Citation Nr: 1752908 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-07 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 30% for posttraumatic stress disorder (PTSD) prior to August 28, 2014, and to a rating in excess of 50% thereafter. 2. Entitlement to a compensable rating for right ear hearing loss. 3. Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from August 1968 to May 1974, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at a November 2016 videoconference hearing. A transcript is of record. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The issue of entitlement to a compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal period, the Veteran's PTSD symptoms have resulted in total social and occupational impairment. CONCLUSION OF LAW The criteria for a total disability rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 4.1 4.3, 4.7, DC 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vasquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has sent the Veteran letters throughout the appeal period which set out the type of evidence needed to substantiate the claim. The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone a VA examination in connection with his claim for increase. The Board finds the examination adequate, because it included a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to a disability rating in excess of 30% for posttraumatic stress disorder (PTSD) prior to August 28, 2014, and to a rating in excess of 50% thereafter. The Veteran's service connected PTSD has been evaluated under 38 C.F.R. § 4.130, DC 9411. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. A 30 percent rating contemplates 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, recent events). A 50 percent rating is assigned when there is 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 rating is assigned 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 circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 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, or for the Veteran's own occupation or name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF 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 GAF 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 GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Turning to the evidence of record, the Board observes that the Veteran has not undergone significant psychiatric treatment during the current appeal period. By his own acknowledgement, as he explained at his November 2016 Board hearing, the Veteran does have a history of significant mental health treatment, including individual and group therapy, but has not found treatment effective. Rather, he asserts that treatment efforts have tended to compound his symptoms. The Veteran's account is supported by numerous lay statements submitted by his wife in support of this appeal. An April 2012 statement credibly notes that the Veteran constantly re-lives the in-service incident wherein his helicopter was shot down and his co-pilot killed. The Veteran was also a victim of an in-service sexual assault, which incident he and his wife have consistently maintained he re-experiences on a regular basis. At his hearing, the Veteran asserted that he is entirely withdrawn from any form of socialization, and is unable to use public bathrooms or locker rooms due to his PTSD symptoms. He is constantly vigilant, and beset by severe sleep problems which render him exhausted throughout the day. He also described violent outbursts while asleep, an account confirmed by his wife. Finally, the Veteran acknowledged angry outbursts. The Veteran left the workforce after suffering a cerebrovascular accident in 2011. Although he is lately recovered from the effects of that accident, the Veteran states that due to the aggregate effects of his psychiatric symptoms, he is unable to return to the workforce. The Veteran has been afforded two VA psychiatric examinations. The first was conducted in November 2011, the examiner noting effective family role functioning, but difficulty with outside pursuits, such as leisurely or recreational pursuits, maintenance of an active social life, or work functioning. The examiner noted depressed mood, anxiety, and chronic sleep impairment, concluding that the Veteran's symptoms would be expected to cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. A second VA examination was conducted in August 2014. That examiner documented the Veteran's lack of any appreciable social interaction outside his family and a small group of fellow Veterans, adding the Veteran partakes of no hobbies and is beset by very poor sleep, constant depression, and period angry outbursts. Notes associated with this examination also reflect periodic suicidality, and additional symptoms including claustrophobia, severe reticence around groups or in most public spaces, and constant re-living of trauma. Based on the above, the Board finds that the Veteran's degree of limitation throughout the appeal period has been substantially greater than previously assessed. Moreover, there is no significant evidence that the Veteran's symptomatology has changed substantially over the course of the appeal period. By the Veteran's and his wife's credible statements and testimony, symptoms have been overwhelming and debilitating throughout the current appeal period. The Veteran has neither worked nor enjoyed any significant social or leisure activities at any time during the period. Hence, the Board finds that the evidence establishes the Veteran is unemployable for the entire appeal period. The record reveals virtually no capacity for socialization, constant and debilitating depression and re-experiencing of trauma, hypervigilance, fear of public spaces and crowds, bouts of anger and violent urges, and periodic suicidality. While the Veteran does not have all the criteria listed in the 100 percent rating, considering the overall disability picture, the Board finds that the Veteran's symptomatology equates in frequency, duration and severity to total social and occupational impairment. Accordingly, a total rating is assigned for the Veteran's PTSD for the entire period on appeal. ORDER Entitlement to a total disability rating for PTSD is granted for the entire period on appeal. REMAND The Veteran was last afforded a VA audiological examination in August 2014. While the results of this VA examination do not reflect hearing loss of such a severity as to warrant a compensable rating, the Veteran has contended, including at his November 2016 hearing, that his hearing disability had worsened in the intervening years. Therefore, the Board finds that the Veteran should be afforded a new examination to evaluate the current nature and severity of his hearing disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected bilateral hearing loss. The electronic claims folders should be made available to the examiner for review in conjunction with the examination. Any indicated studies should be performed. The examination should be conducted in accordance with the current disability benefits questionnaire or examination worksheet applicable to hearing loss. 2. After completion of the above, readjudicate the claim. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the statement of the case, and provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs