Citation Nr: 1752496 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-47 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. 3. Entitlement to an effective date prior to June 11, 2015 for the assignment of a 50 percent evaluation for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1970 to December 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2009 and October 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. A review of the legacy content manager documents reveals additional VA treatment records that have also been reviewed. FINDINGS OF FACT 1. Resolving reasonable doubt, the Veteran's bilateral hearing loss is related to noise exposure incurred in service. 2. The Veteran's PTSD symptoms more nearly approximate occupational and social impairment with deficiencies in most areas, but symptoms of total occupational and social impairment have not been demonstrated. 3. On September 1, 2015, the RO received a claim of entitlement to an increased rating for PTSD. 4. An increase in the Veteran's PTSD symptomatology became factually ascertainable on November 17, 2014, but not earlier. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 70 percent rating for PTSD, but no higher rating, have been met. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for an effective date of November 17, 2014, but no earlier, for the assignment of a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.400, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service connection The Veteran claims that he has bilateral hearing loss as a result of noise exposure incurred in combat while working as a helicopter mechanic and door gunner. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. This regulation does not necessarily preclude service connection for hearing loss that first meets the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1110 and 1131; C.F.R. § 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. If medical evidence sufficiently demonstrates a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service and the requirements of 38 U.S.C. § 1110 are satisfied. Hensley, 5 Vet. App. at 160. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107 (b). The Board first finds that the Veteran has a current bilateral hearing disability under 38 C.F.R. § 3.385. Specifically, a VA examination in October 2009 revealed pure tone thresholds of 40 decibels or greater in the 3000 and 4000 Hertz frequencies bilaterally. The Board next finds that the Veteran was exposed to loud noise during active military service. The Veteran has competently reported being exposed to the loud noise while in service and such exposure is consistent with the type, and circumstances of his service. Specifically, the Veteran's military personnel records show that he was a helicopter mechanic and door gunner, thus in-service hazardous noise exposure is established. Turning to a nexus between the Veteran's current hearing loss and in-service noise exposure, there are three opinions of record. An October 2009 VA audiologist opined the Veteran's current hearing loss was less likely than not related to military service. The rationale provided was that during service and upon separation all testing indicated normal hearing thresholds with no significant changes in hearing thresholds. In October 2010 private medical opinion from "the Hearing Place" performed a hearing evaluation and rendered an opinion regarding the Veteran's hearing loss and his tinnitus and their probable etiology. The examiner reported on family influences and genetic predisposition of the Veteran along with occupation and environment prior to the military. The examiner also detailed post military exposure to noise and the steps taken by the Veteran to minimize loud noise exposure. Reviewing his military service noise exposure, the examiner concluded that the Veteran's bilateral hearing loss was more likely than not the result of his military service. In February 2013, the Veteran underwent an additional VA audiology examination. The VA examiner again noted no shift in hearing thresholds during active military duty and opined the Veteran's current hearing loss was less likely than not related to military service. The Board finds the private audiologist's opinion more probative than the VA audiologist opinions. Specifically, both VA medical opinions lack a rationale beyond the Veteran's pure tone threshold results during service and at separation. The private audiologist detailed the Veteran's pre and post service noise exposure. The examiner also noted the correlation between hearing loss and tinnitus. The private opinion concluded that the Veteran's bilateral sensorineural hearing loss was more likely than not the result of his military service. As such, the private audiologist's opinion provides a better basis for the Board to form a fully informed decision. As such, reasonable doubt should be resolved in the Veteran's favor. 38 U.S.C. § 5107 (West 2012). Although the VA examiners provided negative medical opinions, the reliance solely on no evidence of hearing loss shown in service renders the medical opinion insufficient since hearing loss does not need to be shown in service for service connection to be established. Hensley, supra. Furthermore, the private opinion stated that the Veteran's bilateral hearing loss is consistent with noise exposure/acoustic trauma and the evidence of record shows noise exposure or acoustic trauma primarily in service. In addition, the Veteran is competent to report when his symptoms of hearing loss began and a private audiologist determined that it was at least as likely as not that the Veteran's hearing loss was the result of his military service. Thus, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for his bilateral hearing loss is warranted. See 38 C.F.R. § 3.102. III. Increased rating for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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, reconciling the various reports into a consistent picture so that the current rating many 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 questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures 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 disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran's service-connected post-traumatic stress disorder has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides, in part as follows: A 50 percent disability rating is warranted when the Veteran experiences 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. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The Board has reviewed all of the evidence in the record. 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 folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual background and analysis The Veteran was referred to behavioral medicine services in November 2014 and first provided a behavior health lab assessment on November 17, 2014. This assessment showed symptoms consistent with major depressive depressive disorder, generalized anxiety, PTSD and psychosis. The summary scores provided indicated moderate symptoms for each of the identified disorders. The Veteran reported excessive worry, difficulty concentrating, irritability, difficulty sleeping, little interest or pleasure, feeling down or hopeless, trouble sleeping, guilt, trouble concentrating, avoiding thoughts, feeling distant, easily startled, being upset, disturbing memories, and anxiety. He also reported some hallucinations, but denied any suicidal ideations. He related being financially comfortable, having good contact with friends or relatives and feeling loved and cared for. The Veteran continued to be monitored by mental health, with each subsequent follow up visit reporting largely similar findings. The Veteran even seemed to be showing slight improvement during individual findings during February and early June. The Veteran was provided a VA examination for PTSD on June 11, 2015. This examination reflected occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported high social functioning, being currently married for 15 years and having good relationship with his kids, grandkids, and friends. He fishes with a friend. He also hunts and works on his truck in his garage. He visits with his mother two to three times a month. The Veteran reported losing his job due to realignment and not any mental health symptoms, although he did note that he worked alone and that was probably why he worked so long and well. He was not feeling hopeless about the futhre, had no thoughts about taking his own life, and had no homicidal ideations. The Veteran stated that he hardly had friends. The examination noted intrusive thoughts, irritability, angry outbursts, flashbacks, nightmares, depressed mood, anxiety, suspiciousness, avoidance behaviors, survivors guilt, detachment, feeling numb, flattened affect, hypervigilance, exaggerated startle response, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran continued to meet the criteria for PTSD, with moderate to severe symptoms, and his symptoms were more significant in all areas since his last exam in 2008. The Veteran generally contends that his PTSD symptoms warrant a disability rating in excess of 50 percent for the increased rating period. On his VA Form 9 he pointed to the symptoms listed in the June 2015 examination as reasons his PTSD should be rated in excess of 50 percent. The representative also submitted statements contending extremely broadly, and with no specifics, that a disability rating in excess of 50 percent is warranted. After a review of all the evidence of record, lay and medical, and resolving all reasonable doubt in favor of the Veteran, the Board finds that his service connected PTSD more nearly approximates the criteria for a higher 70 percent ratring, but not higher. In granting a 70 percent rating for the Veteran's PTSD, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for PTSD. Mauerhan v. Principi, 16 Vet. App. 436 (2002). During the appeal period, the Veteran's PTSD symptoms were manifested primarily by intrusive thoughts, irritability, angry outbursts, flashbacks, nightmares, depressed mood, anxiety, suspiciousness, avoidance behaviors, survivors guilt, detachment from others, feeling numb, flattened affect, hypervigilance, and exaggerated startle response. The Board finds that symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent rating. Although the medical evidence does not show symptomatology such as speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and spatial disorientation, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board resolving all reasonable doubt finds that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be demonstrated during the appeal period. Bowling v. Principi, 15 Vet. App. 1, 11 (2001); Vazquez-Claudio v. Shinseki, 2012-7114, (Fed. Cir. Apr. 8, 2013) (70 percent rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency, or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). However, the Board emphasizes that the symptoms associated with the Veteran's PTSD did not meet the criteria for the maximum 100 percent, rating at any time. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD. The evidence of record does not indicate that the Veteran exhibited persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Veteran maintained a relationship with his wife, children, and grandchildren. He was able to be around other people, even if to a limited degree. In addition, the Veteran had not been found to have any memory loss for names of close relatives, his own occupation, or his own name. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating at any time during the appeal period. Accordingly, the Board finds that the criteria for an initial 70 percent rating, but not for a higher rating for PTSD, are met since service connection was established. Thus, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent. 38 U.S.C. § 5107 (b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Earlier effective date for increase of PTSD Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (West 2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a). The effective date of an increase may be the earliest date as of which it is factually ascertainable that an increase occurred if a claim is received within 1 year from such date, otherwise the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2). The Board notes that the Veteran's claim was received in September 2015; therefore, the relevant time frame for review starts one year prior to the receipt of the claim, in September 2014. The Veteran was provided a VA examination on June 11, 2015. This examination demonstrated an increased disability rating of 70 percent and was received within the year prior to his claim for an increased rating. However, upon further review of the record and resolving reasonable doubt in the Veteran's favor, the Board finds that an increase in his PTSD symptomatology, to 70 percent disabling, was factually ascertainable as of November 17, 2014. Specifically, a November 17, 2014 VA treatment note from that date documents the Veteran's referral for behavioral medicine services and his behavioral health lab report. The report noted symptoms that included excessive worry, difficulty concentrating, irritability, difficulty sleeping, little interest or pleasure, feeling down or hopeless, trouble sleeping, guilt, trouble concentrating, avoiding thoughts, feeling distant, easily startled, being upset, disturbing memories, and anxiety. On the other hand, VA treatment records dated prior to November 17, 2014, do not show a factually ascertainable increase in the severity of the Veteran's PTSD symptomatology. The treatment records are otherwise devoid of psychiatric evaluations within one year of the Veteran's September 2015 increased rating claim. Accordingly, although an effective date of November 17, 2014, is warranted for the 70 percent rating for PTSD, the preponderance of the evidence is against a finding that an increase in the severity of the Veteran's symptomatology was factually ascertainable prior to that date. ORDER Service connection for bilateral hearing loss is granted. Entitlement to a 70 percent rating, but no higher, for PTSD, is granted, subject to the rules and regulations governing the payment of VA monetary benefits. An effective date of November 17, 2014, but no earlier, for the assignment of a 70 percent rating for PTSD, is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs