Citation Nr: 1802723 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-31 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder, currently evaluated as 70 percent disabling. 2. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1949 to October 1952, to include combat service during the Korean War. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran and his wife testified at an RO hearing. A transcript of the hearing has been associated with the claims file. In January 2017, the Board remanded these three issues for further development. In a June 2017 rating decision the ratings for post traumatic stress disorder and bilateral hearing loss were each increased to 70 percent effective March 8, 2011 and June 16, 2016 respectively. The appellant was also awarded a total disability evaluation based on individual unemployability due to service connected disorders effective July 16, 2011, as well as special monthly compensation pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350. The ratings assigned the appellant's posttraumatic stress disorder and hearing loss did not constitute a complete grant of benefits and those issues are back remain before the Board. The issue of entitlement to a total disability rating due to individual unemployability is considered granted in full and is therefore no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran's Virtual VA electronic claims file and the Veterans Benefits Management System paperless claims processing system have been reviewed in conjunction with the current appeal. Any future consideration of this case must account for the electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. At no time has the Veteran's post-traumatic stress disorder been manifested by symptoms which cause total social or occupational incapacitation. He does not show such symptoms as a gross impairment in thought processes or communication; persistent delusions or hallucinations; a persistent danger of hurting himself or others; an intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 2. Prior to June 16, 2016, the Veteran's service-connected bilateral hearing loss has been characterized by no more than Level IX hearing impairment in the right ear, and Level IV hearing impairment in the left ear. 3. Since June 16, 2016, the Veteran's service-connected bilateral hearing loss has been characterized by no more than Level XI hearing impairment in the right ear, and Level VIII hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for post-traumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an evaluation in excess of 30 percent for bilateral hearing loss prior to June 16, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). 3. The criteria for an evaluation in excess of 70 percent for bilateral hearing loss since June 16, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained 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; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of 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. See 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Board has reviewed all of the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Post-Traumatic Stress Disorder In a June 2011 rating decision the Veteran was granted entitlement to service connection for post-traumatic stress disorder effective March 8, 2011. Since that date the disorder has been evaluated as 70 percent disabling, under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Using the General Rating Formula for Mental Disorders, a 70 percent rating is warranted 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 that 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 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Veteran was provided VA post-traumatic stress examinations in May 2011, February 2013, and May 2017. During the Veteran's May 2011 examination he described symptoms of forgetfulness, crying easily, anxiety, depression, sleep disturbance, becoming easily upset by things that remind him of Korea (for example, if the air conditioning is on, he becomes upset because Korea was cold), becoming easily irritated, increased conflicts with his wife, suspiciousness about his wife, becoming verbally abusive toward his wife, and occasionally physically pushing his wife. The Veteran denied any history of suicide attempts. The severity of the symptoms was described as moderate, and the appellant reported having good adjustment during periods of remission. The Veteran described his relationship with his children as wonderful. He was still married and spoke with his children. Mental status examination revealed the appellant to be oriented, and to have appropriate appearance and hygiene. His behavior was appropriate, and he maintained good eye contact during the examination. Affect and mood showed anxiety and depressed mood. He reported frequent symptoms of depression and anxiety. Communication and speech were within normal limits. The claimant did show impaired attention and/or focus, and he reported difficulty concentrating. Panic attacks were absent, and there was no suspiciousness present. Delusional history was present occasionally, including sometimes he feeling that his wife did things to purposely upset him so that he would get sick. At the time of examination, there was no delusion observed. Hallucination history was intermittent, including seeing people in his room. At the time of examination, there was no hallucination observed. Obsessive - compulsive behavior is absent. Thought processes were impaired as he had difficulty understanding directions and forgot what he was talking about when he was in the middle of a thought. Claimant demonstrated some difficulty understanding questions and questions needed to be re-stated and simplified. Judgment was not impaired. Abstract thinking was abnormal, and some tendency for concrete thinking was demonstrated. The claimant's memory was moderately impaired with retention of highly learned material, and forgetting to complete tasks. During the examination he demonstrated some difficulty remembering the question that was asked while he was in the middle of answering the questions. Suicidal and homicidal ideation were absent. The examiner described the Veteran's status as "Currently, he has difficulty establishing and maintaining effective social relationships because he is easily irritated. Currently, he has difficulty maintaining effective family role functioning because he has been having increasing marital conflicts due to his tendency to yell at his wife and sometimes even push her. Currently, he has intermittent inability to perform recreation or leisurely pursuits because of loss of interest in most activities he once enjoyed". A global assessment of functioning score of 55 was assigned. During his February 2013 VA examination the Veteran's posttraumatic stress disorder was opined to be in remission, and to be manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran's symptoms included suspiciousness, a chronic sleep impairment, mild memory loss, spatial disorientation, and disorientation to time or place. Suicidal ideation was not reported. The Veteran did report needing to sleep separately from his spouse because he would hit her or yell out in his sleep. The claimant also reported frequent nightmares, needing to check the house doors at night, crying easily, and being hypervigilant. The examiner opined that the claimant's service connected disorders did not render him unable to work. The diagnosis was posttraumatic stress disorder and a global assessment of functioning score of 55 was provided. Following a May 2017 VA examination the Veteran was judged to suffer from posttraumatic stress disorder manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. On examination the appellant reported believing that his posttraumatic stress disorder symptoms had been increasing as of late. He reported his symptoms as a depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. Suicidal ideation was not reported. Mental status examination revealed the appellant to be alert, and oriented. He used good eye contact, and his speech was normal. The appellant did show a mildly anxious mood with a congruent affect. Memory, cognition, concentration, insight, and judgment were judged as adequate. The Veteran first filed his claim for entitlement to post-traumatic stress disorder in March 2011. He was originally rated as 50 percent disabled due to post-traumatic stress disorder. This rating was raised to 70 percent disabling by the Appeals Management Center and made effective March 8, 2011, the date he first filed his claim for post-traumatic stress. A review of the evidence reflects that a rating in excess of 70 percent is not warranted for any period during the pendency of the claim. At no time was the Veteran's symptomatology due to posttraumatic stress disorder manifested by total occupational and social impairment, due to such symptoms as a gross impairment in thought processes or communication; or persistent delusions or hallucinations. A no time was posttraumatic stress disorder manifested by grossly inappropriate behavior, and at no time was he in persistent danger of hurting self or others. The appellant was able to perform activities of daily living (including maintenance of minimal personal hygiene), he was never disoriented to time or place, and while mild memory problems were shown at no time was any memory issue so severe that the Veteran could not recall the names of close relatives, his own occupation, or own name. The Veteran's reported social functioning has been fairly consistent throughout the period on appeal, with social isolation and interaction with family. Thus, while limited, he is still able to continue relationships with people. Although he is no longer employed, a rating of 100 percent is only warranted for both total social and total occupational impairment. The Board concludes the criteria for a 100 percent rating for post-traumatic stress disorder have not been met. 38 C.F.R. § 4.130, Diagnostic Code 9411. His own statements regarding how his post-traumatic stress disorder impacts him, overall, and his characterization of his family relationships, would provide additional evidence against this claim. His statements indicating the problems cited within the 100 percent rating have not been met in this case. While the Veteran is socially limited by his service-connected post-traumatic stress disorder, the evidence preponderates against finding that his impairment is "total" so as to warrant a 100 percent rating. Based on the foregoing discussion, the Board finds that Veteran's posttraumatic stress disorder does not warrant a rating in excess of 70 percent. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Bilateral hearing loss The Veteran's bilateral hearing loss is currently rated 70 percent, since June 16, 2016. The RO raised this rating following a May 2017 VA examination which confirmed an increase in the Veteran's bilateral hearing loss first objectively shown in June 2016 private hearing test results. As that increase did not represent a complete grant of the benefits sought on appeal, the entitlement to an increased initial rating for bilateral hearing loss remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). VA evaluates service-connected hearing loss through the mechanical application of a Veteran's audiometric testing results to a rating table. See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). Evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability due to a hearing loss the provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from Level I for essentially normal acuity to Level XI for profound deafness. Tables VI and VII as set forth in 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. "In light of the plain language of [38 C.F.R.] §§ 4.85 and 4.86, as well as the regulatory history of those sections, the Court holds that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure." Doucette v Shulkin, 28 Vet.App. 366 (2017). After review of the record, the Board finds that entitlement to a rating above 30 percent prior to June 16, 2016 and above 70 percent since, is not warranted for the Veteran's bilateral hearing loss. The Veteran was provided hearing examinations in June 2011, February 2013, and May 2017. The Veteran also submitted a private hearing test from June 2016. June 2011 examination findings show the left year with 88 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) was 45 with a 70 dB loss at 2000 Hz, a 80 dB loss at 3000 Hz, and a 80 dB loss at 4000 Hz. The average dB loss was 69 in the left ear. The right ear showed 4 percent speech discrimination. Decibel (dB) loss at 1000 Hertz (Hz) was 80, with a 80 dB loss at 2000 Hz, a 105 dB loss at 3000 Hz, and a 105 dB loss at 4000 Hz. The average decibel loss is 93 in the right ear. Under Table VI, Roman numeral III is assigned for the left ear, while Table VIa assigns a Roman numeral IX for the right ear based on its puretone threshold average. 38 C.F.R. § 4.85. Additionally 38 C.F.R. § 4.86a applies for the right ear. A 20 percent evaluation was derived from Table VII of 38 CFR 4.85 by intersecting row IV, the better ear, with column IX, the poorer ear. The RO declined to reduce the Veteran's disability rate on only this examination. The Veteran was provided another examination in February 2013 at which time the left ear showed 80 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) was 50, with a 60 dB loss at 2000 Hz, a 80 dB loss at 3000 Hz, and a 95 dB loss at 4000 Hz. The average decibel loss was 71.25 in the left ear. The right ear showed 72 percent speech discrimination. Decibel (dB) loss at 1000 Hertz (Hz) was 70, with a 85 dB loss at 2000 Hz, a 105 dB loss at 3000 Hz, and a 105 dB loss at 4000 Hz. The average decibel loss was 91.25 in the right ear. The provisions of 38 C.F.R. § 4.85 provide a Roman numeral IX for the right ear, and a Roman numeral IV for the left ear, based on its puretone threshold average. 38 C.F.R. § 4.86a applies for the right ear. A 30 percent evaluation was derived from Table VII of 38 CFR 4.85 by intersecting row IV, the better ear, with column IX, the poorer ear. Neither the June 2011 nor the February 2013 hearing examinations demonstrated any objective findings of hearing loss warranting a rating over 30 percent. The first objective indication that the Veteran's hearing had worsened was in June 2016, when he submitted the private hearing test results. This indication of a worsening in the Veteran's hearing in 2016 was confirmed by VA examination in May 2017. The Veteran's 2017 examination reflected the left ear with 64 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) was 60, with a 80 dB loss at 2000 Hz, a 100 dB loss at 3000 Hz, and a 95 dB loss at 4000 Hz. The average decibel loss was 83.75 in the left ear. The right ear showed 0 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) was 110, with a 100 dB loss at 2000 Hz, a 110+ dB loss at 3000 Hz, and a 110+ dB loss at 4000 Hz. The average decibel loss was 107.5 in the right ear. Table VIa under 38 CFR 4.85 provides a Roman numeral XI for the right ear, and a roman numeral VIII for the left ear, based on its puretone threshold average. A 70 percent evaluation was derived from Table VII of 38 CFR 4.85 by intersecting row VIII, the better ear, with column XI, the poorer ear. A rating higher than 30 percent prior to June 16, 2016, and a rating higher than 70 percent since is not warranted as there is no medical evidence to support such a rating. The Veteran's disability must be evaluated on the objective findings demonstrated during audiological examination. Hearing loss involves a mechanical application of the rating schedule to numeric designations assigned to official auditory results. The fact that hearing acuity is less than optimal does not, by itself, establish entitlement to a higher disability rating. A rating greater than those currently granted can be awarded only when loss of hearing has reached a specified measurable level. That level of disability has not been demonstrated in the present case. The Board has carefully reviewed all of the evidence pertinent to this claim, but finds no other probative evidence of record showing that the appellant's hearing loss disability is more severe for compensation purposes than demonstrated on the VA audiological evaluations discussed above. The Board has considered the evidence of record showing that the Veteran has reported difficulty with his hearing while in public or during conversation. This fact alone, however, does not provide sufficient evidence on which to award a higher rating for bilateral hearing loss. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to the specific disability ratings assigned by this decision. For the reasons discussed herein, and applying the benefit of the doubt doctrine, the Board finds that the Veteran's hearing loss does not moire nearly approximate a rating higher than 30 percent disability rating prior to June 16, 2016, or higher than 70 percent since. The claim is denied. ORDER Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder is denied. Entitlement to a rating in excess of 30 percent for bilateral hearing loss, prior to June 16, 2016 and 70 percent since, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs