Citation Nr: 1338656	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  10-17 262	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement an increased rating for posttraumatic stress disorder (PTSD), currently rated 50 percent disabling.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to December 1968.

These matters come before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  In that decision, the RO, among other things, denied entitlement to service connection for tinnitus and denied an increased rating for PTSD, then rated 30 percent.  After the Veteran appealed, the RO in April 2010 granted an increased rating of 50 percent, effective the date of claim.  The Veteran continues to seek a higher rating.

In July 2012, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record.

In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case.  A review of the documents in the Virtual VA paperless claims file reveals VA treatment records that are relevant to the issues on appeal.


FINDINGS OF FACT

1.  The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service acoustic trauma.

2.  The overall level of impairment caused by the symptoms of the Veteran's PTSD has throughout the appeal period most nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment.


CONCLUSIONS OF LAW

1.  With reasonable doubt resolved in favor of the Veteran, tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.   The criteria for a rating of 70 percent, but no higher, for PTSD have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

As the claim for entitlement to service connection for tinnitus is being granted, and this constitutes a full grant of the benefit sought, further discussion of the VCAA with regard to this claim is unnecessary.  As to the increased rating claim, in a January 2009 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to an increased rating for PTSD.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  In any event, the January 2009 letter complied with this requirement.

The Veteran has substantiated his status as a veteran.  The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the January 2009 letter.  The January 2009 letter also provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records.  The Veteran was also afforded multiple VA examinations as to the severity of his PTSD.  For the reasons indicated below, these examinations were adequate.

Moreover, during the July 2012 Board hearing, the undersigned explained the issues on appeal, and asked questions designed to elicit information in support of each claim.  These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claims for entitlement to service connection for tinnitus and an increased rating for PTSD are thus ready to be considered on the merits.

Analysis

Service connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In this case the Veteran was diagnosed with tinnitus on the December 2011 VA examination and in the VA treatment records and has thus met the current disability requirement.  He also served in Vietnam and received the Marine Combat Operations insignia.  Although this insignia does not in and of itself show that the Veteran engaged in combat with the enemy, see VA Adjudication Manual Rewrite, M21-1MR, Part IV, Subpart ii, 1.D.13.d (June 6, 2011), the Board finds that the other evidence of record shows that the Veteran did in fact engage in combat with the enemy.  See VAOPGCPREC 12-99 (October 18, 1999) (whether a Veteran engaged in combat with the enemy is a determination to be made on a case-by-case basis).  As indicated in the RO's December 2007 decision granting entitlement to service connection for PTSD, the Veteran's claimed stressor of coming under mortar and rocket fire during combat operations was verified by a January 1968 Vietnam Military Assistance Command summary indicating his unit received a mortar attack on January 26, 1968 and fire was exchanged.  This evidence shows that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and therefore engaged in combat with the enemy.

The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred.  Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C.A. § 1154(b)).  The Board therefore accepts the Veteran's testimony that he suffered acoustic trauma in service.  Moreover, the fact that the claimed cause of the Veteran's tinnitus, i.e., acoustic trauma from helicopter and related noise, is therefore established by his testimony, does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disability itself while in service.  Reeves, 682 F.3d at 999.  In this case, the Veteran has candidly conceded that he could not say precisely when he began experiencing tinnitus, although he experienced symptoms such as blockage and hearing the sound of a drumroll in service.  See, e.g., Board Hearing Transcript, at 18.

Based on the above evidence, the Board finds that the lay testimony of this combat veteran is sufficient to establish service connection in the circumstances of this case.  Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony regarding observations of symptoms "may provide sufficient support for a claim of service connection, and it is error for the Board to require medical evidence to support that lay evidence").  Here, the Veteran suffered acoustic trauma in service, is uncertain of precisely when he began to experience ringing or buzzing in the ears, and experienced some symptoms relating to the ears in service.  The negative nexus opinions of the March 2010 and December 2011 VA examiners were based on the report of the onset of tinnitus about 10 to 15 years previously and the absence of complaints of tinnitus in the STRs.  Given the Veteran's subsequent credible statements expressing uncertainty as to the precise date of onset of tinnitus and the fact that 38 U.S.C.A. § 1154(b) allows a combat veteran to use lay evidence to establish that he incurred a disability in service, even in cases where "there is no official record" that such disability was incurred, the Board finds that the medical opinions lack probative value because they are based on an inaccurate factual premise.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative).  The evidence is thus at least evenly balanced as to whether current tinnitus is related to in-service acoustic trauma.  As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran,  entitlement to service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Increased Rating

The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  All psychiatric disabilities, however, are evaluated under the General Rating Formula for Mental Disorders (general rating formula).  Pursuant to the general rating formula, a 50 percent rating is warranted 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 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 effective work and social relationships.

A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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.

A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). A score in between 51 and 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers).

The evidence throughout the appeal period reflects that the Veteran's PTSD symptoms have caused an overall level of impairment most nearly approximating the criteria for a 70 percent rating.  On the March 2010 and December 2011 VA examinations, the examiners wrote that the Veteran reported no current suicidal ideation.  In a March 2008 statement, however, the Veteran indicated that he had suicidal thoughts every time he got upset and thought of ways of ending his life.  The Board finds the Veteran's statement that he has thought of killing himself to be a symptom that is similar to, or of similar severity as, the suicidal ideation listed in the criteria for a 70 percent rating.

On the March 2010 VA examination, the Veteran reported that he rarely left the house because he could not stand being in crowds, having no close friends outside his family, having lost interest in social activities, and not wanting to make friends or be around people.  Examination showed an anxious mood, chronic sleep impairment, inappropriate behavior such as raising his voice to family members approximately three times per month, and moderate problems with shopping, traveling, and other recreational activities.  The Veteran reported experiencing intrusive, trauma-related thoughts every day, and psychological arousal in response to trauma related cues every day.

On the December 2011 VA PTSD examination, the Veteran reported an incident in which he broke his daughter's cell phone when angry at her behavior, and she called 911 to report the incident.  The symptoms indicated by the examiner from those listed in the criteria in the general rating formula were anxiety, chronic sleep impairment, mild memory  loss, and difficulty in establishing and maintaining effective work and social relationships.  There were, however, many symptoms noted in addition to those in the general rating formula.  These included loss of interest in outside activities, outbursts of anger including one involving destruction of property.
The above evidence reflects that the Veteran has had symptoms listed in the criteria for 30, 50 and 70 percent rating, or their equivalents, such as chronic sleep impairment (30 percent), difficulty in establishing and maintaining social relationships (50 percent) and impaired impulse control and suicidal ideation or its equivalent (70 percent).  As to the examiners' characterization of the severity of the Veteran's PTSD, the March 2010 VA examiner indicated that there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning.  She also indicated that the prognosis was guarded based on the severity of symptoms and the GAF score was 55.  The December 2011 VA examiner indicated that there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self care and conversation.  The GAF score was 60.  The examiners' characterization of the level of disability and the GAF scores they assign are neither dispositive nor binding on the Board, however.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) ("The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability").  The above evidence reflects both that the Veteran has had symptoms listed in the criteria for a 70 percent rating and that his symptoms have caused deficiencies in many areas.  The evidence is thus approximately evenly balanced as to whether the overall level of impairment caused by the symptoms of the Veteran's PTSD have more nearly approximated that indicated by the criteria for a 50 and 70 percent rating.  As the reasonable doubt created by this approximate balance of the evidence must be resolved in favor of the Veteran, a 70 percent rating is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

A higher, 100 percent schedular rating is not warranted, however, because the Veteran's symptoms have not at any time during the appeal period caused overall impairment more nearly approximating the total occupational and social impairment in the criteria for a 100 percent rating, and the Veteran has not had the symptoms listed in these criteria.  The VA examination reports and VA treatment records have reflected that the Veteran has generally been oriented in all spheres with adequate thought process, communications, and behavior, with only mild memory loss and an ability to perform the activities of daily living, although with moderate impairment as to some of them.  Although the Veteran stated during the Board hearing that he had difficulties in his relationship to his wife of approximately 40 years, he also indicated on the VA examinations that his relationship with his children, grandchildren, and siblings has been good.  Moreover, although the Veteran indicated during the Board hearing that he spoke to his deceased cousin, he consistently denied hallucinations on mental status examinations, and it therefore cannot be said that he had the persistent delusions or hallucinations listed in the criteria for a 100 percent rating.  As the Veteran's symptoms did not more nearly approximate the criteria for a 100 percent rating, or reflect that they were evenly balanced between the criteria for 70 and 100 percent ratings, a higher rating of 100 percent is not warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted.

The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria.  As shown above, the criteria include both the symptoms listed and the overall level of impairment.  Moreover, as noted, the courts have indicated that the general rating formula requires an analysis of whether the symptoms or others of similar severity, frequency, and duration cause the level of impairment required for the appropriate rating.  The Board has thus considered all psychiatric symptoms indicated in lay and medical evidence and not only those listed in the general rating formula, as well as the overall level of impairment, in arriving at the 70 percent rating, and consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required.  In any event, the evidence does not reflect that there has been marked interference with employment or frequent hospitalization.  The Veteran has not been hospitalized for his PTSD and indicated on the December 2011 VA examination that he was no longer working after retirement due to age or duration of work.  The December 2011 VA examiner found that the Veteran remained employable from a mental health standpoint, although he might be better suited for employment in positions not requiring him to work with large groups of people.  This evidence thus reflects that there has not been marked interference with employment, i.e., beyond that recognized by the 70 percent rating, and also reflects that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the evidence of record as part of the Veteran's increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).

For the foregoing reasons, a rating of 70 percent, but no higher, is warranted for the Veteran's PTSD.




ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement a rating of 70 percent, but no higher, for PTSD is granted, subject to controlling regulations governing the payment of monetary awards.



____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs