Citation Nr: 1801247 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-18 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for PTSD prior to January 31, 2017 and in excess of 50 percent thereafter. 2. Entitlement to a disability rating in excess of 0 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Coast Guard from January 1971 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2013 and two separate March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The October 2013rating decision granted service connection for PTSD and assigned an initial 30 percent rating, effective November 10, 2008. Subsequently, in a May 2017 rating decision, a 50 percent rating was granted effective January 31, 2017. Because this award does not represent the highest possible rating available under the Rating Schedule for this disability, and because the Veteran has not indicated that he is content with the new rating, his increased initial rating claim remains on appeal. One March 2014 rating decision denied an increased evaluation for hearing loss of the right ear. The other March 2014 rating decision granted service connection for hearing loss of the left ear and assigned a 0 percent rating effective August 1, 2013. Although the Veteran's April 2014 notice of disagreement only noted right ear hearing loss, the May 2014 statement of the case addresses bilateral hearing loss and his May 2014 substantive appeal form lists bilateral hearing loss. Therefore, the Board will consider the increased rating claim for bilateral hearing loss. In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. FINDINGS OF FACT 1. The severity, frequency, and duration of the symptoms of the Veteran's service-connected PTSD has more nearly approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety, panic attacks, sleep impairment, isolation-seeking behavior, flashbacks, and hypervigilance. 2. The Veteran's bilateral hearing loss is manifest by, at worst, Level II in the right ear and Level I in the left ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no higher, for PTSD have been met for the appeal period. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). PTSD When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA 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. 38 C.F.R. § 4.126 (a) (2017). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2017). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula), which provides for a 30 percent rating when there is 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). 38 C.F.R. § 4.130 (2017). A 50 percent rating when the evidence shows 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted when the evidence shows 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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. Id. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126 (a) (2017). The Board is mindful that the lists of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Veteran maintains that his PTSD warrants a rating higher than 30 percent disabling throughout the entire appellate period. He is currently rated at 50 percent disabling for PTSD, effective January 31, 2017. After a review of the record, the Board finds that the Veteran's PTSD disability more nearly approximates a 50 percent rating. VA treatment records in 2009 reveal complaints of sleep impairment, nightmares, fatigue or loss of energy, diminished ability to concentrate, irritability, excessive anxiety and worry, difficulty controlling the worry, restlessness, feeling "keyed up" or on edge. VA treatment records in 2010 reveal continued complaints of sleep impairment, nightmares and anxiety. The Veteran remained on sick leave and indicated that he tried to return to work; however, he was unable to do so and did not think that he would be to return to work. He denied a history of, and current suicidal ideations and attempts. A September 2011 VA treatment note shows that the Veteran was sleeping poorly and tended to be on guard and hyper alert. He denied suicidal ideation and attempts. A May 2012 VA treatment record shows that the Veteran continued to have nightmares and sleep impairment. He reported that he startles easily to sounds, like a car backfiring, and becomes anxious and hypervigilant. He noted that many things trigger flashbacks. He denied feelings of hopelessness and denied any suicidal ideation. A September 2013 VA examination report shows that the Veteran's PTSD was manifest by chronic sleep impairment, anxiety, and occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. A January 2017 VA examination report shows symptoms of suspiciousness, depressed mood, intermittent inability to perform maintenance of minimal personal hygiene, anxiety, chronic sleep impairment, occupational and social impairment with reduced reliability and productivity. The examiner reported that the Veteran remains married, but he continues to sleep in a separate room because of his nightmares. At the July 2017 videoconference hearing, the Veteran testified that his PTSD symptoms include sleep impairment and crowd avoidance. He reported that he continues to take medication. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 50 percent evaluation is warranted for the entirety of the appeal period. As discussed above, an evaluation of 50 percent is warranted for PTSD with occupational and social impairment with reduced reliability and productivity due to symptoms such as panic attacks, impairment of short- and long-term memory, and disturbances of motivation and mood. Based on the lay statements and medical evidence of record, the Board finds that the extent of the Veteran's disability in conjunction with his reported symptoms meet the criteria of a 50 percent evaluation but no higher. The Veteran's symptoms do not reach the level necessary for a higher, 70 percent evaluation. The Veteran has not demonstrated deficiencies in most areas such as work, school, family relations, thinking or mood. He has not endorsed suicidal or homicidal ideation; and has not demonstrated obsessional rituals, illogical, obscure, or irrelevant speech; near near-continuous panic attacks or depression affecting his ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including a work or work-like setting); or inability to establish and maintain effective relationships. The Board considered the January 2017 VA examination report which notes intermittent inability to perform maintenance of minimal personal hygiene. However, such intermittent inability does not amount to neglect of personal appearance and hygiene as required for a higher rating. Therefore, the Board finds that a higher, 70 percent evaluation is not warranted. Bilateral Hearing Loss The Veteran contends that a compensable rating is warranted for his service-connected bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 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 rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. The Veteran's bilateral hearing loss is currently evaluated under the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6100. The Ratings Schedule, under Diagnostic Code 6100, provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I though XI) for hearing impairment, established by a state licensed audiologist including a mandatory controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85 (2017). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran underwent a VA examination in November 2013. His puretone thresholds, in decibels, were as follows: Frequency (Hz) 1000 2000 3000 4000 Right 25 50 65 105 Left 15 20 20 40 Average puretone thresholds were 61 decibels in the right ear and 24 decibels in the left ear. Speech recognition scores, performed with the Maryland CNC test, were 96 percent in the right ear and 100 percent in the left ear. Applying the results of the November 2013 examination to Table VI reflects that the Veteran had Level II hearing loss in his right hear and Level I in his left ear. A 0 percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II with column I. 38 C.F.R. § 4.85 (2017). The Veteran underwent another VA examination in February 2017. His puretone thresholds, in decibels, were as follows: Frequency (Hz) 1000 2000 3000 4000 Right 30 55 75 95 Left 30 25 30 50 Average puretone thresholds were 64 decibels in the right ear and 34 decibels in the left ear. Speech recognition scores, performed with the Maryland CNC test, were 86 percent in the right ear and 100 percent in the left ear. Applying the results of the February 2017 examination to Table VI reflects that the Veteran had Level III hearing loss in his right hear and Level I in his left ear. A 0 percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column III. 38 C.F.R. § 4.85 (2017). The evidence does not support the assignment of a compensable rating for bilateral hearing loss. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating of 50 percent for PTSD is granted. A rating in excess of 0 percent for bilateral hearing loss is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs