Citation Nr: 18145587 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-36 912 DATE: October 29, 2018 ORDER Entitlement to a disability rating higher than 10 percent for bilateral hearing loss is denied. Entitlement to a disability rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. For the period on appeal, the Veteran had, at worst, Level II hearing acuity in the right ear, and Level XI hearing acuity in the left ear. 2. For the period on appeal, the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: depressed mood; anxiety; chronic sleep impairment; and difficulty maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.86, Diagnostic Code 6100. 2. The criteria for a disability rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1969 to September 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Increased Rating Generally, disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the United States Court of Appeals for Veterans Claims has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the appeal, the assignment of staged ratings would be necessary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral Hearing Loss The Veteran’s service-connected bilateral hearing loss is currently assigned a 10 percent disability rating under the provisions of Diagnostic Code (DC) 6100 of the Rating Schedule. See 38 C.F.R. § 4.85. The Board notes that service connection is also in effect for tinnitus with a 10 percent disability rating. Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. See 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Id. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. See 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. See 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone if the examiner certifies the use of the speech discrimination test is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. See 38 C.F.R. § 4.85(e). Further, 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). The Veteran was examined by a VA audiologist in July 2015. During the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 55 50 65 LEFT 85 75 80 75 The average puretone thresholds were 50 decibels in the right ear and 79 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 20 percent in the left ear. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level II hearing acuity in the right ear, and Level XI hearing acuity in the left ear. The Board notes that while the Veteran presented with pure tone thresholds at each of the four specified frequencies with more than 55 decibels in his right ear, evaluation under Table VIa would result in a lower Roman numeral evaluation than under Table VI; thus, the results under Table VI will be used. The combined numeric designations of Level II and Level XI warrant a 10 percent rating under Table VII. 38 C.F.R. § 4.85. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran’s hearing loss has not approximated the criteria for a rating higher than 10 percent for the period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to a disability rating higher than 10 percent for bilateral hearing loss is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD Pursuant to VA regulations, the Veteran’s PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Veteran has been rated at 10 percent under Diagnostic Code (DC) 9411. The General Rating Formula for Mental Disorders provides for the assignment of a 10 percent rating when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, DC 9411. A 30 percent rating is warranted when the evidence shows there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; or mild memory loss. Id. A 50 percent rating is warranted when the evidence shows 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 than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material or 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. Id. A 70 percent 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 work-like setting); and the inability to establish and maintain effective relationships. Id. Lastly, the assignment of a 100 percent rating is warranted if 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. Id. The symptoms listed in VA’s General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Additionally, the rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. Of record is a September 2017 PTSD disability benefit questionnaire completed by a private clinical psychologist. The psychologist indicated that the Veteran was experiencing symptoms from PTSD, insomnia, and severe major depressive disorder. He experienced depressive memories of traumatic events and avoidance of thinking about or associating with anything that would remind him of his past traumas. He further experienced irritability, low frustration tolerance, anxiety, depression, hypervigilance, excessive worry, exaggerated startled response, and sleep disturbance. The examiner indicated that the Veteran experienced these symptoms after military related trauma and they have worsened since his prior VA examination, which the Board notes was in June 2012. Regarding occupational impairment, the Veteran was unemployed due to recent surgery and he claimed functional impairment due to his mental disabilities. He was severely traumatized by past experiences leading to emotional distress, sleep disturbances, reactivity, anger and irritability, anxiety, depressive symptoms, and increased isolation. However, the report also indicated that the Veteran was employed for over 15 years at a chemical plant and was fired because he did not see eye-to-eye with his new plant manager. He subsequently gained employment, but was fired due to quality of work and focus. Regarding social impairment, although the Veteran was married, he indicated that he had become increasingly isolated. There is no VA psychiatric examination for the relevant period on appeal. The Veteran was scheduled for a VA examination in September 2015, but failed to report and did not show good cause. Subsequently, after the issuance of the rating decision denying an increase, the Veteran indicated a desire for another examination. Another examination was scheduled and the Veteran cancelled indicating that he was unable to take off from work. Subsequent attempts were made to schedule an examination, but it does not appear that one was conducted. In light of the foregoing, the Board finds that entitlement to a disability rating of 50 percent, but no higher, for PTSD is warranted. It is important to note that the Board is precluded from differentiating between the symptoms of the Veteran’s PTSD and his other psychiatric disorders, such as severe major depressive disorder, in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board finds that based on the evidence of record, it is not possible to differentiate which symptoms are attributed to the Veteran’s PTSD, and which are attributed to the Veteran’s other psychiatric disabilities; thus, all the Veteran’s psychiatric symptomology will be taken into consideration when evaluating his PTSD. Based on the clinical findings in the September 2017 private report, the Veteran presented occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood, anxiety, chronic sleep impairment, a difficulty in establishing and maintaining effective work and social relationships, and disturbances of motivation and mood; thus, warranting a 50 percent disability evaluation. See 38 C.F.R. § 4.130, DC 9411. Based on the Veteran’s disability picture, a disability rating higher than 50 percent is not warranted. There is an indication of suicidal thoughts, but this did not appear to be a persistent issue for the Veteran. Further, there are no clinical findings of obsessional rituals, intermittently illogical, obscure, or irrelevant speech, impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene. In sum, the Board finds that the Veteran’s psychiatric symptoms such as depressed mood, anxiety, chronic sleep impairment, and difficulty maintaining effective work and social relationships, are of a similar frequency, type, and duration as those associated with a 50 percent rating. Accordingly, the Board finds that entitlement to a disability rating of 50 percent, but no higher, for PTSD is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel