Citation Nr: 18143590 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-27 271 DATE: October 19, 2018 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 40 percent for right impaired hearing to include left ear hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss has been manifested by no worse than Level V hearing impairment in the left ear and Level XI in the right ear. 2. The Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: stereotyped speech; panic attacks more than once a week; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 3. The Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for hearing loss, have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.150, 3.321, 3.385, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.7, Diagnostic Code 9411. 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1962 to May 1965, from November 1966 to July 1970, and from May 1975 to August 1978. Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the April 2017 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran allowed a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an adequate examination for the claims. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. The rating of a service-connected disability requires a review of the entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. However, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). The Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran’s service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, and the entire history of the disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an increased rating for bilateral hearing loss. The Veteran asserts that his hearing loss is worse than compensated by the current 40 percent rating. The Veteran was provided VA audiology examinations for hearing loss. A review of the results of those examinations, and other relevant evidence of record show that the Veteran’s hearing loss, at worst, did not meet the criteria for a rating in excess of 40 percent. Therefore, the claim for a higher rating for hearing loss must be denied. In rating service-connected hearing loss, disability ratings are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings of bilateral hearing loss range from 0 percent to 100 percent based on impairment of hearing acuity. To rate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII . Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85 (a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based upon a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns), which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85, DC 6100. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Table VII is used to determine the percentage rating 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. The percentage rating is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). At an April 2014 VA audiology examination, the puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 45 60 60 65 57.5 The average puretone threshold decibel loss was excess of 105 in the right ear and 57.5 in the left ear. Speech audiometry (Maryland CNC) found speech recognition ability of 76 percent in the left ear, and no measurable for the right ear. Applying the findings of the April 2014 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a higher than 40 percent rating for bilateral hearing loss were not met. The Veteran’s hearing acuity was measured using 38 C.F.R. § 4.85, Table VI. 38 C.F.R. § 4.86 (a). Under Table VI, the right ear hearing acuity was manifested by level XI impairment, and the left ear was manifested by a hearing acuity of no more than level IV impairment. Applying those findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in an only 30 percent rating for bilateral hearing loss. The Veteran’s hearing was again examined at a March 2017 VA audiological examination, the puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 45 60 60 65 57.5 The average puretone threshold decibel loss for this latter examination was identical to those of the earlier April 2014 examination, with 105 in the right ear and 57.5 in the left ear. Speech audiometry (Maryland CNC) found speech recognition ability of no possible in the right ear and of 72 percent in the left ear. Applying the findings of the March 2017 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a higher than 40 percent rating for bilateral hearing loss were not met. The Veteran’s hearing acuity was measured using 38 C.F.R. § 4.85, Table VI. 38 C.F.R. § 4.86 (a). Under Table VI, the right ear hearing acuity was manifested by level XI impairment, and the left ear was manifested by a hearing acuity of no more than level V impairment. Applying those findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 40 percent rating for bilateral hearing loss. The results found during the March 2017 examination represent the only objective audiological testing of the Veteran’s hearing acuity available of record for the relevant period. However, the results from that examination remain below the criteria required for a rating in excess of 40 percent. 38 C.F.R. §§ 4.85, Table VII. Therefore, a rating greater than 40 percent is not warranted during the time period under review. 38 C.F.R. § 4.85(f). The Board finds that the probative evidence does not show a more severe hearing loss disability than is currently contemplated by the 40 percent rating. The Board has considered the Veteran’s statements regarding the severity of his bilateral hearing loss. The Board acknowledges that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of a disability or symptoms of a disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the clinical findings reported on examination are more probative than the Veteran’s statements as he is not shown to have the requisite education, experience, and training to determine the severity level of service-connected bilateral hearing loss as it applies to the rating schedule. Smith v. Derwinski, 1 Vet. App. 235 (1991). The Board finds the VA examination most probative in establishing the specific level of hearing loss in light of the rating schedule, which is determined by objective levels of hearing acuity. Therefore, considering the Veteran’s subjective report, and weighing the probative medical evidence, the Board finds that the preponderance of the relevant evidence remains against the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent, and that claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 50 percent for PTSD. The Veteran’s service-connected PTSD has been rated under the provisions of Diagnostic Code 9411. Under that Diagnostic Code a 50 percent is warranted if the Veteran experiences 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 100 percent rating is warranted for a mental disorder when there is 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 symptoms listed in VA’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to 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 (2002). Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). For the entire claims period, the Veteran’s PTSD has been assigned a 50 percent rating. The Veteran, through his representative, asserts that his condition, however, is worse than that contemplated by the 50 percent rating. The Veteran was provided VA examinations in April 2014 and April 2017. In the April 2014 VA examination, the examiner, after reviewing the Veteran’s medical history and conducting an in-person interview, ultimately concluded that the Veteran’s PTSD manifestations only amounted to occupational and social impairment with 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. Specifically, the examiner noted that the Veteran’s PTSD only manifested to symptoms of depressed mood, sleep impairment, lack of motivation, detachment, avoidance, and problems with concentration. At the time of the examination, the examiner noted that the Veteran had expressed issues with motivation and irritability. The Veteran asserted that he did not maintain his personal hygiene and often did not shower for days, and that he was very irritable towards others. He expressed some interests and hobbies, but issues with memory. However, the examiner found that the Veteran was on time for his interview, oriented, and dressed appropriately, with no distress and neutral mood. The examiner noted the Veteran made appropriate eye contact, was cooperative, with normal speech, and had thought patterns and expressions that were expansive and boastful. Finally, the examiner noted no visible issues with his personal hygiene or grooming. In the April 2017 VA examination report, the examiner, again found that the Veteran’s PTSD manifestations only amounted to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning. The report, like the prior examination, noted a comprehensive review of the Veteran’s medical history and in-person interview. The VA examiner ultimately noted that the Veteran’s PTSD manifested with similar symptoms as his prior examinations, with symptoms such as of depressed mood, anxiety, sleep impairment, hypervigilance, mild memory loss, lack of motivation, detachment, avoidance, and difficulty establishing and maintaining effective work and social relationships. At the time of the examination, the examiner noted that the Veteran had expressed issues with motivation and irritability, with some homicidal thoughts and ideations, although without any plans. The Veteran was noted stating that he had some thoughts of hurting people who “pissed him off.” The Veteran noted some difficulty in this marriage and social relationships. He also asserted some hypervigilance, especially at night, when he walked around with his pistol to check around the house. However, generally, the Veteran was noted to be fairly moderate in mood, and only noted some anxiety, but no panic attacks. He noted some interests and hobbies such as the crossword puzzles, and denied any suicidal ideation. The Veteran again was noted to be oriented, and dressed appropriately, with no distress and neutral mood. The examiner noted the Veteran made appropriate eye contact, was cooperative, with normal speech, with no visible issues with his personal hygiene or grooming. In order to warrant a rating in excess of 50 percent, the a mental disorder must be manifested by occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. The Board notes that the Veteran is involved in group/individual therapy for PTSD. While there is some indication that his manifestations of irritation and anger may take a toll on his social relationships, the Veteran remains married and his relationship to his wife and family is good, as noted in both examinations. Further, at the examinations, the Veteran was noted to be articulate, verbal, and generally cooperative. His thought process was logical, coherent, and relevant. Reasoning and judgment were fair. His affect was somewhat irritable; and he complained of some declining concentration and short-term memory; but stated that he is still able to function. Although the Veteran noted he did not shower sometime for several days, there is no evidence that the Veteran would not be able to maintain personal hygiene, and he was fully oriented during the examinations. The neglect of personal hygiene is not enough to show deficiencies in most areas as required for the assigment of a higher rating. The Board finds that the Veteran endorses few of the symptoms enumerated under the criteria for an increased rating, and that his overall disability picture does not more nearly approximate deficiencies in most areas. While there is evidence of irritation, depression, and anxiety, the Veteran seems to be able to maintain effective social relationships with his familial relationships. Under the diagnostic code, a 70 percent rating required the Veteran’s condition to amount to impairments in most areas such as work, family relationships, judgement, thinking and mood. While the Board finds that the Veteran may fulfill one or two of those factors for the criteria, that cannot be considered sufficient to warrant a higher rating. The evidence does not show deficiencies in family relationships, judgment, or thinking. In addition, the evidence does not show total social and occupational impairment due to the mental disorder as required for a 100 percent rating. The Veteran maintains a relationship with a spouse. Consequently, the Board finds that his disability is most appropriately rated at 50 percent, and that a preponderance of the evidence is against the assignment of any higher rating. As the preponderance of the evidence is against this claim, the claim for a rating in excess of 50 percent for PTSD, for the relevant period must be denied. Gilbert v. Derwinski, 1 Vet. App 49 (1990). 3. Entitlement to TDIU TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by disabilities that are not service connected. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. The critical inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). If there is only one service-connected disability, it must be rated 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran meets the percentage requirement for consideration for TDIU. 38 C.F.R. § 4.16(a) (2017). The Board finds that the evidence of record is at least evenly balanced as to whether the Veteran is precluded from obtaining and maintaining a substantially gainful occupation consistent with his education and work experience as a result of the service-connected disabilities. The Veteran has been out of work for the duration of the claim, and is currently unemployed. As the Veteran has a rating of 50 percent for PTSD, and a combined disability rating of 90 percent, he meets the percentage requirement for the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). The Veterans has also established service connection for bilateral hearing loss, arthritis of the neck and left knee, cholecystectomy, malaria, tinnitus, a jaw condition, lung laceration, and impairment of the right upper extremity. The Board finds that the evidence of record supports a finding that the Veteran is precluded from obtaining and maintaining a substantially gainful occupation consistent with his education and work experience as a result of his service-connected disabilities. The Veteran, through his representative, has asserted that, although he retired, he could no longer work due to the service-connected disabilities, to specifically include PTSD. That claim is corroborated by a November 2015 Vocational Assessment completed by a vocational expert, W. C. In reviewing the Veteran’s vocational capabilities, W. C., concluded that the combined effects of the Veteran’s physical and psychological disabilities prevented the Veteran from obtaining and/or sustaining gainful employment. The Board finds that the vocational expert conducted an extensive and comprehensive survey of not only the Veteran’s medical history and occupational history, but also a in depth analysis of the actual vocational effects of the service-connected disabilities. W. C. further provided rationale with regard to how a vocational assessment is far superior in analyzing a veteran’s ability to work, than that of the functional impairment statements in each particular VA examination. The examiner noted that while all VA examinations related to the Veteran’s service-connected disabilities demonstrated functional impairment that would not affect the Veteran from obtaining sedentary positions, which the Veteran is qualified to obtain, a review of the Veteran’s combined disability picture as a whole, to include PTSD, showed that option was less likely available to the Veteran. Consequently, the Board finds that the private vocational assessment with regard to the Veteran’s combined service-connected disabilities to be persuasive. The Board has evaluated the Veteran’s work experience, training, and service-connected disabilities and finds that it is at least as likely as not that his service-connected mental disorder, hearing loss, and other physical disabilities, make him unable to secure or follow a substantially gainful occupation. Therefore, entitlement to TDIU is warranted, and the claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel