Citation Nr: 18145548 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 10-12 380 DATE: October 29, 2018 ORDER 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. 2. Entitlement to increases in the (0 percent prior to January 10, 2011 and 10 percent from that date through November 11, 2012) ratings for bilateral hearing loss is denied; a 40 percent rating is granted effective November 12, 2012 to March 8, 2017 (subject to regulations governing payment of monetary awards). REMANDED 3. Entitlement to a rating in excess of 40 percent for bilateral hearing loss from March 8, 2017 is remanded. FINDINGS OF FACT 1. The Veteran's PTSD is not shown to be productive of total social and occupational impairment. 2. Prior to January 10, 2011, the Veteran’s hearing acuity was shown to be Level I in each ear; from that date through November 11, 2012, he is shown to have had Level II hearing in the right ear and Level VI hearing in the left; from November 12, 2012, he is shown to have Level VI hearing in the right ear and Level VIII hearing in the left. CONCLUSIONS OF LAW 1. A rating in excess of 70 percent for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (Code) 9411. 2. A compensable rating prior to January 10, 2011 and a rating in excess of 10 percent from January 10, 2011 through November 11, 2012 are not warranted for bilateral hearing loss; a 40 percent rating is warranted from November 12, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86 Code 6100 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1968 to April 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision that granted service connection for PTSD, rated 30 percent and for bilateral hearing loss, rated 0 percent, each effective October 2008. An April 2012 Board decision increased the rating for PTSD to 50 percent, and remanded for development the matters of entitlement to a rating in excess of 50 percent for PTSD, and regarding the rating for bilateral hearing loss. A March 2017 rating decision increased the rating for hearing loss to 10 percent, effective January 10, 2011. In January 2018, the Board again remanded the matters. An April 2018 rating decision increased the rating for bilateral hearing loss to 20 percent, effective March 12, 2018. A September 2018 rating decision increased the rating for PTSD to 70 percent, effective October 24, 2008, and granted a total rating based on individual unemployability due to service-connected disability (TDIU), effective April 1, 2011. In December 2008 the Veteran was seen by a private psychologist. Mental status evaluation found that he was neatly groomed. He stated that he was not able to express his thoughts very well. He answered questions appropriately and presented his thoughts in an understandable and relevant manner. His train of thought was without disturbances of logic or bizarreness. He had difficulty describing his mood. He was easily agitated and endorsed some items that were consistent with anxiety. His mental content consisted of unhappiness, depression and a lack of joy in his life. There were no obvious indications of psychotic distortions, including ideas of reference or hallucinations. He denied suicidal ideation, and was alert and well oriented. The diagnoses were PTSD, severe and major depressive disorder, mild. The Global Assessment of Functioning (GAF) score was 53. The examiner stated that the Veteran had difficulty in occupational functioning, had limited leisure and social outlets and difficulty handling stress. On February 2009 VA psychiatric examination the Veteran stated that he had nightmares at least twice a week, startled easily, and avoided crowds. It was noted that he had been married for 38 years and was fairly close to his wife and had a good relationship with his adult children. He reported that he missed about 5-10 days a year due to mental health related issues. Mental status evaluation found that he was alert and well groomed. He exhibited good eye contact. There was no significant psychomotor agitation or retardation. His thought processes varied from logical to circumstantial. He denied suicidal or homicidal ideation. He had no psychotic symptoms. His mood was described as depressed at times; his affect was generally restricted. There were no obvious deficits in his memory or concentration. Insight and judgment were fairly good. The diagnoses were PTSD and dysthymic disorder. The GAF score was 50. The examiner noted that the Veteran remained hypervigilant, was detached from others, and had chronic problems with anger. He stated that PTSD had a very significant impact upon the Veteran socially and had affected his marriage and relationship with his children. Audiometry on March 2009 VA examination found that right ear puretone thresholds in decibels were 25, 55, 60 and 60 at 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. Left ear puretone thresholds at corresponding frequencies were 20, 60, 70 and 75 decibels, respectively; average puretone thresholds were 50 decibels in the right ear and 56 in the left. Speech recognition ability was 98 percent in the right ear and 94 percent in the left. It was noted that the Veteran had a bilateral SNHL which had a significant effect on his occupation with poor social interactions due to his hearing difficulty. In April 2010 the Veteran was examined by another private psychologist. He reported having a depressed mood and that he had lost interest in “anything and everything.” It was noted that he had been employed for the previous 27 years, but that he was outspoken at work when he disagreed with management. He appeared to have no difficulty handling the stresses and demands of his job. He had never been suspended. On mental status evaluation, the Veteran had good grooming and hygiene. He initially appeared to be very angry, but his mannerisms and expressions were appropriate once rapport was established. The Veteran described his mood as stoic and his affect appeared constricted. There was no evidence of disturbance in thought content. He denied hallucinations, and delusions were not noted. He was oriented in the four spheres, and his insight and judgment were satisfactory. He denied suicidal or homicidal ideation. The diagnoses were PTSD, major depressive disorder, severe, without psychotic features, dysthymic disorder and panic disorder without agoraphobia. The GAF score was 40. Audiometry on January 10, 2011 VA examination found that right ear puretone thresholds in decibels were 30, 60, 65 and 65 at 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. Left ear puretone thresholds at corresponding frequencies were 30, 70, 75 and 85 decibels, respectively. The average puretone thresholds were 55 decibels in the right ear and 65 in the left. Speech recognition ability was 84 percent in the right ear and 88 percent in the left. It was noted that the bilateral hearing loss had a significant effect on his occupation with poor social interactions due to his hearing difficulty. On January 2011 VA psychiatric examination the Veteran stated that he felt irritable daily and had poor tolerance for frustration. He noted that he became angry with little provocation. Mental status evaluation found that he was neatly groomed and appropriately dressed. He was cooperative and irritable. His affect was constricted and his mood depressed. He was easily distracted. He was oriented times three. Thought content was unremarkable and he had no delusions. He had chronic sleep disturbances and woke up several times each night. He had nightmares about once a week, and more if he was stressed. There were no hallucinations or inappropriate behavior. He did not have panic attacks. There was no suicidal or homicidal ideation. He had fair impulse control. He reported verbal confrontations with others. He was able to maintain minimum personal hygiene. Memory was normal. He reported irritability, low tolerance for frustration, concentration problems, and social isolation. He had lost five weeks of work in the previous year due to PTSD and physical problems. He noted he had difficulty relating to others. The diagnoses were PTSD and dysthymic disorder. The GAF score was 48. The examiner stated that he had serious symptoms including depression, irritability, sleep problems, distrust of others and an intense feeling of survival guilt. She also stated that increased irritability and mood fluctuations made it difficult for him to function effectively at work in relating to others. He was socially isolated and had no friends or leisure pursuits. VA outpatient treatment records show that in February 2010 the Veteran stated that he was more irritable and agitated with poor impulse control. Mental status evaluation found that he was neat in appearance. His affect was reactive and his mood dysphoric. There was no suicidal or homicidal ideation or overt psychosis. He was oriented to time, place and person, and his insight and judgment were fair. The diagnoses were PTSD and dysthymia. In August 2010, he stated that he was functioning better at work with medication. Mental status evaluation showed that his affect was restricted and his mood was less depressed. He had sleep disturbance with nightmares. There was no suicidal or homicidal ideation. The diagnoses were PTSD and dysthymia. In May 2011, mental status evaluation found that his affect was guarded and his mood dysphoric. There was no evidence of psychosis. His cognition was grossly intact. In September 2011 the Veteran stated that he had retired in March 2011 because he could no longer tolerate working with people who, in his opinion, did not want to work. Mental status evaluation found that he was grossly alert and oriented. His affect was tense and guarded and his mood dysphoric. His thought content was absent of suicidal and homicidal ideation. There was no evidence of delusional thoughts or perceptual disturbances. Insight and judgment were adequate. The assessment was PTSD, severe, and the GAF score was 50. In February 2012, he was grossly alert and oriented. His affect was guarded, stoic and his mood dysphoric. There was no suicidal or homicidal ideation or evidence or delusional thoughts or perceptual disturbances; his insight and judgment were adequate. In September 2012, he reported a general distrust of VA, and said he had nightmares periodically. Mental status evaluation found that his affect was angry and his mood dysphoric. The remaining findings were similar to those in February 2012. The assessment was PTSD, severe, and the GAF score was 45. Audiometry on November 12, 2012 examination on behalf of VA found that right ear puretone thresholds in decibels were 55, 75, 80 and 85 at 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. Left ear puretone thresholds at corresponding frequencies were 60, 80, 95 and 100 decibels, respectively. The average puretone thresholds were 74 decibels in the right ear and 84 in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 68 percent in the left. On January 2013 VA psychiatric examination the Veteran stated that he would like to go back to work but did not have tolerance for people who do not do their fair share. He noted that his wife kept him functioning. His symptoms included depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood and motivation and difficulty in adapting to stressful circumstances, including work or a work-like setting. He did not have anxiety, panic attacks, impaired judgment, gross impairment in thought process or communication, suicidal ideation, obsessional rituals, impaired impulse control, delusions or hallucinations, neglect of personal appearance and hygiene or disorientation to time or place. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. He stated that the Veteran's functional impairment was moderate based on his vocational history and current daily activities. Audiometry [for treatment purposes] at a VA facility in November 2013 found that right ear puretone thresholds in decibels were 35, 65, 65 and 75 at 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. Left ear puretone thresholds at corresponding frequencies were 40, 75, 80 and 80 decibels, respectively. The average puretone thresholds were 60 decibels in the right ear and 69 in the left. Speech audiometry was conducted not using the Maryland CNC test. VA outpatient treatment records show that when the Veteran was seen throughout 2013, 2014 and 2015, his affect was stoic and his mood was dysphoric. There was no suicidal or homicidal ideation or evidence of delusional thoughts or perceptual disturbances. His insight and judgment were adequate. On March 2017 VA psychiatric examination the Veteran described his relationship with his wife as “up and down.” He did not have any friends or engage in social activities. He described his mood as “very stoic” and said that he gets aggravated at times. He reported disrupted sleep. His symptoms included depressed mood, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner noted the Veteran was oriented to person, place, time and situation. His grooming and hygiene were adequate. He presented with a depressed mood and congruent affect. He became tearful on occasion when discussing experiences in Vietnam. His thoughts were logical, linear and goal-directed. He denied suicidal or homicidal ideation, and did not demonstrate any perceptual disturbances, including audio or visual hallucinations. He reported increased difficulty concentrating on tasks. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity; she observed that he experiences a depressed and irritable mood most of the time. He preferred to be alone, avoided social events, and had limited contact with others outside his immediate family. He lacked interest in previously enjoyable activities, especially social events with other people present. He continued to be distracted by intrusive thoughts and experienced distressing dreams. He spent the majority of his day at home, but occasionally went out in public with his wife and family. VA outpatient treatment records show that in October 2016, the Veteran stated that he had less energy. Mental status evaluation found that he was grossly alert and oriented. His affect was guarded and stoic and his mood was dysphoric. There was no suicidal or homicidal ideation, evidence of delusional thoughts or perceptual disturbances. His insight and judgment were adequate. In January 2017, he was alert and oriented. His affect was stoic and his mood depressed. His thought process was guarded and taciturn. There was no suicidal or homicidal ideation, evidence of delusional thoughts or perceptual disturbances. The assessment was PTSD, severe. In January 2018, he reported low energy and pervasive anhedonia. Mental status evaluation found that he was fully oriented. His affect was stoic and serious and his mood dysphoric. There was no suicidal or homicidal ideation. In June 2018 a private vocational assessment found that the Veteran had significant PTSD symptoms that completely interrupted his ability to maintain appropriate relationships with family members, potential co-workers, supervisors or the general public. His symptoms included persistent avoidance; negative alterations in cognition and mood; marked alterations in arousal and reactivity; chronic sleep impairment; significant memory loss; impaired judgment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; impaired impulse control; and depressed mood. On July 2018 VA psychiatric examination, the Veteran stated he had no friends and rarely socialized. He rated his depression as 7-8/10 and said that he had nightmares at least weekly and intrusive thoughts daily. His symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships. He did not have panic attacks, impaired judgment, suicidal ideation, obsessional rituals, impaired impulse control, persistent delusions or hallucinations, grossly inappropriate behavior or neglect of personal appearance or hygiene. The diagnosis was PTSD. The examiner stated that the Veteran had 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. She noted that the Veteran was neatly groomed, oriented to person, place and time and had a tense posture. His mood was dysphoric. There was no paranoid ideation. He reported chronic feelings of anger, irritability and difficulty trusting others. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the appeal is from the initial rating assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. A rating in excess of 70 percent for PTSD is denied. A 100 percent rating is warranted for PTSD 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; memory loss for names of close relatives, own occupation, or own name. 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 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9411. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), CAVC noted that the list of symptoms in the Board’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It was noted the regulation requires an evaluation of the effects of the symptoms, and not a search for a set of particular symptoms. The question remaining regarding the rating for the Veteran's PTSD is whether symptoms of the disability have resulted in total and occupational impairment. The June 2018 private vocational assessment which found that symptoms of PTSD “completely interrupted” the Veteran’s “ability to maintain appropriate relationships with family members, potential co-workers, supervisors or the general public” is conclusory; the meaning of “completely interrupted” is ambiguous, but if meant to convey total social as well as occupational impairment, it is inconsistent with the overall record which reflects that the Veteran maintains a close relationship with his wife and good relations with his adult children. Even that [June 2018] assessment, which focuses on findings that support the Veteran’s claim, did not find that he experiences suicidal ideation, obsessional rituals, persistent delusions or hallucinations or an inability to maintain minimal personal hygiene (or any like symptoms that might reflect total social impairment). The TDIU rating which has been assigned from when the Veteran stopped working acknowledges total occupational impairment. VA outpatient treatment records and psychiatric examination reports do not show symptoms or functional impairment consistent with a finding of total social impairment. As noted above, the Veteran has maintained marital/familial relations, apparently maintains adequate hygiene, and has been consistently noted to display adequate judgement and insight. As total social impairment is not shown, a 100 percent schedular rating for PTSD is not warranted. 2. A compensable rating for bilateral hearing loss prior to January 10, 2011 and a rating in excess of 10 percent from January 10, 2011 through November 11, 2012 are denied; a 40 percent rating is granted from November 12, 2012. Ratings for hearing loss disability are determined by the application of criteria set forth in 38 C.F.R. § 4.85, Code 6100, and 38 C.F.R. § 4.86, Under these criteria, evaluations of bilateral defective hearing range from 0 to 100 percent based on impairment of hearing acuity as reflected by the results of controlled speech discrimination tests and average puretone threshold levels as measured by audiometry in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels, ranging from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness). The percent rating is derived by applying Table VII to the hearing acuity Levels found by application of Table VI or VIA to audiometry findings. See also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Where there is an exceptional pattern of hearing loss (e.g., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the puretone threshold at 2000 hertz is 70 decibels or higher) the hearing impairment may be evaluated by applying either Table VI or Table VIA (rating on puretone thresholds alone), whichever provides for a higher rating. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a)(b). Generally, piecemeal adjudication is avoided; however, here the Board finds no reason to delay a favorable determination that will ultimately be made regardless, given what is shown by the record. Regarding the rating for the bilateral hearing loss prior to January 10, 2011, and applying 38 C.F.R. § 4.85 Table VI to the findings on the March 2009 VA examination establishes that the Veteran had Level I hearing in each ear. Under Table VII and Code 6100, such findings warrant a 0 percent rating. It was not until the January 10, 2011 VA examination that audiometry established that the Veteran’s bilateral hearing loss had increased in severity. That examination found that the Veteran had Level II hearing in the right ear and, applying Table VIa, had Level VI hearing in the left ear. Under Table VII, such findings warrant the 10 percent rating that is assigned. The findings on the November 12, 2012 VA reflect an exceptional pattern of hearing loss in each ear which allows for use of either Table VI or Table VIa (whichever is more favorable). Application of Table VIa is more favorable to the Veteran and establishes that he had Level VI hearing in the right ear and Level VIII hearing in the left. Under Table VII, such findings warrant a 40 percent rating. The Board notes that the agency of original jurisdiction rejected the November 2012 audiometry, finding that it was inconsistent with VA audiometry in January 2011 and November 2013. Regarding that determination the Board observes first that the November 2012 evaluation was by a provider on contract from VA. Presumably, VA awards such contracts to skilled competent providers. There is nothing in the record identifying a deficiency in the November 2012 testing; as reported, it was conducted in a manner consistent with 38 C.F.R. § 4.85 criteria. Furthermore, regarding the testing cited for establishing inconsistency invalidating the November 2012 examination results, the Board notes that the January 2011 audiometry was nearly two years earlier. As the Veteran alleged worsening, findings reflecting worsening would not necessarily be inconsistent. Regarding the November 2013 audiometry, the Board notes that it was conducted for treatment purposes, did not use the Maryland CNC list to test speech discrimination, was not in accordance with 38 C.F.R. § 4.85, and was not adequate for rating purposes. It does not provide support for finding the November 2012 VA examination results invalid. Considering the foregoing, the Board finds no good reason to find the November 2012 VA examination findings invalid. As the findings are consistent with a 40 percent rating under the schedular criteria, such rating is warranted from the examination date until March 8, 2017. The matter of the rating for the bilateral hearing loss from the March 8, 2017 date of a VA audiological evaluation is addressed in the remand below. REASONS FOR REMAND 3. Entitlement to a rating in excess of 40 percent for bilateral hearing loss from March 8, 2017 is remanded. Frim the March 8, 2017 date of a VA examination there is conflicting diagnostic study evidence regarding the severity of the Veteran’s bilateral hearing loss disability, which the Board cannot reconcile without further guidance. The findings on that examination showed Level III hearing in the right ear and Level V hearing in the left. The Veteran then submitted a report of private audiometry in December 2017 (when Maryland CNC speech discrimination testing was not conducted); in June 2018, that provider apparent conducted Maryland CNC list speech discrimination testing, showing (with consideration of the earlier puretone threshold testing, what would establish Level IX hearing in the right ear and Level X hearing in the left (and warrant a 70 percent rating). An interim (March 2018) VA examination found Level VI hearing in the right ear and Level VIII hearing (under table VIa) in the left ear, warranting a 40 percent rating. Notably, the March 2018 examining audiologist, who reviewed the record, indicated that the disparate findings could not be reconciled without knowing speech discrimination scores from the private evaluation. Such scores have now available (permitting reconciliation of findings based on the March 2018 VA provider’s observation). The matter is remanded for the following: Arrange for the Veteran’s record to be forwarded to an appropriate clinician (audiologist or otologist) who has not previously examined the Veteran or offered an opinion in this matter for review and an opinion reconciling the conflicting audiometric findings regarding the Veteran’s hearing acuity noted above. If further examination of the Veteran is deemed necessary (for the opinion sought), such should be arranged. Upon review of the March 2017 and March 2018 VA and the December 2017 (with June 2018 addendum with Maryland CNC list speech discrimination scores) private examinations (as well as the reports of any additional testing conducted if further examination is found necessary), the consulting provider should reconcile the disparate findings regarding the severity of the disability (to the extent possible). The provider should cite to the evidence that supports the conclusions. If a deficiency in testing methodology on any of the examination is found, it should be specifically cited. All opinions should include rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Siegel, Counsel