Citation Nr: 1754490 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-16 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) in excess of 70 percent prior to December 4, 2015. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2003 to February 2004, and from February 2006 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and January 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington and Muskogee, Oklahoma, respectively. The claims are now solely under the jurisdiction of the Seattle RO. In June 2017, the Veteran presented sworn testimony during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran filed another claim for an increased rating for PTSD in April 2012, and the RO granted an increased evaluation of 70 percent in January 2013. The Veteran filed a timely notice of disagreement, and the RO then increased the Veteran's evaluation to 100 percent, effective December 4, 2015. 2. Prior to December 4, 2015, the Veteran's service-connected PTSD has been manifested by occupational and social impairment with deficiencies in most areas such as his work, school, family relations, judgment, thinking, or mood due to symptoms such as depression, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships; total occupational and social impairment was not shown. CONCLUSION OF LAW Prior to December 4, 2015, the criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in May 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the March 2016 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. PTSD Under Diagnostic Code 9411, the General Rating Formula for Mental Disorders is used for PTSD. 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. Finally, 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; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). The use of the term 'such as' in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (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." Within the DSM-IV, the Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive. The same is true of any physician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record. A GAF score of 31 to 40 reflects some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as with work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score 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). Scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning "pretty well," and has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). When evaluating a mental disorder, the Board shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Evaluation in Excess of 70 Percent Prior to December 4, 2015 The Veteran received a VA examination for his PTSD in June 2012. The examiner found that the Veteran had problems in his primary relationships, social relationships, social/recreational pursuits, and occupation, and assigned a GAF score of 45. The Veteran reported that he talked to his parents every Friday, but no longer talked with his sister. He stated that he had been married for 15 years and had four children. However, he further stated that his irritability and anger negatively impacted his relationship with his family; the Veteran recounted that his eldest daughter told him that she was scared of him. The Veteran also indicated that he worked as a truck driver prior to joining the military, but was laid off. When he was discharged, the Veteran returned to truck driving but then quit because he was not making enough money. He then worked at Walmart, but was fired because he had an attitude. The Veteran recounted that he was unemployed for the last two years; he wanted to work, but indicated that his life had gotten to a certain degree where he no longer cared and now had to depend on his wife. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, short and long-term memory impairment, impaired judgment, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. As a result, the examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In June 2012, a social worker submitted correspondence indicating that she had known the Veteran since 2002 because she worked with his son who had a kidney disease. Over the last calendar year, the social worker indicated that she observed marked changes in the Veteran's behavior, including a neglect in his personal appearance and hygiene. His self-care deteriorated to the point where the Veteran was asked to leave the unit where his son was being treated, and he had not been able to sufficiently maintain his personal hygiene sufficiently to return. When the Veteran brought his son to the hospital for treatment, he would enter the unit alone while the Veteran sat in the car. The same social worker also indicated that the Veteran had shown erratic and irrational behavior that had put his son's health and welfare at risk. The Veteran refused to provide documents for financial assistance for his son's treatment, and he also was noted to have erratic spending habits that left his family in significant financial difficulty. The Veteran was hospitalized in July 2012 when his wife called 911 after finding him in the closet with a loaded gun which she had to wrestle away from him. The Veteran indicated that he had been experiencing a worsening of his mood, and also had worsening of nightmares and hypervigilance due to increasing marital discord with accusations of infidelity. It was noted that, in the past three months, the Veteran often felt life was not worth living and actually loaded his gun two or three times with the thought of ending his life; he was, however, able to talk himself out of it. At the time of hospitalization, the Veteran denied current suicidal or homicidal ideations. However, he admitted that, on the day of admission, his wife and 15 year old daughter had to wrestle a loaded rifle out of his mouth as he stood in the closet. At that time, he was employed full time as a truck driver at night, and was a student during the day. The treating physician noted that the Veteran was fairly groomed and his behavior was calm and cooperative. His speech was normal and his mood was "ok." The Veteran's affect was noted to be of normal range and reactivity, and his thought process was linear, logical, and goal oriented. The Veteran received mental health treatment for his PTSD, and in June 2013, the social worker noted that the Veteran talked about making progress towards coming out of his "cocoon." The Veteran's thought content was found to be organized and goal directed, and his speech was coherent and unimpaired. His affect was appropriate and unremarkable, and the examiner indicated that there was no evidence of any suicidality or dangerousness to others. As a result, the social worker assigned a GAF score of 55. The Board finds the examination and treatment records highly probative of the Veteran's mental state prior to December 4, 2015, and concludes that an evaluation higher than 70 percent is not warranted for that time period. The competent, credible medical evidence indicates that the Veteran had a strained relationship with his family which led to an incident where the Veteran came close to ending his life. The Board notes, however, that this was an isolated incident (for the time period on appeal) and the Veteran denied suicidal ideations afterwards. He is not in persistent danger of hurting himself or others Furthermore, the Veteran had a positive relationship with his parents and was active in his son's treatment, driving him to the hospital despite neglecting his own personal hygiene. The Veteran also exhibited impaired impulse control through spending habits which manifested after arguments with his wife. He has not, however, exhibited such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. As such a 100 percent evaluation is not warranted as the Veteran did not have total occupational and social impairment. ORDER An evaluation in excess of 70 percent for PTSD prior to December 4, 2015, is denied. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. The Veteran received VA audiological examinations in June 2012 and September 2015. The June 2012 examiner found that the puretone test results were not valid for rating purposes, and the September 2015 examiner found that there was no diagnosis of hearing loss due to inconsistent results. However, the September 2015 examiner found that, even if hearing loss were present, it would be less than likely due to noise exposure in military service as there was no significant decrease in hearing acuity while in service. The Board finds that the VA examination reports are inadequate. The existence of a shift or demonstrable hearing loss during active service is not required for a positive nexus opinion. Indeed, Hensley v. Brown, 5 Vet. App. 155, 159 (1993), held that service connection for hearing loss is not precluded where such hearing loss first met VA's definition of disability after service. In fact, the Court stated that the Veteran could have normal findings at separation and service connection could still be established. Id. at 159. Thus, if normal hearing at separation does not preclude service connection, it is clear that the lack of any threshold shift would also not act as a barrier. Therefore, based on all of the foregoing, the Board finds that the Veteran should be provided a new examination and opinion by another appropriate examiner with respect to the etiology of his current bilateral hearing loss. The Veteran, however, has a duty to cooperate in the development of a claim. Wood v. Derwinski, 1 Vet. App. 191 (1991). The Veteran's refusal to participate or cooperate in a VA examination absent a showing of good cause is akin to a failure to report for VA examination for purposes of VA regulations under 38 C.F.R. § 3.655. See VAOPGCPREC 4-91 (Feb 13, 1991). Failure to cooperate during VA examinations subjects the Veteran "to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination by an appropriate examiner other than the June 2012 and September 2015 VA examiner to determine the current severity and etiology of the Veteran's bilateral hearing loss. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hearing loss is due to an event or incident of the Veteran's period of active service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veterans claim for service connection for hearing loss. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs