Citation Nr: 1624450 Decision Date: 06/17/16 Archive Date: 06/29/16 DOCKET NO. 10-18 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1966 to August 1968, to include combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In a March 2009 rating decision, the RO granted service connection for PTSD and assigned a 50 percent disability rating effective December 31, 2008. In a June 2009 rating decision, the RO denied service connection for the Veteran's bilateral hearing loss disability. The Veteran disagreed with the assigned rating for PTSD and the service connection denial for hearing loss and perfect appeals on both issues. In January 2015, the Veteran was afforded a Board hearing, via videoconference, before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is of record. FINDINGS OF FACT 1. A bilateral hearing loss disability is related to active duty service. 2. During the appeal period, PTSD is productive of occupational and social impairment that more nearly approximated a disability picture manifest by reduced reliability and productivity; neither occupational and social impairment with deficiencies in most area nor total occupational and social impairment is shown. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304(d), 3.385 (2015). 2. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). As for the Veteran's hearing loss disability claim, the action taken herein below is favorable to the Veteran; as such further discussion of the VCAA as it pertains the Veteran's service connection claim for bilateral hearing loss disability is not necessary. As noted above, the Veteran's claim for a higher rating for his PTSD arises from his disagreement with the rating assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2014). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to the rating issues on this appeal is unnecessary. 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 available VA treatment records. The Veteran was also afforded VA psychiatric examinations in connection to his claim. In March 2015, this matter was initially remanded to afford the Veteran an updated VA examination, which was provided in June 2015. See Stegall v. West, 11 Vet. App. 268 (1998). The report of this examination, along with the remainder of the evidence of record, contains sufficient finding to rate the Veteran's PTSD under the applicable rating criteria. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The issues on appeal are ready to be considered on the merits. Hearing Loss Disability 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 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As an initial matter, the Board notes that the Veteran engaged in combat with the enemy and contends that his bilateral hearing loss disability is a result of such combat. Therefore, the combat provisions of 38 U.S.C.A. § 1154 are applicable. The Veteran has a current bilateral sensorineural hearing loss disability pursuant to the VA regulations outlined in 38 C.F.R. § 3.385. See VA Treatment Record dated January 15, 2009; May 2009 VA Examination. He contends in his written statements and hearing testimony that, while serving as an infantryman in Vietnam and participating in combat missions, he suffered acoustic trauma - namely mortar fire and gunfire. At one point, the Veteran indicated that while he was a gunner, he often fired his weapon while it was perched on left shoulder, directly below his left ear and estimated that he fired over 800 mortar shells. See VA Treatment Record dated April 30, 2010; Board Hearing Transcript. His service personnel records confirm the Veteran's statements as to his military specialty occupation and combat status. The finding that the Veteran engaged in combat is significant because a combat veteran is permitted 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)). Therefore, the Board accepts the Veteran's testimony that he suffered acoustic trauma in service. The Board also accepts that he noticed a decrease in hearing acuity during such service. 38 U.S.C.A. § 1154(b). Service treatment records as pertaining to the Veteran's period of active duty service show that the Veteran did not have a hearing loss disability pursuant to VA regulations either during or at separation from service. However, the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board acknowledges that the May 2009 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not a result of military noise exposure. The Board notes, however, the negative nexus opinion that was provided appears to be based solely on the absence of documented hearing loss disability in the Veteran's service treatment records. The Board finds that this examination is inadequate. The absence of documented hearing loss is service is not fatal to a service connection claim for bilateral hearing loss. See Ledford, supra, at 89. Also of record are the Veteran's lay statements. The Veteran avers that he noticed issues with his hearing upon discharge from service, but was unaware of how the seek help. He also indicated that he saw private physicians as early as 1969, less than a year after discharge from service. He attempted to get these records, but they are destroyed. See Board Hearing Transcript; VA Examination dated May 2009. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The Board finds the Veteran to be an accurate historian, as his statements over the appeal period have remained consistent. Given the lack of probative value in the May 2009 negative nexus opinion and the Veteran's competent and credible testimony that he incurred his hearing loss disability during his combat missions, which is consistent with the circumstances and hardships of his service, the evidence weighs in favor of the Veteran as to whether his hearing loss disability is related to service. In these circumstances, the lay testimony of this combat veteran indicating a relationship between his current hearing loss disability and the acoustic trauma sustained in combat is of greater probative value than the inadequate medical opinion. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. As such, entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C.A. §§ 1154(b), 5107(b); 38 C.F.R. § 3.303(a). PTSD Evaluation Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As discussed below, the disability has not significantly changed and a uniform evaluation is warranted. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a rating of 50 percent 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; and difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent 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 assigned when the condition 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. 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). On this record, the Veteran has demonstrated GAF scores ranging from 45 to 65 for the appeal period in question. A GAF score of 41 to 50 is indicative of 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 GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 reflect some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational or school functioning but generally functioning pretty well and has some meaningful interpersonal relationships. See DSM-IV. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Federal Circuit has stated that evaluation under § 4.130 is "symptom-driven" and that "a veteran may only qualify for a given disability rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that § 4.130 "requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As such, the Board will consider both the specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. The Veteran contends that his service-connected PTSD is more severe than the assigned 50 percent disability rating contemplates. Thus, the primary issue on this appeal is whether the overall impairment caused by the Veteran's PTSD more nearly approximates the criteria for a higher evaluation. For the reasons that follow, the Board finds that the overall impairment caused by the Veteran's PTSD most approximates the 50 percent rating criteria and thus and increased rating is not warranted. The Veteran began receiving treatment for PTSD in 2008. At that time, the Veteran endorsed symptoms of frequent nightmares, daily depression, insomnia, fatigue, hopelessness, poor concentration and memory, reclusion, anxiety, muscle tension and sleep disturbance. The treating physician assigned a GAF score of 55. See VA Treatment Records dated December 8, 2008, December 10, 2008 and December 18, 2008. Over the course of the next year, the Veteran's symptoms remained consistent. He reported nightmares and flashbacks as often as three to seven days per week, along with intrusive thoughts, and startled response. He also indicated that he saw shadows in his peripheral vision and heard voices. During this time, he continued to avoid crowds but maintained a good relationship with his wife, children and grandchildren. The Veteran's GAF score was noted as 49. According to the Veteran, his PTSD symptoms increased with stress or other stressors, such as certain smells and loud noises. See VA Treatment Records dated January 8, 2009, February 27, 2009, July 17, 2009, July 24, 2009, August 28, 2009, October 28, 2009, and December 14, 2009. Also during this time, the Veteran was laid off from job for his inability to work will with customers or others. His former boss described him as "temperamental" and "unpredictable." See Letter from K.K. dated November 11, 2009. The Veteran was afforded a VA examination in February 2009. At that time, the Veteran's symptoms were noted as hyper arousal, re-experiencing of trauma, avoidance, nightmares and flashbacks, disrupted sleep, intrusive daytime memories, high anxiety, panic attacks, seeing shadows, hearing voices, easily startled, and hypervigilance. The Veteran reported working at a warehouse for the past 15 years with no problems. The examiner assigned a GAF score of 54 and noted that the Veteran's thought processes and communication were impaired by his difficulties with short-term memory and concentration; in addition, the Veteran's social functioning was impaired by avoidance, isolation and anxiety. Overall, the examiner opined that the Veteran had occupational and social impairment with a reduced reliability and productivity. See VA Examination dated February 24, 2009. More recent treatment records note "significant" improvement in the Veteran's PTSD symptoms. The Veteran's nightmares decreased to, at most three times per week; at times, he endorsed no nightmares. He also still had symptoms such as startled responses to loud noise, avoidance of reminders of the war, hyper arousal, hypervigilance, and irritability. At times, the Veteran did experience a "flare-up" of his PTSD symptoms; however, when this happened, he attributed the fluctuations to certain life situations, such as the passing away of his mother, his health issues, the passing of a friend, and a brief trip to Florida. See VA Treatment Records dated April 2, 2010, May 10, 2010, September 3, 2010, April 14, 2011, June 13, 2011, and June 21, 2011. However, overall, the Veteran endorsed an improvement in his symptoms. See VA Treatment Records dated February 22, 2010, March 10, 2010, February 15, 2011, February 28, 2011, April 14, 2011, July 12, 2011, April 25, 2011, January 26, 2012, October 24, 2013, and January 23, 2014. During this period, the Veteran's GAF score was noted as 45. See VA Treatment Record dated October 12, 2010. The Veteran was given a second VA examination in 2012. At that time, the Veteran's symptoms were noted as depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, exaggerated startled response, fatigue, and visual hallucinations. As for social interaction, the Veteran described his 20 year marriage as unstable. He also indicated that he had six siblings, but only kept in touch with one of them, as the rest did not live locally. The examiner assigned a GAF score range of 60 to 65 and noted that the Veteran had occupational and social impairment with deficiencies in most areas. In so finding, the examiner noted the Veteran's difficulty interacting with others and deficiencies in concentration, attention, and memory. See VA Examination dated September 24, 2012. The Veteran was afforded a more recent VA examination in 2015. The Veteran's symptoms included: depressed mood, anxiety, chronic sleep impairment, disturbances of mood and motivation, and difficulty establishing and maintaining effective work relationships. The examiner diagnosed chronic, moderate PTSD with mild depressive symptoms, stable with medication and therapy. The examiner ultimately noted that the Veteran had occupational and social impairment with reduced reliability and productivity. See VA Examination dated June 24, 2015. Also of record are two statements from the Veteran's treating medical professionals. The first statement, written by the Veteran's doctor and social worker, reports that due to the Veteran's PTSD, he is totally and permanently disabled. They note that the Veteran experiences significant distress and impairment in the social, occupational, recreational, and familial areas of function, and thus, he is permanently and totally disabled. See Letter from Dr. R.W.H. and Social Worker J.P. dated July 24, 2009. In a more recent letter, the Veteran's treating psychologist, Dr. L.H. diagnosed the Veteran with chronic and severe PTSD. See Letter from Dr. L.H. dated September 11, 2012. After careful and thorough review of the evidence of record, the Board finds that the Veteran's PTSD more nearly approximates a 50 percent disability rating and no higher. In reaching this conclusion, the Board has considered the lay evidence of record, specifically the testimony of the Veteran at the January 2015 Board hearing. At that time, the Veteran reiterated his consistent symptoms of nightmares and flashbacks, along with visual hallucinations and avoidance. He also indicated that at times, he has to "get away" from his family because he needs time alone. The Board finds the Veteran to be a consistent historian and his testimony as to his symptomatology is not only competent but also highly credible. 38 C.F.R. § 3.159(a); see Barr, supra. As such, the Board finds the lay evidence of record to be highly probative in support of the Veteran's claim. The record consistently shows that the Veteran has had frequent nightmares, flashbacks, sleep disturbances, and irritability along with auditory and visual hallucinations, hypervigilance and hyper arousal, which have consistently affected his occupational and social functioning throughout the appeal period. The Board also notes that the functional impact of the Veteran's symptoms cannot be disputed. Indeed, while he states that he has a good relationship with his family, there are times when he needs to isolate himself; further, the Veteran was laid off because he was unable to work with the public. However, the Board finds that the frequency and severity of his PTSD symptoms over the appeal period has most nearly approximated that contemplated by the 50 percent disability rating and no higher. While the Veteran was employed he described having a good rapport with his co-workers and no trouble on the job. In addition, he has endorsed spending time with his grandchildren and working in his garden. Treating physicians have described his mood as "cheerful," to the point where he was willing to reduce his individual counseling sessions. In addition, the evidence of record demonstrates several "flare ups" of the Veteran's PTSD symptoms. However, treating physicians have noted that these increases in symptoms are not consistent, but rather are in response to certain triggers and are short in duration. The Board recognizes the conflicting medical opinions of record. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Of the three VA examinations, only one examiner indicated that the Veteran's occupational and social impairment caused deficiencies in most areas. However such an opinion was inconsistent with the contemporaneously assigned GAF score range of 60-65. See VA Examination dated September 2012. In addition, while the letters from the Veteran's treating physicians note that the Veteran is totally and permanently disabled due to his PTSD, they do not explain discuss the conflicting contemporaneous medical treatment records which show that the Veteran's symptoms are improving. As such, the Board finds that the probative value of the September 2012 VA examination and the two letters on record to be outweighed by that of the VA treatment notes and the two VA examinations, dated February 2009 and June 2015. While sympathetic to the Veteran's condition, the Board finds that the Veteran's overall disability picture more nearly approximates a 50 percent evaluation and no more. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to an initial rating in excess of 50 percent for PTSD is denied. ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs