Citation Nr: 1756736 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 06-10 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE 1. Entitlement to a rating for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to October 25, 2016, and in excess of 50 percent thereafter. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to June 1967 and from May 1968 to July 1969. This case comes before the Board of Veteran's Appeals (Board) on appeal from April 2005 and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In November 2016, the RO increased the Veteran's PTSD rating to 50 percent, effective October 25, 2016. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board brings to the RO's attention the fact that the Board previously remanded 9 issues in its August 2016 Remand. These issues include 1) entitlement to an initial disability rating (or evaluation) in excess of 20 percent for the service-connected urinary incontinence; 2) entitlement to an initial disability rating (or evaluation) in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD); 3) entitlement to service connection for right ear hearing loss; 4) entitlement to service connection for a back disorder; 5) entitlement to service connection for an eye disorder, to include open angle glaucoma and cataracts, to include as secondary to the service-connected diabetes mellitus; 6) entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability; 7) entitlement to service connection for a gastrointestinal disorder, secondary to the service-connected PTSD; 8) entitlement to service connection for a sleep disorder, secondary to the service-connected PTSD; and 9) entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Of these issues, only one of them, an increased rating for PTSD, is ready for adjudication by the Board, after completed development in accordance with Manlicon v. West, 12 Vet. App. 238 (1999). As the Board recognizes that additional development may be necessary before the other claims are adjudicated by the RO and certified again to the Board, it declines to take jurisdiction over these issues at this time. However, with regard to service connection for right ear hearing loss, the Board will take jurisdiction of that claim as it is inextricably intertwined with the claim currently in front of the Board for left ear hearing loss. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As a result, the Board will combine the left ear and right ear hearing loss claims into one claim. As for the rest of the claimed disabilities, the RO should take care to promptly implement the Board's Remand requests. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. FINDINGS OF FACT 1. During the appeal period, the Veteran's PTSD has been characterized by impairment of memory, anger, violence, chronic sleep problems, hallucinations, suspiciousness, persistent disturbances of motivation and mood, and an inability to establish and maintain effective relationships. 2. The Veteran's bilateral hearing loss is related to service. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no more, for PTSD, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veteran's Claims Assistance Act The Veteran's claim for bilateral hearing loss was originally denied in an April 2005 rating decision. As a result of appealing that decision, in May 2008, the Board bifurcated the Veteran's claim. The Board denied right ear hearing loss, but remanded the Veteran's left ear hearing loss. As a result of the Board's failure to consider favorable evidence regarding the existence of right ear hearing loss, the United States Court of Appeals for Veterans Claims (Court) vacated the decision and remanded the claim. Following the Court's instructions, the Board remanded the claim in May 2011 for a VA examination. After being again denied by the RO, both hearing loss claims were again before the Board in August 2016. At that time, the Board denied service connection for left ear hearing loss, but remanded the claim for right ear hearing loss. Once again, in March 2017, the Court vacated and remanded the Board's denial of left ear hearing loss. The Court ordered that the Board explain the discrepancy within the addendum medical opinion provided in November 2014. The examiner concluded that the Veteran's hearing was essentially unchanged between his entrance and separation examinations during his latter period of service. However, the examiner described the Veteran as possessing "mild" hearing loss at the entrance examination and "moderate" hearing loss at his separation examination. The bilateral hearing loss claim is now in front of the Board. As the full award of benefits sought on appeal with respect to service connection for bilateral hearing loss is being granted at this time, further discussion respecting the VCAA is not necessary for the claim. With respect to the Veteran's increased rating claim, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, private treatment records, and VA examinations are associated with the claims file. The examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where a veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran currently receives a 30 percent rating for PTSD prior to October 25, 2016, and a 50 percent rating thereafter, under 38 C.F.R. § 4.130, DC 9411. In order to warrant a 50 percent rating, the evidence must show 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. In order to warrant a 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; speech intermittently illogical, obscure, or irrelevant; 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. In order to warrant the next-higher 100 percent rating, the evidence must show 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/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411 (2017). Based on the evidence of record, the Board finds that a rating of 70 percent, but no more, during the appeal period is warranted. Throughout the period on appeal, the medical and lay evidence of record indicate that symptoms of PTSD includes memory impairment, chronic sleep impairment, anxiety, depressed mood, extremely impaired impulse control resulting in periods of violence, hallucinations, hypervigilance, and greatly decreased socialization. These symptoms are evenly balanced between the 50 percent and 70 percent rating criteria. Giving the Veteran the benefit of the doubt, the Board finds that a 70 percent rating is appropriate. The evidence, which includes VA examinations as well as medical records, indicates that the Veteran consistently maintained a normal appearance along with an alert and oriented mental status. His speech tone, rate, and rhythm have been consistently within normal limits. He was often friendly, attentive, and communicative when meeting with medical providers. There are no indications that he is unable to function independently. In fact, during an October 2006 assessment conducted by the Social Security Administration (SSA), the Veteran reported the ability to perform self-care, drive, read, write, use the telephone, use the computer, and manage money. He performed housework as well as played golf and softball. In a December 2012 SSA evaluation, he also reported cooking, cleaning, shopping, and doing the laundry. The Veteran has exhibited problems with memory loss throughout the appeal period and has been diagnosed mild cognitive impairment. However, such symptoms are explicitly considered in the 30 percent rating criteria. Finally, at no time did he describe a homicidal ideation, auditory hallucination, or delusions. Despite the severity of the Veteran's PTSD, there have been few, if any, reports of the symptoms listed in the criteria for a 100 percent rating. In November 2004, his wife reported that the Veteran engaged in fights over such minor issues like someone bumping his shoulder. He would also join fights that had nothing to do with him. With his explosive anger, she has learned to talk to him in a specific way and she stated that her kids walk on eggshells around him. He has anger outbursts and lashes out at his family. During an October 2006 SSA assessment, he reported road rage. During his February 2013 VA examination, he reported being arrested twice for fighting. He had a history of violence which included two incidents in the previous year, one of which involved the police. During his October 2016 VA examination, he recalled a recent situation where he thought another person had called him a name so he pushed the friend over a chair. His impulsive anger had not lessened toward the end of the appeal period as indicated by a May 2017 treatment note where he reported becoming frustrated taking out a pan that was nested with others. Although he demonstrated unprovoked irritability with periods of violence, such behavior falls far short of a persistent danger of hurting others. The record only contains a single notation suggesting a suicidal ideation when in February 2017, he stated that he experienced thoughts that he wished he would go to sleep and not wake up. These sentiments do not reflect a persistent danger to himself and are accounted for in the 70 percent rating. The Veteran has never reported auditory hallucinations, but stated in an October 2006 SSA assessment that visual hallucinations resulted in him seeing a form off to the side or a shape moving out of the corner of his eye. Again, this occurrence does not represent persistent hallucinations. Even after considering all of the above-listed factors, the Board finds that the Veteran's symptomatology, when considered together, does not warrant a 100 percent rating. Indeed, many of the objective symptoms for a 100 percent rating, to include gross impairment in thought processes and communication, intermittent inability to perform activities of daily living, and disorientation to time or place, have not been shown. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of social and occupational inadaptability. There is insufficient evidence to show that a 100 percent rating is warranted based on overall social or occupational impairment. As to the Veteran's overall social impairment, he is currently married with two children. In September 2006, he stated that he no longer attended many social activities despite previously being very active. However, he reportedly was on a softball team in October 2006. At his February 2013 VA examination, he reported a great relationship with one of his two siblings as well as a "good" overall marriage. His social activities were with family and a lot of friends. His social functioning worsened as time went on. During an October 2016 VA examination, he reported difficulty being in groups and finding himself unable to interact well at social events, including a situation where he attacked another person. His socialization consisted almost entirely of having dinner and watching television with his wife. A February 2017 VA treatment record reflects that he reported experiencing an increase in anger and agitation and had gotten into verbal altercations with long-time friends. A month later, he reported that he alienated his friends and no longer went to HOA meetings. Nevertheless, the Veteran's continued close relationships with his family leads the Board to conclude that he does not exhibit a total inability to establish and maintain effective relationships. In terms of occupational functioning, the Board notes that the Veteran filed a claim for a total disability rating based on unemployability in May 2016 in which he cited his cognitive disorder as one of the disorders inhibiting employment. Additionally, the Veteran is receiving Social Security disability benefits. During a February 2013 VA examination, the Veteran reported retiring as a manager for an engineering firm after 20 years. He stated that his work performance was good and that he liked his work. In February 2006, he explained that he quit the position after a corporate restructuring. He was offered a promotion, but turned it down and retired. The Veteran's capabilities to maintain his household and his highly skilled background indicate to the Board that a finding of total occupational impairment would not be appropriate when based solely upon his psychiatric disorder. The Board has also considered the Veteran's 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. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 51-60 indicates 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 peer or coworkers). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV, including the use of GAF scores. However, as the period on appeal partially pre-dates the amendment, the Board must continue to consider the criteria contained in the DSM-IV. See 38 C.F.R. § 4.126(a). In February 2013, the Veteran was assigned a GAF score of 60. The Board finds that the Veteran's GAF score underrates his severe symptomatology characterized by social and occupational functioning with deficiencies in most areas, which is consistent with that shown by the Veteran. Therefore, the Board finds that a 70 percent rating is warranted for the Veteran's PTSD throughout the appeal period. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran's statements, which were made both directly to the Board and via his medical providers, were explicitly taken into account as shown by many of the examples of the Veteran's symptoms provided above. Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). The Veteran is seeking entitlement to service connection for bilateral hearing loss. He asserts that he suffered hearing loss during his second period of active duty. In cases where a hearing loss disability is claimed, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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 (2017). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. Based on the evidence of record, the Board determines that service connection is warranted for bilateral hearing loss. During his February 2013 VA examination, he reported exposure to mortars, convoys, explosions, gunfire, trucks, and heavy equipment without hearing protection. Therefore, the Board finds that the Veteran was exposed to acoustic trauma during his active service. Moreover, there appears to the Board to be a perceptible tonal threshold shift from the time the Veteran entered his second period of active duty until the time he left that period of service. His pure tone thresholds, in decibels, measured in ASA units, during his second entrance examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -10 -10 -5 -5 LEFT -5 -10 -5 0 40 His pure tone thresholds, in decibels during his second separation examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 N/A 0 LEFT 5 5 0 N/A 50 A comparison of the tonal thresholds of the two examinations reflects a tonal threshold shift of approximately 5 to 10 dB at several frequencies, and as much as 5 to 15 additional dB, if the tonal thresholds are converted from ASA units to ISO-ANSI units. Next, the February 2013 audiological evaluation reflects findings which meet the requirements of 38 C.F.R. § 3.385. Specifically, the VA examination reflects hearing loss of 40 dB or greater or more at multiple frequencies. The examiner opined in a November 2014 addendum opinion that it is less likely than not that the Veteran's hearing loss is related to military service. However, as noted by the examiner and observed by the Court, the examiner determined that his hearing loss was characterized as mild high frequency loss at entrance and moderate high frequency loss at separation. Therefore, the examiner herself found a difference in hearing between the beginning and end of service. As the examiner failed to take into account the tonal threshold shifts from the beginning of service to the end of active service as required by Hensley v. Brown, 5 Vet. App. 155 (1993), to include conversion from ASA to ISO-ANSI, the Board finds that this opinion has no probative value. Given the presence of a threshold shift in service, the nature of the Veteran's acoustic trauma, and the presence of current hearing loss for VA purposes, the Board finds that it is at least as likely as not that his hearing loss is etiologically related to service. Therefore, service connection is warranted on this basis. ORDER A 70 percent rating, but no more, for PTSD, is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for bilateral hearing loss is granted. ______________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs