Citation Nr: 1343476	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  06-24 542	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
 
 
THE ISSUES
 
1.  Entitlement to an initial compensable evaluation for a bilateral hearing loss.
 
2.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD).
 
 
REPRESENTATION
 
Appellant represented by:  Disabled American Veterans
 
 
WITNESS AT HEARING ON APPEAL
 
Appellant
 
 
 
 
ATTORNEY FOR THE BOARD
 
Mary E. Rude, Associate Counsel
 
 
INTRODUCTION
 
The Veteran served on active duty from December 1966 to November 1968.
 
These matters come before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The case was certified to the Board from the RO in Los Angeles, California.
 
The Veteran testified before the undersigned at a March 2012 hearing.
 
This appeal was previously remanded by the Board in July 2012 to the Appeals Management Center (AMC) for additional development.  The AMC completed the requested development, and the case has been returned to the Board for further consideration.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 
 
In addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims.  A review of the documents in such file reveals that they include VA treatment records relevant to the issues on appeal. 
 
 
FINDINGS OF FACT
 
1.  The Veteran's bilateral hearing loss is not manifested by worse than a Level IV hearing loss in the right ear and a Level II hearing loss in the left ear.
 
2.  Resolving reasonable doubt in the Veteran's favor, between November 23, 2004 and August 25, 2006, PTSD was manifested by severe symptoms causing occupational and social impairment with deficiencies in most areas, but not by total occupational and social impairment.

3.  For all other periods covered by the appellate term, the Veteran's posttraumatic stress disorder was not manifested by severe symptoms causing occupational and social impairment with deficiencies in most areas.
 

CONCLUSIONS OF LAW
 
1.  The criteria for a compensable evaluation for bilateral hearing loss have not 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, 4.3, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).
 
2.  The criteria for a 70 percent disability rating, but no higher, for PTSD were met from November 23, 2004 and August 25, 2006.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012).
 
3.  The criteria for an evaluation in excess of 50 percent for PTSD were not met at any other time during the appellate term.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411.

 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
 
Veterans Claims Assistance Act
 
In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in correspondence dated in April 2004, March 2006, and May 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability evaluations and effective dates are assigned.
 
VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim.  The claims file contains the Veteran's service treatment records, VA medical records, the reports of various VA examinations, records obtained from the Social Security Administration, the transcript of the March 2012 hearing testimony, and various lay statements of the Veteran and his stepsister.  Pursuant to the July 2012 remand, all VA treatment records since July 2010 have been acquired, and the Veteran was afforded additional psychiatric and audiological examinations.  All VA treatment records and examination reports have been associated with either the Veteran's claims file or electronic claims file.  All added records were reviewed by the AMC, which issued a supplemental statement of the case in January 2013.  The Veteran has been provided an adequate opportunity to present pertinent evidence and testimony.  There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order.
 
In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).
 
Relevant Laws and Regulations
 
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
 
In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The United States Court of Appeals for Veterans Claims also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-27.  
 
If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107.
 
Evaluations of defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  38 C.F.R. § 3.385 (2012).  To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100.  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).
 
An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  In that situation, 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.  Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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, and that numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).  
 
When evaluating a mental disorder, the VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission.  VA 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.  38 C.F.R. § 4.126(a).  When evaluating the level of disability from a mental disorder, VA 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).
 
Under 38 C.F.R. § 4.130, Diagnostic Code 9411, psychiatric impairment is rated under the General Rating Formula for Mental Disorders.  
 
A 50 percent rating 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 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; and 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 relations, 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 situations (including work or a work like setting); and inability to establish and maintain effective relationships.  Id. 
 
A 100 percent rating is in order when 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; 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, occupation, or own name.  Id. 
 
A Global Assessment of Functioning rating 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) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)).  A Veteran's assigned global assessment of functioning score and interpretations of the score are important considerations in rating a psychiatric disability.  See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the global assessment of functioning score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the global assessment of functioning 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).  A global assessment of functioning score between 41 and 50 indicates that a veteran has 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).  A score of 51-60 is appropriate where there are 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).
 
VA's Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012).
 
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
 
The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
 
Analysis: Bilateral Hearing Loss
 
The Veteran contends that his hearing loss disability is of sufficient severity to warrant a compensable evaluation.  The Veteran was granted service connection for hearing loss with a noncompensable rating in September 2004.
 
The Veteran stated at his March 2012 Board hearing that he was exposed to "weapons fire, aircraft noise, explosions, artillery fire," all of which led to his current hearing loss disability.  The representative read a statement from the Veteran in which he described needing to almost read lips in order to understand what people are saying and that the hearing aids he has tried sounded "artificial" and were "sometimes disorienting," such as from the amplified traffic noise he heard while he was driving.  The representative also read a statement from the Veteran's stepsister, who wrote that people had to "usually say things to him at least a couple of times" while looking directly at his face for him to understand that and that he had to "blast" the television volume.  The statement indicated that the Veteran has been frustrated with his hearing and that the hearing aids he has tried were not very helpful because "loud noises scare him" and made him feel like he was "in a tunnel."  The Veteran's stepsister also submitted a statement in June 2004 in which she described his hearing as "bad" and having "progressively gotten worse over the years."
 
In March 2004, the Veteran was evaluated by his VA audiologist.  The Veteran reported having communication difficulties in most situations.  At 1000 to 4000 Hertz, the examiner found puretone thresholds from 25 to 50 decibels in the right ear and puretone thresholds from 35 to 55 decibels in the left ear.  The Veteran was diagnosed with mild to moderate sensorineural hearing loss in the bilateral ears.  Speech recognition testing was performed, but unfortunately, the speech recognition test component of this evaluation used the NU-6 word list instead of the Maryland CNC word list.  Thus, the results are not adequate for rating purposes under 38 C.F.R. § 4.85.
 
VA treatment records show that he was fitted for a hearing aid in April 2004, and the appellant continues regularly to have evaluations of his use of hearing aids to assist his hearing disability.  In October 2010 and January 2011, he reported that he was having more difficulty with his hearing and continued to be treated through the use of hearing aids.
 
The Veteran was first afforded a VA audiological examination in July 2004.  He reported having difficulty understanding speech and communicating with his spouse in different listening environments.  The examiner diagnosed the Veteran with mild to moderate sensorineural hearing loss in the right ear and mild to moderately-severe sensorineural hearing loss in the left ear.  Word recognition ability was noted to be excellent.  Puretone threshold testing was performed, with the following results, in decibels:
 

HERTZ


1000
2000
3000
4000
AVERAGE
RIGHT
35
45
50
55
46
LEFT
35
50
50
55
48

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 96 percent in the left ear.  Applying the findings from the July 2004 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level I hearing loss in the left ear.  Where hearing loss is at Level II in one ear and Level I in the other ear, a noncompensable rating is assigned under Table VII.  Id.
 
The Veteran was again afforded a VA examination in April 2006.  The Veteran reported his history of acoustic trauma in service and hearing loss symptoms since 1969.  He stated that he sometimes could not hear or understand "what is going on," that he could not communicate as well socially as he would like, and that this difficulty developed after he stopped working.  He reported using hearing aids bilaterally.  The Veteran also reported that he had intermittent tinnitus which made it difficult for him to hear what was said to him or listen to the television and radio at normal volume levels.  Examination of the auricle and external ear were within normal limits, and the Veteran was diagnosed with mild to moderate sensorineural hearing loss.  Puretone threshold testing was performed, with the following results, in decibels:


HERTZ


1000
2000
3000
4000
AVERAGE
RIGHT
30
50
55
60
49
LEFT
35
55
50
55
49

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 100 percent in the left ear.  Applying the findings from the April 2006 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in each ear.  Where hearing loss is at Level I in both ears, a noncompensable rating is assigned under Table VII.  Id.
 
In October 2012, the Veteran was again afforded a VA audiological examination.  The examiner reviewed the claims file and discussed history with the Veteran.  The Veteran reported having difficulty understanding people clearly and having to rely on facial expressions and lip reading to understand the content of what people are saying to him.  The Veteran reported wearing hearing aids, but that they were "not comfortable" to wear as they amplified extraneous noise, such as traffic, and did not sound natural to him.  The Veteran did not report any occupational deficits resulting from his hearing loss noting that he was retired.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss.  Puretone thresholds on this examination, in decibels, were as follows:


HERTZ


1000
2000
3000
4000
AVERAGE
RIGHT
40
50
60
60
53
LEFT
45
55
70
55
56

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 86 percent in the left ear.  Applying the findings from the October 2012 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IV hearing loss in the right ear and Level II hearing loss in the left ear.  Where hearing loss is at Level IV in one ear and Level II in the other ear, a noncompensable rating is assigned under Table VII.  Id.
 
The April 2006 and October 2012 examinations were conducted in accordance with 38 C.F.R. § 4.85(a).  Both VA examiners discussed with the Veteran his symptoms and the functional effects of hearing loss on his daily life activities and occupational functioning.  See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  Accordingly, the examinations comply with the provisions of 38 C.F.R. § 4.85(a) and are afforded great probative value in determining the Veteran's current level of hearing impairment.
 
Considering the objective evidence of record described above, VA examination findings from all of the Veteran's VA examinations-July 2004, April 2006, and October 2012-correspond to a noncompensable evaluation under Table VII.  38 C.F.R. § 4.85.  At no time since the January 2004 initial claim has the Veteran's hearing loss disability warranted a compensable evaluation.  Thus, further staged ratings are not for application.  See Fenderson, 12 Vet. App. 119.
 
The Board acknowledges the Veteran's complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination.  The Board also acknowledges the Veteran's belief that his current hearing impairment is deserving of a higher disability rating.  However, because the audiometric examinations during the rating period show that the Veteran's bilateral hearing loss does not warrant a compensable evaluation, the currently assigned noncompensable evaluation is proper.  VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991).  

The most probative medical evidence as to the nature of the appellant's hearing loss are the audiometric findings, and those reveal that his hearing loss does not warrant a compensable rating.  There is no medical evidence of record which indicates or even suggests that the Veteran's measurable hearing loss is worse than has been demonstrated in his previous VA examinations.
 
The Board recognizes that hearing loss causes the Veteran inconvenience in his daily life, but there is no credible and competent evidence of record that indicates that the Veteran's hearing disability is worse than has been recorded at his VA examinations or that his hearing loss has functionally affected the appellant in any more severe way than has been discussed in the record and addressed by medical professionals.  There is no evidence of record, nor has the Veteran ever averred, that his hearing loss contributed in any way to his current unemployment.  The Veteran has not reported any occupational limitations caused by his hearing loss and stated that his problems understanding people began only after he stopped his previous employment.  The Veteran has not shown that he is functionally unable to communicate with others and he has been effectively treated through the use of bilateral hearing aids.
 
The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his hearing loss and that his functional impairment is adequately reflected by those medical findings.  Accordingly, the preponderance of the evidence is against the claim of entitlement to a compensable rating for bilateral hearing loss at any time.
 
As a final matter, the Board considered whether the Veteran's bilateral hearing loss presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher, 4 Vet. App. at 60.
 
Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  38 C.F.R. § 4.85.  The Veteran's tinnitus has been granted service connection separately, and he receives a separate rating for this disorder.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun, 22 Vet. App. at 115 (2008).  Thus, referral for extra-schedular consideration is not warranted.
 
In sum, there is no basis for assignment of a compensable rating for the Veteran's service-connected bilateral hearing loss.  In reaching the conclusion above, 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, that doctrine is not applicable in the instant appeal.  38 U.S.C.A. § 5107(b).
 
Analysis: PTSD
 
In September 2004, the Veteran was granted entitlement to service connection for PTSD, and assigned a 50 percent rating.  The Veteran asserts that his PTSD warrants a higher rating. 
 
The Veteran has submitted numerous lay statements describing his experiences serving in Vietnam and the difficulties he has had with PTSD since.  In a June 2004 statement, he described having guilt and stress over his wartime experiences, and that he frequently had bad dreams.
 
The Veteran stated in his January 2004 claim that he experiences nightmares, poor sleep, does not socialize, and startles easily.  In June 2005, the Veteran again stated that he sleeps poorly due to nightmares and does not socialize.  In July 2008, the Veteran submitted a letter stating that his depression had become worse.
 
In February 2004, the Veteran submitted a progress note from a clinical psychologist at a Veteran's Center which noted that he had difficulty sleeping, night sweats, an exaggerated startle response, and isolation.  The diagnosis was mild-moderate chronic PTSD.
 
The Veteran's stepsister has provided several lay statements describing his symptoms and difficulties functioning.  In a June 2004 statement, she stated that the Veteran startled easily, slept poorly, had nightmares and flashbacks, did not socialize, and became upset easily.  She suggested that his illness was part of the reason his marriage fell apart.  In a February 2005 statement, she described how the Veteran struggled with depression and nightmares and how his physical and mental problems put a strain on his marriage.
 
The Veteran testified at a March 2012 Board hearing.  His representative read statements written by the appellant describing his service in Vietnam and stating how it had been very hard for him to function due to persistently remembering the past and having difficulty sleeping, controlling his anger, communicating with others, and maintaining relationships.  He described how he has had difficulty finding a psychiatrist that he can talk to in recent years.  The Veteran stated that a year and a half ago he told his psychiatrist that he was considering suicide.  The representative also read a statement from the Veteran's stepsister which stated that the appellant talked and screamed in his sleep due to dreams, that he frequently yelled and became easily frustrated, that he had frightened off his friends due to anger issues, and had talked of suicide.
 
In August 2004, the Veteran was afforded a VA psychiatric examination.  The Veteran reported psychiatric problems since service separation which had become increasingly problematic since 2000.  He stated that he was divorced and lived with his daughter and stepsister.  He reported having poor sleep, "jitteriness," increased startle response, suspiciousness, bad dreams, and feelings of guilt and shame over his time in Vietnam.  He reported being unable to work because of his medical problems, including PTSD.  The examiner found that the Veteran was well-groomed, alert, well oriented, and had intact judgment.  There was no evidence of delirium, hallucination, or psychotic thinking, though he did seem "somewhat anxious and depressed."  The examiner diagnosed PTSD, and assigned a global assessment of functioning score of 45-50.
 
In April 2006, the Veteran was afforded another VA examination.  The Veteran reported feeling depressed and sometimes paranoid, nightmares two to three times a week, difficulty concentrating, and having poor appetite.  The Veteran denied any delusions, morbid mood changes, or suicidal ideation and reported his relationships with family and friends as "fair."  The Veteran stated that he was able to take care of all of his basic needs, but that he had no outside activities or hobbies.  On examination the Veteran was found to be neatly groomed, friendly, cooperative, alert, and oriented.  His speech was normal, he showed good memory, and he had coherent and organized thoughts with no tangential associations.  There were no signs of delusional, psychotic, suicidal, or paranoid thoughts.  The Veteran was moderately anxious.  The diagnoses were moderate chronic PTSD and major depressive disorder.  A global assessment of functioning score of 50 was assigned.

In September 2012, the Veteran underwent an additional VA examination.  He reported playing with his band less frequently due to the economy, though he still enjoys playing music and wished he could play more often.  He related that he got a dog one year ago and enjoyed taking care of it.  He stated that he spent most of his time cleaning, shopping, and taking care of his house.  He stated that he also cared for his stepsister who lives with him because she is in poor health.  The Veteran's symptoms included recurrent and distressing recollections of his stressor events, efforts to avoid thoughts associated with trauma, feelings of detachment or estrangement, a restricted range of affect, a flat affect, difficulty falling or staying asleep, hypervigilance, a depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less, and difficulty relating to other people.  Mental status examination revealed the Veteran to have normal orientation, speech, and eye contact.  His appearance and hygiene were appropriate.  His mood was dysthymic.  No delusions, hallucinations, obsessional rituals, or suicidal ideations were observed, and thought and judgment appeared normal.  The examiner diagnosed chronic PTSD, and assigned a global assessment of functioning score of 65.  The examiner opined that PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The examiner stated that the Veteran had "made a satisfactory adjustment" since his last VA examination, with "no gross indications of behavior control problems, subjective unhappiness, or family dysfunction."  The examiner opined that the Veteran was mildly socially impaired by PTSD.  The examiner also opined that the Veteran's PTSD did not seem to have ever caused industrial impairment.  PTSD was judged not to be the cause of his unemployment, since the appellant would be working more if the economy were better.
 
The Veteran has also been receiving psychiatric treatment at the VA Sepulveda Outpatient Clinic.  
 
In February 2004 the Veteran had a biopsychosocial assessment in which he reported experiencing anxiety, depression, nervousness, hypervigilance, a startle response, sadness, appetite changes, sleeplessness, nightmares, and intrusive thoughts.  The Veteran reported living with his stepsister, daughter, and grandson and had a positive relationship with them and that he had a positive social network.  The Veteran presented with moderate tangentiality in his thought processes, euthymic affect in full range.  There was no evidence of hallucinations or psychotic distortions, no language impairment, and perception and judgment were appropriate.  The Veteran was diagnosed with depression and PTSD and assigned a global assessment of functioning score of 51-60.
 
In May 2004, the Veteran began receiving treatment for psychiatric disorders.  He reported anxiety, depression, nervousness, hypervigilance, nightmares, intrusive thoughts, an increased startle response, sadness, appetite changes, and sleeping in only one hour increments.  The Veteran also reported that he had positive family/social support.  The Veteran presented with normal, though somewhat loud voice, and good eye contact.  His mood was  dysphoric.  He showed intact cognition, fair judgment and insight.  His thought processes were tangential at times.  The Veteran was diagnosed with depression (secondary to general medical conditions) and PTSD and assigned a global assessment of functioning score of 51-60.  
 
The Veteran was twice treated in June 2004 and again reported experiencing anxiety, depression, nervousness, hypervigilance, startle response, sadness, appetite changes, sleeplessness, nightmares, and intrusive thoughts.  He reported "working on a project which involves recreating the work that he did in Vietnam," which led to almost constantly reexperiencing the war."  The Veteran again presented with moderately tangential thought processes.  His affect was full range and euthymic.  There was no evidence of hallucinations or psychotic distortions, no language impairment, and appropriate perception and judgment.  The Veteran was diagnosed with depression and PTSD and assigned a global assessment of functioning score of 51-60.  In a July 2004 progress note, the Veteran endorsed experiencing the same symptoms but noted that he had been calmer and less argumentative with his daughter lately.
 
In August 2004, the Veteran reported difficulty sleeping, continued guilt, problems with his daughter, and negative thoughts.  He stated that he had a support network which he used when feeling down.  The examiner noted that he appeared "much calmer with less agitation/anxiety."  The Veteran presented fairly groomed, less anxious, but mildly dysphoric.  He showed fair insight and judgment.  His thought processes were "tangential and circumstantial at times, but redirectable."  The Veteran was again diagnosed with depression and PTSD and assigned a global assessment of functioning score of 51-60.  In October 2004, the Veteran presented in a similar manner and he stated that he was continuing to feel depressed and have difficulty sleeping.
 
In November 2004, the Veteran told his therapist, a psychiatry intern, that he had become a "loner" and drove other people away because of his irritability.  He stated that the only people currently in his life were his sister and daughter.  He reported that his short term memory had become poor and he was becoming forgetful and neglectful of his personal appearance.  He reported having nightmares about Vietnam, survivor guilt, and depression.  The examiner noted that the Veteran's thought process was circumstantial at times, and that he had difficulty organizing his thoughts.  The appellant was shaven but with long, ungroomed hair.  His judgment was poor due to irritability.  The examiner found the Veteran to have deficiencies in work, family relations, judgment, thinking, and mood.  He had near continuous depression and anxiety affecting his ability to function effectively or maintain personal relationships.  Throughout 2005 and 2006, the Veteran attended regular individual psychotherapy sessions for PTSD and major depressive disorder.  In December 2004, January 2005, March 2005, and May 2005, the psychiatry intern again noted similar symptoms and level of functioning as in the November 2004 examination, and the Veteran also reported that he was having difficulties with ongoing depression and low energy.  In March 2005, the Veteran reported feeling a lack of motivation and tiredness, and in May 2005 he reported feeling anxious, depressed, hopeless at times, and having nightmares.  In June 2005, the Veteran reported feeling less irritable and destructive and that he has been assisting the pool therapy instructor, gardening, enjoying music, and cleaning the garage.  The Veteran's mood and affect appeared "better" in August 2005, but with restricted range and still with some circumstantial thought processes.  

Starting in 2006, the psychiatrist began noting that the Veteran presented with "good grooming."  Outpatient records from early 2006 are notable for passive suicidality, but the Veteran repeatedly denied adamantly that he would ever harm himself.  By August 2006 the Veteran specifically denied suicidal ideation.

In June 2006, the appellant stated that he wanted to begin writing and recording music as a way of expressing his feelings and anger.  In September 2005, the Veteran's psychiatrist submitted a letter to VA which stated that the Veteran suffered from chronic sleep deprivation, that he avoided social contact, and that he had short term memory problems with feelings of guilt and hopelessness.  She stated that the Veteran's PTSD was severe, and that it had "severely impacted both his ability to hold gainful employment as well as maintain satisfactory interpersonal relationships."
 
After his primary treating psychiatrist was transferred, the Veteran was evaluated by a new psychiatrist on August 26, 2006.  He reported feeling anxious and stated that he once shot a gun near his head in 1990, perhaps as a failed suicide attempt.  The examiner noted that the Veteran had good grooming and hygiene, regular speech, intact cognition, and good impulse control.  He had an "angry" mood, and a constricted affect.  There was no evidence of current suicidal ideation, paranoia, or delusions.  The psychiatrist diagnosed major depressive disorder and PTSD and assigned a global assessment of functioning score of 55.
 
The Veteran continued receiving psychiatric counseling intermittently in 2007 and 2008.  In March 2007, the Veteran reported sleeping around six hours a night and was playing music professionally once a week.  He continued to report having dreams about Vietnam as well as an exaggerated startle response.  The psychiatrist noted that the Veteran was well-groomed with good hygiene, was calm and cooperative, with normal speech, broad affect, good mood, and good insight and judgment.  There were no signs of delusions or suicidal ideation.  In May 2007, the Veteran reported that he was still having difficulty sleeping and feeling depressed.  The examiner noted that he was calm, well-groomed, and had appropriate hygiene.  He had a linear and goal-oriented thought process, good insight and judgment, and a broad, full affect with no delusions or hallucinations.  In October 2007, he reported playing music more frequently both for fun and professionally, and he was assigned a global assessment of functioning score of 65.  

In August 2008, the Veteran was evaluated by a neuropsychologist, who found that the appellant was still having troubling dreams.  Notably, the Veteran had normal language and memory functioning, linear thought processes, no cognitive slipping, no tangentiality, no suicidal ideation, and no distortions of reality.  In a September 2008 examination, a psychiatrist noted similar findings but also reported that the Veteran was having difficulties communicating with his girlfriend.  He diagnosed a major depressive disorder and PTSD and assigned a global assessment of functioning score of 65.
 
Based on this evidence, the Board finds that, resolving reasonable doubt in the Veteran's favor, from November 23, 2004 to August 26, 2006, the appellant's impairment due to PTSD was most consistent with a 70 percent disability rating.  For all other periods during the appellate term the Board finds that the evidence shows that no more than a 50 percent rating is in order.

The Board assigns a 70 percent rating under the doctrine of reasonable doubt from November 23, 2004 to August 25, 2006.  In this respect, during this term the Veteran reported passive suicidality, and on November 23, 2004 his treating psychiatry intern found intermittently illogical and irrelevant speech, near continuous depression and anxiety, and a possible neglect of personal appearance.  While the appellant has denied an intent to commit suicide, his symptoms, under the reasonable doubt doctrine, are arguably supportive of a 70 percent rating.  38 C.F.R. § 4.130.

At no time during the term from November 23, 2004 to August 25, 2006, however, did the Veteran show evidence of such symptoms as a gross impairment in thought processes or communication.  He did not suffer from persistent delusions or hallucinations, his behavior was never shown to be grossly inappropriate, and he was never in persistent danger of hurting self or others.  He was able to perform activities of daily living, including maintenance of minimal personal hygiene, and he was not disoriented to time or place.  Hence, an evaluation in excess of 70 percent is not in order from November 23, 2004 to August 25, 2006.

For all other periods during the appellate term, the Board finds that entitlement to an evaluation in excess of 50 percent is not in order.  In this respect, while the Veteran reported being unable to work in his August 2004 VA examination, this was due to the combined impact of his psychiatric disorder and multiple medical problems to include coronary artery disease, obstructive sleep apnea, and asthma.  The severity of the appellant's heart disease and its impact on the appellant's occupational functioning is evident given the fact that since May 2003, his service connected ischemic heart disease, status post myocardial infarction, has been evaluated as 100 percent disabling.

Further, at no other time was evidence presented showing symptoms such as obsessional rituals which interfered with routine activities, and his speech was not intermittently illogical, obscure, or irrelevant.  While the Veteran clearly suffered from depression, there is no evidence his depression was so severely disabling that it affected his ability to function independently, appropriately, and effectively.  Indeed, the Veteran was noted to care for an ill sister, and to play in a band, with an expressed desire to play more frequently.  There is no evidence of such symptoms as impaired impulse control, and there is no evidence of such symptoms as unprovoked irritability with periods of violence.  While the appellant from time to time presented with grooming issues, there was no evidence of spatial disorientation, and his membership in a band belies any suggestion that he is unable to establish and maintain effective relationships.  Additionally, the global assessment of functioning scores preponderated in the 51-65 range, that is, between mild and moderate.  DSM-IV.  Finally, the September 2012 examiner opined that it did not appear that posttraumatic stress disorder had ever caused any industrial impairment.  This is highly significant given that a rating is assigned based on impaired earning capacity.  38 C.F.R. § 4.1 (2012).  Hence, for all periods other than the term from November 23, 2004 to August 25, 2006, entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder is denied.

In assessing the severity of his PTSD, the Board has considered the Veteran's assertions and those of his stepsister regarding his symptoms, which they are competent to provide.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  But the criteria needed to support a higher rating require medical findings that are within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994).  As such, the Veteran's assertions, and those of his stepsister, are not more persuasive than the objective medical findings.  Those, as indicated above, preponderate against entitlement to higher ratings than assigned.  Furthermore, the Veteran's own assertions, and those of his stepsister, regarding his symptoms do not contradict the findings of his VA examiners or treating medical professionals, and are not, as they have described them, sufficient to more nearly approximate the criteria for higher ratings.
 
Therefore, the Board finds that a 70 percent, but no higher, rating for PTSD is warranted from November 23, 2004 to August 25, 2006; and that for all other periods, entitlement to an evaluation in excess of 50 percent is denied.  

In reaching this decision the Board considered whether the Veteran's PTSD presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1); Bagwell, 9 Vet. App. at 338-39.  There are, however, no exceptional or unusual factors with regard to the Veteran's PTSD.  The rating criteria reasonably describe the Veteran's disability levels and symptomatology, and in fact provide for consideration of far greater disability and symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and referral for extra-schedular consideration is not warranted.  See Thun, 22 Vet. App. at 115. 

ORDER
 
Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. 
 
Entitlement to an initial 70 percent evaluation for PTSD is granted for the period from November 23, 2004 to August 25, 2006, subject to the laws and regulations governing the award of monetary benefits.

For all other periods covered by the appellate term, entitlement to an increased evaluation for posttraumatic stress disorder is denied.  



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs