to include the Veteran's own assertions, that he is unable to work due to his hearing disability.  As such, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the evidence of record as part of the Veteran's claim for an increased rating for bilateral hearing loss.  See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed.Cir.2009) (holding that the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits").

For the foregoing reasons, the Board finds that the claim for a compensable disability rating for service-connected hearing loss must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim for an increased rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

B.  PTSD

The Veteran's service-connected PTSD is evaluated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  Under that DC, a 30 percent rating is assigned 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; mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, DC 9411 (2012).  

A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships.  Id.

Lastly, a 100 percent evaluation is warranted 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 ability 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.

Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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.  See 38 C.F.R. § 4.126(a) (2012).  Furthermore, when evaluating the level of disability arising 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).  It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work.  38 C.F.R. § 4.2 (2012).

In September 2007, the Veteran filed for an increased rating for his service-connected PTSD, asserting that his disability had worsened since he was last examined in 2004.  In January 2008, he was afforded a VA PTSD examination.  The examiner noted that the Veteran was then living with his wife of nine years, with whom he got along with quite well, and was not currently employed.  It was indicated that he was receiving a medical disability pension from the railroad on account of rotary cuff damage and low back pain caused by degenerative disc disease.  His daily activities reportedly consisted of watching television, listening to music with his wife, tending to household chores and minor home repairs, and working on cars.  The Veteran stated that he was responsible for the monthly bills and that he and his wife shared responsibility for cooking and grocery shopping.  The Veteran was noted to have one son with whom he got along well with and saw several times a week, and three stepdaughters with whom he had good relationships.  His hobbies were listed as fishing and playing golf.  The Veteran also reported a social network of other veterans and stated that he was a member of a Masonic Lodge, as well as the Shriners.  

The examiner recorded the Veteran's psychiatric symptoms to include nightmares twice a week, intrusive thoughts daily, heightened startle response, nervousness, avoidance, problems concentrating, memory problems, and sleep disturbances.  The Veteran stated that his symptoms had improved with medication.  The Veteran denied a history of violence, assaultiveness, and suicide attempts.  The examiner stated that the Veteran's overall psychosocial functioning status was fairly good.

Mental status examination revealed no impairment of thought process or communication, no delusions, hallucinations, or other gross symptoms of active psychotic process.  His eye contact was fair and interaction within normal limits, with no grossly inappropriate behavior noted.  Suicidal and homicidal thoughts, ideations, plans, or intent were denied.  His hygiene and grooming were reasonably good and the Veteran was oriented times three.  The Veteran reported problems with memory, which the examiner stated appeared to be with his concentration.  As to his inability to remember things, the examiner stated that his "best guess" was that that phenomenon was caused by transient ischemic attacks.  The examiner also noted intrusive memories, but stated there was no evidence of classic obsessive thought patterns. Rate and flow of speech were within normal limits, perhaps slightly slow, and there were no grossly irrelevant, illogical, or obscure speech patterns.  Evidence of panic attacks was not present, but it was noted that when the Veteran was surprised from behind, he experienced a startle reaction and would sometimes feel a surge of anxiety that is near panic level.  Overall, the Veteran reported his mood to be "pretty good" with mild anxiety symptoms on many days.  The Veteran denied impaired impulse control.

Overall, the examiner indicated that severity of the Veteran's symptoms to be moderate in nature and the Veteran was assigned a Global Assessment of Functioning (GAF) of 55.  The examiner stated that, in consideration of the information contained in a November 2004 VA examination report and in the VA treatment reports of record, the Veteran psychosocial functioning was somewhat worse than it was at the time of the November 2004 VA examination.  The examiner noted a higher level of certain symptoms, particularly excessive startle response and more frequent serious nightmares, and stated that the increased severity of those symptoms impacted the Veteran's overall functioning and produced reduced reliability and productivity.

VA mental health treatment records dated in May 2008 record a GAF score of 55.  At that time it was noted that nearly a year had passed since the Veteran was last seen in mental health.  An April 2009 treatment entry indicated that the Veteran was low risk for suicidal behavior.  A mental health outpatient note recorded a GAF score of 60 and it was noted that the Veteran would continue to take his medication as prescribed.  Suicidal and homicidal ideations were denied, as were hallucinations and delusions.  The Veteran's insight and judgment were noted to be fair, speech normal, mood euthymic, affect congruent, and thought process goal directed and logical.  A June 2009 mental health progress note indicated that the Veteran and his wife were separated and that the Veteran believed divorce was "close at hand."  A GAF score of 60 was recorded and mental status findings similar to those recorded in April 2009 were noted.  In September 2009, the Veteran reported getting along well in the home, stating that his wife's alcohol use had subsided.  A GAF score of 60 was recorded.  In January 2010, it was noted that the Veteran was planning a golf trip in March with 24 other golfers.  A GAF score of 60 was recorded and mental status findings similar to those recorded in April 2009 were noted.  July 2012 treatment notes recorded GAF scores of 55 and 56.  At that time, the Veteran reported that he was still married and that he and his wife got along fairly well.  He was oriented times four, his thoughts were logical and goal directed, memory for remote, recent, and immediate information was intact, judgment normal, speech normal, mood depressed, and affect anxious.  The Veteran reported auditory and olfactory hallucinations related to incidents in service.  Hallucinations did not appear to be present in August 2012 and a GAF score of 60 was then recorded.  

The Veteran was afforded another VA PTSD examination in March 2013.  The examiner noted that the Veteran was then living with his wife of 15 years, reported having friends, indicated golfing every Wednesday, and belonged to the Shriners and a Masonic Lodge.  

The examiner recorded the Veteran's psychiatric symptoms to include nightmares, intrusive thoughts, avoidance, feelings of detachment or estrangement, restricted range of affect, sleep disturbance, hypervigilance, and exaggerated startle response, which symptoms were noted to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.  The Veteran denied irritability, difficulty concentrating, and avoidance of specific activities, noting that he had watched Platoon last week with no problem.  Mental status examination revealed that the Veteran was oriented times three and that his thoughts were logical and goal directed, speech clear and fluent, dress casual, and judgment and insight intact.  Suicidal or homicidal ideation was not endorsed.

The examiner indicated that the Veteran continued to meet the diagnostic criteria for PTSD, the severity of which was considered mild in terms of both symptom presentation and psychosocial dysfunction.  The examiner noted that Veteran's belief that his symptoms were worse last year but after the diagnosis and treatment of diabetes, he had experienced a significant improvement in overall functioning.  Overall, the examiner found the Veteran to be relatively stable with some psychosocial dysfunction but an ability to maintain some meaningful relationships and daily activities, noting that he continued to take care of all bills and daily activities of living with no problem.  The examiner assigned a GAF score of 61 and checked the box indicating that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.

Given the evidence contained in the VA treatment records and the VA examination reports, and in consideration of the benefit-of-the-doubt doctrine, the Board finds that the Veteran's PTSD more nearly approximates the criteria required for a 50 percent rating, but not higher.  In this regard, the Board points out that in evaluating the severity of the Veteran's PTSD, "it is not the symptoms, but their effects, that determine the level of impairment."  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  In assessing the evidence of record, it is also important to note that the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994) (DSM-IV).  During the relevant time period, the Veteran's GAF scores have ranged from 55 to 61.  A GAF score of 51-60 is defined as: "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)."  Id.  A GAF score of 61-70 is defined as: "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, has some meaningful interpersonal relationships."  Id.

In the instant case, the Veteran has endorsed nightmares, intrusive thoughts, exaggerated startle response, nervousness, avoidance, problems concentrating, memory problems, sleep disturbances, a depressed mood, anxiousness, auditory and olfactory hallucinations, and feelings of detachment or estrangement.  While these symptoms are not all suggestive of the 50 percent rating criteria, the Board finds highly probative the fact that a multitude of VA clinicians assigned to the Veteran GAF scores that reflected their determination that the Veteran's PTSD symptoms were moderate in degree.  The Board also finds probative the fact that the January 2008 VA examiner found that the Veteran's psychosocial functioning had decreased since November 2004 VA examination, which was the basis for the assignment of his initial 30 percent disability rating.  The examiner stated that the increased severity of the Veteran's symptoms impacted his overall functioning and produced reduced reliability and productivity, which finding is supportive of a 50 percent disability rating.  Although the most recent VA examiner assigned a GAF score of 61 and stated that the Veteran's PTSD was considered mild in terms of both symptom presentation and psychosocial dysfunction, the examiner also indicated that the Veteran's symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning.  Given the inconsistency in the examiner's findings, the Board finds that when reasonable doubt is resolved in favor of the Veteran, the evidence supports a disability rating of 50 percent.

Overall, however, the Board finds that the evidence of record fails to support a rating greater than 50 percent at any point during the relevant time period.  Notably, the Veteran has exhibited few symptoms of like kind to those associated with a 70 percent disability rating, save for his endorsement of auditory and olfactory hallucinations.  He clearly does not have problems tantamount to suicidal ideation, obsessional rituals, near-continuous panic attacks or depression that affects his ability to function independently.  There is no evidence of spatial disorientation, or neglect of personal appearance and hygiene.  His insight and judgment has also been described as fair or intact.  The evidence also fails to show that the Veteran is unable to maintain effective relationships.  While some marital difficulty is suggested, the evidence indicates that any strain in that relationship is not due to the Veteran's mental health problems, but rather to his wife's use of alcohol.  The Veteran also maintains a social network of fellow golfers and is a member of a fraternal organization.  Accordingly, because the evidence fails to show deficiencies in most areas due to symptoms equivalent in severity to those listed in the rating criteria for a 70 percent rating, the Board finds that a rating is excess of 50 percent is not warranted.  See Vazques-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) (holding that entitlement to a 70 percent rating "requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation").

The Board has considered whether the Veteran's PTSD has resulted in total social and occupational impairment, such that a 100 percent schedular evaluation is warranted, but finds that it has not.  The Veteran had been married to his wife for 14 years, he maintains relationships with his children, has friends outside of his family, and is a member of the Shriners and a Masonic Lodge.  Thus, regardless of the degree of occupational impairment, the evidence does not demonstrate that he is totally impaired.  Accordingly, there is no basis upon which to assign a 100 percent rating.  See 38 C.F.R. § 4.130, DC 9411 (requiring "[t]otal occupational and social impairment" to establish entitlement to a 100 percent disability evaluation under the general rating formula for mental disorders) (emphasis added).

The above determinations are based upon consideration of applicable rating provisions.  The Board finds that the Veteran's disability level and symptomatology is adequately described by the rating criteria.  Indeed, the Veteran's symptomatology, to include nightmares, intrusive thoughts, heightened startle response, nervousness, avoidance, problems concentrating, memory problems, hallucinations, anxiety, and sleep disturbances, are exactly the type of symptomatology contemplated by the rating criteria set forth under the general formula for rating mental disabilities.  Without sufficient evidence reflecting that the Veteran's disability picture is so "exceptional or unusual," such that the available schedular evaluation for his service-connected psychiatric disability is somehow inadequate, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  See Thun, supra; 38 C.F.R. § 3.321(b)(1).

Lastly, the Board notes that the evidence fails to suggest that the Veteran is unemployable or incapable of securing and maintaining substantially gainful employment on account of the PTSD.  Here, the evidence shows that the Veteran is retried and in receipt of a medical disability pension due to orthopedic disabilities.  Further, no VA clinician has indicated that the Veteran's PTSD would preclude him for obtaining employment.  Accordingly, the issue of entitlement to TDIU has not been raised as part of his increased rating claim.  See Comer and Rice, both supra.  


ORDER

Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied.

Entitlement to a disability rating for PTSD of 50 percent is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs