Citation Nr: 1414496 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 11-08 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to an initial disability rating in excess of 30 percent for generalized anxiety disorder (GAD) prior to August 20, 2012. 3. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) (previously characterized as GAD) from August 20, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and L.T. ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active military service from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and October 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board has reviewed the physical and Virtual VA electronic claims files. FINDINGS OF FACT 1. The Veteran does not currently have left ear hearing loss for VA purposes. 2. Prior to August 20, 2012, the Veteran's GAD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. As of August 20, 2012, the Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for left hear hearing loss have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2013). 2. The criteria for a disability rating in excess of 30 percent for GAD prior to August 20, 2012, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, Diagnostic Code 9411 (2013). 3. The criteria for a disability rating in excess of 50 percent for PTSD from August 20, 2012, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.125(b), 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). VA provided notice regarding the Veteran's left ear hearing loss claim in January 2010. The Veteran was informed of the evidence necessary to substantiate his claim, that VA was responsible for obtaining certain evidence, that he would be responsible for obtaining certain evidence, and that an examination would be scheduled if appropriate. He was also informed that if a claim were granted a disability rating and an effective date would be assigned. Regarding the claims for an increased initial disability rating, as service connection was granted and a disability rating and effective date were assigned, the claim has already been substantiated and any discussion of the duty to notify is unnecessary. Dingess, 19 Vet. App. at 490-491. VA also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. The RO associated the Veteran's service treatment records (STRs), service personnel records (SPRs), private treatment records, and VA treatment records with the claims file. The Veteran has not identified any evidence not already of record; therefore, the Board concludes VA has made every reasonable effort to obtain all relevant records. Second, VA satisfied its duty obtain a medical examination or opinion when required. VA provided the Veteran several medical examinations addressing his left ear hearing loss claim and the current severity of his GAD and PTSD. The examinations are adequate, as the examiners considered the relevant history of the Veteran's symptoms, provided sufficiently detailed descriptions of any disability, and included clear conclusions with supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Finally, the Veteran was afforded a personal hearing before a Decision Review Officer (DRO) at the RO in December 2011. The hearing focused on the elements necessary to substantiate the claims, and the Veteran and his representative demonstrated actual knowledge of such elements via questioning and testimony. Further, neither the Veteran nor his representative has argued that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2013), or identified any prejudice as a result of the hearing. As such, to the extent that the DRO did not explain the bases of the prior determinations, or suggest the submission of evidence that may have been overlooked, the Veteran has not been prejudiced. VA has substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010). As VA satisfied its duties to notify and assist the Veteran, no further action is needed to comply with 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and he will not be prejudiced by the adjudication of his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim When deciding a case, the Board must consider all evidence on both sides of an issue, base its decision on the entire record, and state the reasons or bases for any findings and conclusions on material issues of fact and law. 38 U.S.C.A. §§ 1154(a), 5107(b), 7104(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303(a), 3.304(b)(2), 3.307(b) (2013); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In doing so, the Board must explain why any material evidence favorable to the claimant was rejected or given little weight. 38 U.S.C.A. § 7104(d)(1); Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). But see Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (finding that the Board need not discuss every piece of evidence in the record). If VA determines that a preponderance of the evidence supports a claim, or if the claim is in relative equipoise, the claimant shall prevail. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. A disability is service connected if it resulted from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 110, 1131; 38 C.F.R. § 3.303(a). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or causal relationship, between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA compensation may be awarded for a disability only if it existed on the date of application or at any time during the period on appeal. Degmetich v. Brown, 8 Vet. App. 208, 211-212 (1995), aff'd, 104 F.3d 1328, 1332 (Fed. Cir. 1997); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Hearing loss is a disability for VA purposes when one auditory threshold at frequencies of either 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when auditory thresholds for at least three of the aforementioned frequencies are 26 decibels or greater; or when Maryland CNC Test speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Disability evaluations are governed by VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). The percentage ratings in the Rating Schedule represent the "average impairment in earning capacity" resulting from service-connected disabilities, and residuals thereof, in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). When assigning a disability rating, the Board must consider the potential application of any applicable regulation governing VA benefits, whether or not raised by the veteran, as well as the entire history of the disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). During an evaluation, the symptomatology of a service-connected disability is compared with criteria in the Rating Schedule and a percentage rating is assigned. 38 C.F.R., Part 4. If there is a question as to which percentage rating should apply, the higher one will be assigned if the disability picture more nearly approximates the required criteria for that rating. 38 C.F.R. § 4.7. But see Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (holding that 38 C.F.R. § 4.7 does not apply where a diagnostic code consists of successive, cumulative criteria and the criteria for the higher rating are joined by "and" because "there is no question as to which evaluation shall be applied when a veteran does not satisfy all of the required criteria of the higher rating but does satisfy all of the criteria of the lower rating"). Evaluating the same disability or manifestation under different diagnoses and using manifestations not resulting from service-connected disease or injury must be avoided. 38 C.F.R. § 4.14. If, however, multiple diagnostic codes each require "distinct and separate" symptomatology that does not duplicate or overlap with symptomatology required in the other diagnostic codes, a veteran may be assessed multiple ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's GAD/PTSD is evaluated under the General Rating Formula for Mental Illnesses. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Under the general rating formula for mental disorders, the following ratings apply. 38 C.F.R. § 4.130, Diagnostic Codes 9201-9440 (2013). A 10 percent rating applies if the veteran has occupational and social impairment due to mild or transient symptoms that decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or, if the veteran has symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating applies if the veteran has 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, or recent events). A 50 percent rating applies if the veteran has 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 rating applies if the veteran has 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 circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating applies if the veteran has total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Under 38 C.F.R. § 4.126(a), an evaluation of a mental disorder must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The assigned rating should be 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). While the evaluation should consider the extent of social impairment, a rating should not be assigned based solely on social impairment. 38 C.F.R. § 4.126(b). Further, the list of symptoms within the criteria for each rating is not exhaustive, so the impact of other symptoms particular to a veteran or a disorder on occupational and social functioning should also be considered. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition to these criteria, the Board must consider any reported Global Assessment of Functioning ("GAF") scores, which reflect psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores are highly probative, as they relate directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. Massey v. Brown, 7 Vet. App. 204, 207 (1994). GAF scores do not, however, necessarily mandate a 100 percent evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). GAF scores of 61-70 indicate some mild symptoms or some difficulty in social, occupational, or school functioning, with the ability to generally function pretty well and have some meaningful personal relationships. American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (4th ed. 1994). GAF scores of 51-60 indicate moderate symptoms, such as a flat affect, circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, as evidenced by having few friends and having conflicts with peers or co-workers. Id. GAF scores of 41-50 indicate serious symptoms, such as suicidal ideation, severe obsessional rituals, and frequent shoplifting, or serious impairment in social, occupational, or school functioning, as evidenced by having no friends and being unable to keep a job. Id. A. Left ear hearing loss. The Veteran contends that he has left ear hearing loss that was caused traumatic noise exposure from firing weapons, grenade explosions, and the explosion of an enemy rocket-propelled grenade in 1968. See November 2010 Notice of Disagreement; March 2011 Statement. The record does not contain evidence that the Veteran currently has, or had at any point since filing his claim, left ear hearing loss for VA purposes. During an October 2010 VA examination, the Veteran had one puretone threshold above 26 decibels-30 decibels-at 3,000 Hertz. His Maryland CNC speech recognition score was described as excellent and given a range of 100-94 percent. During an August 2012 VA examination, the Veteran had two puretone thresholds above 26 decibels-35 decibels at 3,000 Hertz and 30 decibels at 4,000 Hertz. His Maryland CNC speech recognition score was 100 percent. While the Veteran believes he currently has left ear hearing loss for VA purposes, he is not competent to provide a diagnosis in this case, as the issue is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating the need for supporting medical evidence in claim for rheumatic heart disease). Without a current disability, the Veteran is not entitled to service connection on any basis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). B. GAD prior to August 20, 2012. Based on the above laws and regulations, the Veteran's GAD was not more than 30 percent disabling prior to August 20, 2012. While he did demonstrate disturbances in motivation or mood, some impaired abstract thinking, and some short-term memory impairment, he did not demonstrate a flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty understanding complex commands, impairment of long-term memory, or impaired judgment. Moreover, he maintained effective work and social relationships; did not have consistently reduced reliability and productivity; and generally functioned satisfactorily with routine behavior, self-care, and normal conversation during the relevant period. Regarding occupational impairment, the Veteran was employed full-time up until his retirement in approximately December 2010 and, while he reported daily fatigue and difficulty concentrating due to his sleep disturbances, he did not report daytime confusion or having any regular problems relating to his coworkers or supervisors. While he reported choosing to retire in approximately December 2010 due to a feeling that his supervisor had degraded him, he denied having any conflicts with his coworkers or supervisors. Regarding social impairment, the Veteran avoided crowds, but maintained good relationships with his wife, his son, and his grandson and attended meetings at the Masonic Lodge. While he frequently reported feeling irritable or angry for no reason, no VA mental health practitioner found he had impulse control impairment and he regularly denied any violence or homicidal ideation. During his December 2011 Decision Review Officer Hearing, the Veteran reported having 3-4 per week or daily panic attacks; however, while his reports of symptoms are credible and entitled to probative weight, he is not competent to diagnose panic attacks, as the issue is medically complex and requires specialized knowledge and experience. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.159(a)(2); Jandreau, 492 F.3d at 1377, 1377 n.4; Kahana, 24 Vet. App. at 433. The Board instead gives more probative weight to VA examiners' finding that he did not have panic attacks. The Veteran was assigned GAF scores indicating moderate to serious symptoms; however, the Board gives these scores limited probative weight, as the Veteran did not demonstrate many of the symptoms associated with those GAF scores. He did not have a flat affect; circumstantial speech; moderate difficulty in functioning evidenced by having conflicts with peers or co-workers; severe obsessional rituals; or serious impairment in social or occupational functioning as evidenced by having no friends and being unable to keep a job. Further, the April 2009 VA examiner found there was only mild impairment in occupational and social functioning. Consideration was given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505, 511-512 (2007). The Veteran did report some suicidal ideation; however, it was passive, without intent or a plan, and it decreased with medication. Further, while he reported a more depressed mood during bad weather, his mood improved with medication and outdoor activities. Moreover, he was able to continue working full-time and consistently reported having good relationships with his family. The Board acknowledges the Veteran's argument that his GAD symptoms should have been diagnosed as PTSD during the relevant period, but notes that he is not competent to provide a diagnosis in this case, as the issue is medically complex and requires specialized knowledge and experience. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.159(a)(2); Jandreau, 492 F.3d at 1377, 1377 n.4; Kahana, 24 Vet. App. at 433. A VA examiner diagnosed the Veteran with PTSD on August 20, 2012, and determined it was an evolution of the Veteran's GAD diagnosis and not a separate diagnosis. See 38 C.F.R. § 4.125(b). Further, as the Rating Formula is intended to capture all of a veteran's psychiatric symptomatology and there is a prohibition on pyramiding, a single rating would be assigned even if multiple disorders were present. 38 C.F.R. §§ 4.14, 4.130, Diagnostic Code 9411. C. PTSD as of August 20, 2012. Based on the above laws and regulations, the Veteran's PTSD is not more than 50 percent disabling as of August 20, 2012. While he did demonstrate some difficulty in adapting to stressful circumstances, he did not demonstrate suicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; impaired impulse control; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. Moreover, he did not have occupational and social impairment with deficiencies in most areas, as he did not have deficiencies in the areas of work or family relations, judgment, or thinking. Regarding occupational impairment, while the Veteran reported difficulty with short-term memory and difficulty concentrating, he also regularly reported that he was sleeping better and denied any symptoms related to occupational impairment. Further, he had already retired in December 2010 and, moreover, the August 2012 VA examiner found no indication that the Veteran was unemployable. Regarding social impairment, the Veteran did report some deficiencies in mood that make it difficult for him to leave the house and socialize-he disliked crowds, at times felt bored and lost interest in his hobbies, and no longer attended meetings at the Masonic Lodge. The August 2012 VA examiner found, however, that the Veteran's symptoms of depressed mood, anhedonia, and amotivation were not attributable to his PTSD and were instead attributable to his depressive disorder, not otherwise specified (NOS), for which the Veteran is not currently service connected. In addition, in October 2012 and February 2013 VA treatment records the Veteran's mood and affect were bright and he reported either reduced depression or no depression at all. Further, during the same period he reported keeping in touch with fellow servicemembers via telephone conversations and his family relationships were intact throughout the relevant period. Regarding family relations, the Veteran regularly reported that they were good and that his grandson visited weekly. While the Veteran and his wife reported that he was frequently irritable or easily angered, the record does not contain evidence of impaired impulse control and the Veteran regularly denied any periods of violence. Further, the Veteran reported maintaining good relationships with his wife, son, and grandson. Regarding judgment and thinking, the August 2012 VA examiner found judgment and thinking both good and October 2012 and February 2013 VA mental health treatment notes indicate that the Veteran's judgment and insight were both found fair. October 2012 VA treatment notes also reveal, however, that his thought process was fairly logical, sequential, and goal-directed; and his thought content involved a reduction in depressed mood, returned energy level with increasing activities, and improvement in quality and quantity of sleep. In addition, the February 2013 VA mental health treatment notes indicate that the Veteran's thought process was fairly logical, sequential, and goal-directed; and his thought content involved denying a depressed mood, having a good energy level, increasing activities in the home, and continued improvement in quality and quantity of sleep. Consideration was given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson, 12 Vet. App. at 126-127; Hart, 21 Vet. App. at 511-512. VA treatment notes indicate that the Veteran reported that his symptoms were stable or about the same and that VA mental health practitioners found that many of his symptoms actually improved during the relevant period. The Veteran's claims do not need to be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The Board must refer a claim if (1) a service-connected disability presents such an exceptional disability picture that the available schedular ratings do not reasonably describe or contemplate the disability's severity and symptomatology, and (2) the disability picture exhibits other factors, such as marked interference with employment and frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). The Veteran's disability picture is not exceptional or unusual; the schedular criteria contemplate the manifestations of his GAD and PTSD; and there is no indication that the average disability would be in excess of that contemplated by the assigned disability rating. The record does not reveal frequent emergency room visits or hospitalizations for GAD or PTSD. While he reported missing 1-2 weeks of work in March 2009 due to headaches and anxiety, not feeling well or feeling "wore down," his low energy level was attributed to his blood pressure medication. In addition, while he retired from his job in approximately December 2010 due to feeling that his boss had degraded him following a motor vehicle accident, he denied any workplace conflicts and reported that he got along well with his coworkers and supervisors. A claim for a total disability rating based on individual unemployability (TDIU) is raised if a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the issue is not raised because the Veteran was employed full-time until he chose to retire in approximately December 2010. Further, the August 2012 VA examiner found no reason that he Veteran would be unemployable. See August 2012 VA Examination. Accordingly, the preponderance of the evidence is against the claims for increased disability ratings for GAD and PTSD. (Continued on the next page) ORDER Service connection for left ear hearing loss is denied. Entitlement to an initial disability rating in excess of 30 percent for GAD prior to August 20, 2012, is denied. Entitlement to an initial disability rating in excess of 50 percent for PTSD from August 20, 2012, is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs