Citation Nr: 1803641	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  13-31 151A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to March 31, 2014 and in excess of 70 percent thereafter. 

2. Entitlement to service connection to bilateral hearing loss.

3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1968 to November 1977. 

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

The Veteran had a hearing before the undersigned in September 2017; the transcript is of record. 

The Board notes that during the appeal period the Veteran's disability rating for service-connected PTSD was 50 percent effective February 28, 2011. The Veteran's disability rating was temporarily increased to 100 percent effective June 14, 2012 until November 30, 2012 in accordance with 38 C.F.R. § 4.30 (2017). On December 1, 2012 the Veteran's disability rating returned to 50 percent and then was increased to 70 percent effective March 31, 2014.


FINDINGS OF FACT

1. Prior to June 14, 2012, PTSD was manifested by symptoms productive of no more than occupational and social impairment with reduced reliability and productivity. 

2. From December 1, 2012, PTSD was manifested by symptoms productive of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood.  

3. It is in at least equipoise that the Veteran's bilateral hearing loss had its onset in service. 

4. From September 22, 2014, the Veteran was precluded from securing and maintaining a substantially gainful occupation.


CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 50 percent for PTSD prior to June 14 14, 2012, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).

2.  The criteria for a rating of 70 percent for PTSD from December 1, 2012 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).

3. The criteria for a rating in excess of 70 percent for PTSD from March 31, 2014 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).

3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017).

4. From September 22, 2014, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.16 (a) (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty Notify and Assist

With respect to the Veteran's claims 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Increased Rating

Disability ratings 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. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require reevaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

The Veteran's PTSD is rated under Diagnostic Code (DC) 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies:

A 50 percent rating is warranted 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 frequently 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.

A 70 rating is warranted when there is 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 worklike setting); and an 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; and memory loss for names of close relatives, own occupation, or own name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013).

The global assessment of functioning (GAF) scale is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994 (DSM-4)).  GAF scores ranging between 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores between 51 to 60 are indicative of 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). GAF scores between 41 to 50 reflect 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).

The Board notes that the newer Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) has been released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. However, since much of the evidence relevant to this claim was obtained during the time period that the DSM-IV was in effect, and the DSM-5 is not applicable to claims (such as the instant claim) certified to the Board before August 14, 2014, the Board will still consider the assigned GAF scores as relevant to this appeal.


III. Increased Rating Prior to March 31, 2014

The Veteran's VA mental health treatment records between February 2011 and June 2012 indicate that the Veteran had chronic and severe PTSD. Treatment records indicate that Veteran had a depressed mood, marital troubles, and consistent use of medication for PTSD. The records also note that the Veteran did not suffer from suicidal ideations. The Veteran consistently reported symptoms of insomnia, intrusive thoughts of combat, nightmares, flashbacks, intense anger and irritation, hypervigilance, some paranoia, and emotional instability. 

In May 2012, the Veteran was screened for the Domiciliary Residential Rehabilitation Treatment Program (DRRTP) dual diagnosis treatment program. The Veteran stated his greatest strength was that that he worked well with people. He stated that he had depression, sleep, energy, controlling anger, and relationship problems. The Veteran stated that he felt hopelessness about the present and the future, but the social worker did not require a further assessment or intervention for suicide. 

As noted above, the Veteran's disability rating was increased from 50 percent to 100 percent temporarily between June 2012 and November 2012 while he was in the DRRTP Program. In the Veteran's discharge mental health examination in October 2012, a psychologist noted that the Veteran's appearance was appropriate with excellent grooming and hygiene. The Veteran was oriented to self, place, time and the situation. The Veteran had a positive mood with lucid thoughts that were fluid without anacoluthia. The Veteran had no evidence of psychosis and had normal judgement. The Veteran had very good insight. He denied thought or intent to harm himself or others. The psychologist's impression was that the Veteran was not a danger to himself or others and had not been so throughout his admission to the program.

From November 2012 until March 2014 treatment records indicate that the Veteran continued to seek treatment for PTSD symptoms. The Veteran continued to have depression and PTSD symptoms of difficulty sleeping, hypervigilance, traumatic memories, guilt issues and marital issues. VA treatment records also indicate that the Veteran suffered from substance abuse and gambling issues. The Veteran did not have suicidal ideations except for in November 2013 when he stated that he suffered from generalized suicidal ideations without a plan. Records indicate that the Veteran had GAF scores between 50 and 65. 

In April 2011, the Veteran underwent a VA mental health examination. The examiner found that the Veteran had been married seven times and was currently separated. The examiner noted that the Veteran had several social relationships, participating in activities and leisure pursuits such as golf, and had no history of suicide. The examiner found that the Veteran's psychosocial function status was impaired. The examiner found the Veteran had a clean general appearance, his speech was clear, he was cooperative, friendly and relaxed, had a normal affect, a good mood, his attention was intact, had intact orientation, his thought process and content was unremarkable, had no delusions, and understood the outcomes of behavior. The examiner noted that the Veteran only received three and half hours of sleep which interfered with his daytime activities. The Veteran had no homicidal or suicidal thoughts. The examiner found that the Veteran had symptoms of recurrent and intrusive distressing recollections of the stressor event including images, thoughts, or perceptions and recurrent dreams of the event. The examiner found that the Veteran made efforts to avoid thoughts, feelings, or conversation associated with the trauma. He also made efforts to avoid activities, places, or people that aroused recollections of the trauma. The Veteran had a markedly diminished interest in participation in significant activity and feelings of detachment or estrangement from others. The examiner noted that the symptoms were frequent, chronic, daily and moderate. The examiner stated that the Veteran had a GAF score of 60. The examiner opined that the Veteran had moderate impairment in functional status and quality of life due to his PTSD. The examiner further opined that the Veteran had reduced reliability and productivity due to his PTSD symptoms of his avoidance behavior, hypervigilance, sleep disturbances, and intrusive thoughts and recollections. The examiner did not find signs and symptoms that resulted in deficiencies in judgment thinking, family relations, mood, work, or school. 

In April 2011, the Veteran's spouse stated that the Veteran's issues had worsened since their marriage. She stated that the Veteran was very depressed or agitated, which results erratic behavior. She stated that the Veteran felt that everyone was against him and that he did not trust his family, friends, or anyone else. She noticed that he had trouble sleeping. She stated that he would become so depressed that he would sit in a room without lights without any personal hygiene for two to three days. She stated that he drank and gambled more. She stated he shut down and did not want to share with anyone. She stated the Veteran became very angry and was emotionally abusive. 

In August 2011, the Veteran stated that his symptoms of PTSD warranted a higher rating. He stated he had mood swings, night sweats, panic attacks, trust issues, irritability, and marital issues. He stated he was a miserable person and he could not deal with himself. 

In November 2013, the Veteran stated that he had bouts of depression and anxiety. The Veteran noted that he had been homeless for two years. He stated that he had a gambling addiction. The Veteran stated he isolated himself from everyone and he had a problem with authority figures. 

The Veteran testified at a Board hearing in September 2017. The Veteran stated that he had anxiety. He testified he had sweaty palms and was unable to negotiate certain things. He noted he would not drive at night. During the hearing the Veteran was clenching his fists and became visibly uncomfortable talking about his anxiety. The Veteran testified as to the issues he had with his boss about the direction of his job, which exacerbated his anxiety. The Veteran stated that he had episodes of anger at work. The Veteran stated his anxiety and anger caused relationship problems. The Veteran stated he was married seven times. The Veteran stated that he went through bouts of depression and that he was hypervigilant all the time. The Veteran stated that in the past he considered hurting himself. The Veteran stated that he had difficulty sleeping. He stated that he did not have nightmares because he slept so little. The Veteran stated he had difficulties going out to eat and doing activities with his wife that caused his PTSD to trigger. The Veteran stated he would constantly check locks all the time especially during the day. The Veteran stated that his PTSD symptoms had steadily worsened. 

The Board finds that next higher rating, 70 percent, is warranted, beginning in December 1, 2012, after the Veteran left the DRRTP Program. The Veteran had increased symptoms of depression difficulty sleeping, hypervigilance, irritability traumatic memories, guilt issues and marital issues. The Veteran indicated that he had generalized suicidal thoughts in November 2013. The Veteran testified that his symptoms had steadily have worsened. Finally, the Veteran's GAF scores fluctuated between 50 and 65 indicating that the Veteran's symptoms were at worst serious which resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. Therefore, the 70 percent disability rating for the Veteran's service-connected PTSD is appropriate from December 1, 2012.  

However, prior to entering the DRRTP program the Veteran's symptoms do not arise to such frequency, duration, or severity to result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The April 2011 VA examiner found the Veteran's PTSD symptoms only caused reduced reliability and productivity. The Veteran had consistent negative suicide screens. Finally, the Veteran stated that his greatest strength was working with other people. Thus, the Board finds that prior to June 14, 2012 the Veteran is not entitled to a disability rating of 70 percent. 

IV. Increased Rating From March 31, 2014

In March 2014, the Veteran underwent a VA mental health examination. The examiner added additional diagnosis of major depressive disorder that was indistinguishable from the Veteran's PTSD. The examiner found that the Veteran's mental health disorders were coexistent and appeared to significantly impact the ability to implement or follow through on necessary skills to maintain employment or healthy interpersonal interactions.  The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood.

In May 2017, the Veteran underwent another VA examination. The examiner noted that the Veteran had not sought mental health treatment since 2014. The Veteran reported that he had a feeling of anxiety, isolations from others, difficulty sleeping, and depressed mood. The Veteran reported that he had a good relationship with his children. The examiner found that the Veteran's mental health symptoms would impair his occupational abilities of remembering and following complex instructions, concentrating on tasks, and interacting with supervisors. The examiner found that the Veteran had adequate level of grooming and hygiene. The Veteran had good eye contact, a nervous mood and sweaty palms. He had normal speech, was oriented to person, place, time, and circumstances. The examiner noted that the Veteran had no evidence of thought disturbance and he had denied any active suicide or homicidal ideation. The Veteran had no unusual perceptual experiences. The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 

In August 2017, the Veteran's current wife submitted a statement. She stated that after eight months they were getting a divorce. She stated that he had severe mood swings and was difficult to live with. She stated the Veteran had difficulty understanding simple things, and he was extremely argumentative. She stated he had temper tantrums and that she was afraid he would become violent. She stated the Veteran was very forgetful, and at times his personal hygiene was not the best in that she oftentimes had to remind him brush his teeth, bathe, and clean his bathroom. 

The Board finds that for the entire period on appeal the preponderance of the evidence is against a finding that the Veteran's symptoms more nearly approximate the criteria for a 100 percent disability rating. The criteria for a 100 percent disability rating requires a 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130.

The record does not reflect both total occupational and social impairment. While the Veteran's symptoms are severe they do not rise to total social and occupational impairment. The Veteran stated he had a great relationship with his children, children, Further the March 2014 and May 2017 examinations both noted that the Veteran had occupational and social impairment, with deficiencies in most areas, not total occupational and social impairment. Considering the Veteran is able to maintain close relationships in his children the Board finds that Veteran's symptoms do not cause total social and occupational impairment. Therefore, Board finds that 100 percent disability rating throughout the entire appeal period is not warranted. 

V. Extraschedular Consideration

The Board has further considered whether the increased rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. Where, as here, those criteria are not inadequate, the analysis does not need to proceed any further.

In this case, the Board does not find that the Veteran's PTSD has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extraschedular basis. The symptoms of his disability, including the severity, frequency, and duration, have been accurately reflected by the schedular criteria. As indicated, the symptoms listed in the general rating formula for mental disorders are not inclusive of all symptoms that a Veteran might manifest, and are not intended to constitute an exhaustive list. Without sufficient evidence demonstrating that the Veteran's disability picture is not contemplated by the rating schedule, referral is not warranted for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating. See Thun, 22 Vet. App. at 115-16 (2008).

In summary, the preponderance of the evidence of record is against a rating for the service-connected PTSD in excess of 50 percent prior to June 14, 2012, and in excess of 70 percent from December 1, 2012. Resolving reasonable doubt in favor of the Veteran, for the period from December 1, 2012 to March 31, 2014 the criteria have been met for a rating of 70 percent for his service-connected PTSD. See 38 U.S.C. § 5107; 38 C.F.R. § § 4.3, 4.7.

VI. Service Connection for Hearing Loss

In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2011). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these 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).

Section 3.385 of Title 38, Code of Federal Regulations does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157.

In addition, certain chronic diseases, including sensorineural hearing loss, are presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

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); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

The Veteran's service treatment records are negative for any complaints, treatment, or diagnoses related to hearing loss. The Veteran underwent a service examination in October 1974. Puretone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
NR
5
LEFT
5
5
5
NR
0

The Board notes that the Veteran did not undergo a separation examination which tested his hearing. 

In June 2012, the Veteran underwent a VA audiological examination. The VA audiologist used an audiology of record performed in October 2011.  The Veteran's puretone thresholds, in decibels were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
30
40
40
LEFT
25
25
40
45
35

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The examiner diagnosed the Veteran with sensorineural hearing loss in the left and right ear. The examiner could not opine to the etiology to the Veteran's hearing loss without resorting speculation. The examiner reasoned that the Veteran had normal hearing bilaterally in his induction examination, but there was no separation physical hearing test available for review. He noted that any attempt to determine if hearing loss is a result of military noise exposure would be a resort to mere speculation.  

In June 2012, the Veteran stated that he worked with ammunition and breaking ammunition down. The Veteran stated he believed those activities are what caused his hearing loss. 

In June 2012, a fellow serviceman stated that while in Vietnam he was exposed to loud noises in service. The serviceman stated that since he met the Veteran after service, he notice the Veteran had difficulty hearing. The serviceman stated he believed the Veteran's military career contributed to his hearing loss because his other jobs did not include excessive loud and constant noises. 

In September 2017, the Veteran's aunt provided a statement. She stated that the when the Veteran returned home from Vietnam she noticed his hearing was impaired. The Veteran's aunt stated that she would have to repeat herself in order for the Veteran to hear her. 

In September 2017, the Veteran testified at a Board hearing. The Veteran stated that his military occupational specialty (MOS) was an ammunition and mortar specialist. The Veteran stated that he worked in Vietnam in the ammunition depot where he would re-stencil and re-cast ammunition. The Veteran stated his job was to bust primer caps all day. He stated he essentially blew up ammunition all day without ear protection. He stated he was involved in a mortar attack.  He stated that he sought cover but the sound was extremely loud and he briefly lost his hearing. The Veteran described the sound as deafening.  The Veteran also stated he fired different weapons and exposed to gun fire. The Veteran further testified that he was in the ammunition depot for almost ten years. The Veteran stated he did not realize how bad his hearing was until 2012 when he was diagnosed with hearing loss and was surprised how much hearing aids helped him hear. He did note that people told him they noticed he could not hear them speaking or would comment on the loud television volume. The Veteran stated he did not work in an environment with noises comparable to the noise level while he was in service.   

The Board finds that the Veteran, the fellow serviceman, and the Veteran's aunt are competent and credible to describe the Veteran's symptoms of hearing loss. However, the Veteran and the Veteran's serviceman are not competent to determine the etiology of the Veteran's hearing loss to noises in-service.

The Board finds that the Veteran was exposed to hazardous noise exposure in service. According to the Veteran's DD-214 the Veteran's specialized in ammo inspection and a magazine keeper while in-service. The Board finds that Veteran's statement that he worked with ammunition and his job included hazardous noise competent and credible. Therefore, the Board finds that the Veteran was exposed to hazardous noise levels. 

The Board finds that the Veteran currently has hearing loss. The Board finds that the Veteran was exposed to hazardous noise in service. Regarding the third element of nexus, the Board notes that the VA examiner was unable to provide an etiological opinion for the Veteran's hearing loss. The Veteran was unaware he had hearing loss until he received hearing aids. Therefore, the most probative evidence comes from the Veteran's aunt. Her statement that she noticed the Veteran had difficulty hearing and had to repeat himself when the Veteran returned from service was persuasive. The Board finds this lay statement along with the Veteran's statement that he was not exposed to excessive noise after service, and the lack of audiology testing on separation are persuasive evidence in support of the Veteran's claim. Therefore, the Board finds relative equipoise that the Veteran's hearing loss is associated with his military service. The benefit of the doubt rule is in operation and the claim of service connection for hearing loss is granted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).

VII. TDIU

Entitlement to TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Having determined a 70 percent rating for the Veteran's PTSD based in part on the Veteran's occupational impairment during this period and that the Veteran was unemployed during that time, the Board further finds this evidence as outlined above sufficient to warrant entitlement to TDIU although there is some inconsistent evidence as to when the Veteran was last gainfully employed. In this regard, the Veteran has reported that he has completed high school and that he has completed about two years of college courses. The Veteran has indicated that the last time he was employed fulltime was with Job Corps in August 2013. On a VA Form 21-8940, dated in April 2017, the Veteran reported that he had last worked in August 2013 as a resident advisor; that he worked 36 hours per week, and that he earned $1600 per month although he also reported that he had last worked fulltime in June 2012.  However, VA examination dated in March 2014 indicates that the Veteran was employed at a homeless shelter for veterans from September 2013 through February 2014 but was let go because of lack of finances. Further, on subsequent development by the AOJ, a VA Form 21-4191 was received dated in August 2017 in which the Job Corps Center indicated that the Veteran had been employed as a substitute residential advisor from April 2014 to March 2015 working 40 hours per week although on an as needed basis. He had last worked in September 22, 2014 and had earned $12,057.  Thus, the Board finds that the Veteran is entitled to a TDIU from September 22, 2014, the date he was last gainfully employed.  

ORDER


For the period prior to June 14, 2012, a rating for service-connected PTSD in excess of 50 percent is denied.

For the period on appeal from December 1, 2012, a rating for PTSD of 70 percent is granted, subject to the law and regulations governing the payment of monetary benefits. 

For the period on appeal from March 31, 2014, a rating for service-connected PTSD in excess of 70 percent is denied.

Service connection for bilateral hearing loss is granted.

For the period on appeal from September 22, 2014, a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits.  




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs