Citation Nr: 18147614 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-02 909 DATE: November 5, 2018 ORDER The rating reduction for posttraumatic stress disorder (PTSD) from 70 percent to 30 percent effective March 1, 2014 was proper, and restoration of the 70 percent rating is denied. From March 1, 2014, a disability rating in excess of 30 percent for PTSD is denied. A compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on unemployability (TDIU) is denied. FINDINGS OF FACT 1. In a December 2013 rating decision, the Regional Office (RO), reduced the rating for PTSD from 70 percent to 30 percent, effective March 1, 2014; at the time of the reduction, the 70 percent rating had been in effect for less than five years, and resulted in a decreased combined disability rating. 2. The evidence of record at the time of the reduction showed an improvement in the Veteran’s PTSD symptoms under the ordinary conditions of life and work. 3. From March 1, 2014, the Veteran’s PTSD has not been shown to cause occupational and social impairment with reduced reliability and productivity. 4. At no time during the appeal period has the Veteran’s hearing loss been manifested by worse than Level I hearing acuity bilaterally. 5. The preponderance of the evidence is against a finding that the Veteran’s PTSD, hearing loss and/or tinnitus preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The reduction of the disability evaluation for the Veteran’s PTSD from 70 percent to 30 percent was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.130, Diagnostic Code 9411. 2. From March 1, 2014, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 4. The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to May 1969, to include service in the Republic of Vietnam. In November 2014 VA Form 9s, the Veteran requested a hearing before the Board of Veterans’ Appeals (Board). In an February 2016 statement, he withdrew that request and it is deemed withdrawn. 38 C.F.R. § 20.704(e). 1. Reduction and Rating for PTSD Initially, because the rating reduction at issue reduced the Veteran’s combined disability rating, resulting in a reduction in the amount of compensation payable to him, the procedural requirements of 38 C.F.R. § 3.105(e) apply. Here, the RO complied with those requirements in its October 2012 notice of the proposal to reduce the rating, and in the December 2013 rating decision reducing the rating. The Board acknowledges that originally the rating was reduced in January 2013 without the Veteran being afforded a requested hearing; however, the rating was thereafter reinstated and a hearing was scheduled. The rating was not finally reduced until the Veteran failed to appear at the hearing scheduled in November 2013. The Board finds the RO satisfied the requirements set forth in 38 C.F.R. § 3.105(e). Turning to whether the reduction was proper, the Board notes that at the time of the reduction, effective March 1, 2014, the 70 percent for PTSD had been in effect for a period of less than five years. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply and reexamination disclosing improvement would warrant a rating reduction. 38 C.F.R. § 3.344(c). However, in Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. The burden of proof is on the Department of Veterans Affairs (VA) to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Under the General Formula for Rating Mental Disorders a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent disability rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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. Id. A 70 percent evaluation is warranted where 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; obsessive rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Turning to the evidence, the Veteran filed a claim for service connection for PTSD in March 2010. In July 2010, the Veteran underwent a private psychiatric evaluation set up by his then attorney representative. It was noted he had been diagnosed with PTSD as an outpatient in January 2010 and medication was prescribed to help him sleep which was not working. His speech was clear. There was no evidence of thought disorder. His eye contact was good, although he was tearful at times. He was oriented. He denied hallucinations and suicidal ideation. The examiner indicated his level of depressive symptoms was mild and he had a minimal level of anxiety. A diagnosis of PTSD, mood disorder not otherwise specified (NOS) and generalized anxiety disorder were diagnosed as a direct result of Vietnam experiences. In January 2012, the Veteran underwent a VA examination. He was diagnosed with PTSD and depressive disorder NOS. It was not possible to differentiate what symptoms were attributable to each diagnosis because of significant symptom overlap. Occupational and social impairment with reduced reliability and productivity was noted to summarize the Veteran’s level of occupational and social impairment with regards to all mental disorders. It was noted he was not currently taking any psychotropic medications and had no history of psychiatric hospitalizations. It was noted he played golf and participated in American Legion activities. The Veteran reported experiencing nightmares 2 to 3 times per week and hearing noises in the night that caused him to get up and be prepared to dial 911. He denied present suicidal/homicidal ideation. He described a consistently depressed mood, crying spells, anhedonia, fluctuating energy levels, intense guilt regarding actions in Vietnam, and generalized self-criticalness. It was noted he drank 6-10 beers per week, with one intoxication in the past six months. Current symptoms were indicated to include depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory or stereotyped speech, disturbance in motivation and mood, difficulty in establishing relationships, and difficulty in adapting to stressful circumstances. In a January 2012 rating decision, the RO granted service connection for PTSD and assigned a rating of 70 percent for symptoms consistent with that rating reported at the 2012 examination. In a June 2012 notice of disagreement, the Veteran’s representative contended that the Veteran’s symptoms were more consistent with an evaluation of 100 percent. In July 2012, the Veteran underwent another VA examination. PTSD and bereavement were noted due to the loss of the Veteran’s step-son who had recently died of a heart condition. 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 summarized the Veteran’s level of occupation and social impairment. It was noted the Veteran was a finance officer at the American Legion and was there 5 days per week for business; he also played cards and talked with other service members. In addition, he indicated working at a friend’s golf course 15 hours a week. He reported he had a good group that he socialized with and he enjoyed watching TV sports and news. It was indicated he had last met with a counselor in May 2011 and was not taking any psychiatric medications. He noted drinking a 12 pack of beer a week. His current symptoms were noted to include depressed mood and anxiety. He was described as appropriately groomed and casually dressed. He was oriented to person, place, and time. Eye contact was good and rapport developed quickly. He was calm and cooperative. His speech was normal for rhythm, rate and volume. No psychomotor agitation or retardation was observed. The Veteran’s mood was euthymic and his affect was congruent with mood. He denied current suicidal and homicidal ideation. His thought processes were linear, logical and goal-directed. Insight, judgment and reasoning appeared intact, with no evidence of any perceptual disturbances, paranoia or delusional thinking. It was noted that Veteran maintained meaningful relationships. He indicated his mental condition had not increased in severity and he had generally very good interpersonal, social and occupational functioning. It was noted the bereavement process was being handled in an appropriate manner and the Veteran was seeking help and support from family and friends. In an October 2012 rating decision, the RO proposed to reduce the Veteran’s disability rating to 30 percent due to signs of improvement in the Veteran’s ability to function shown at the July 2012 VA examination. In a correspondence that same month, the Veteran’s representative requested a hearing on the matter. In September 2013, a hearing was scheduled. The Veteran failed to appear at the hearing and in December 2013 rating decision, the PTSD rating was reduced, effective March 1, 2014. Private treatment records dated in September 2013 showed the Veteran had been in an automobile accident that rendered him a quadriplegic after he suffered an acute ischemic stroke. Those records indicated the Veteran had not had formal treatment for his PTSD and had good family support. The record is otherwise silent as the to the Veteran’s current level of disability caused by PTSD. The Board finds that pursuant to 38 C.F.R. § 3.44(c), the reexamination in July 2012 disclosed improvement and that a rating reduction from 70 percent to 30 percent for PTSD was warranted in this case. Specifically, in July 2012, the Veteran failed to show any symptoms indicating deficiencies in most areas of his life. Indeed, he indicated having strong social relationships and that he was able to work at the American Legion and a golf course without hinderance caused by his PTSD. He was shown to be high functioning without disorientation, speech issues or any other of the symptoms that would indicate deficiencies in most areas of life as required for a 70 percent evaluation. The July 2012 VA examination demonstrated improvement and there was no indication that the Veteran’s ability to function would not be maintained. As such, the Board finds that the reduction effective March 1, 2014 in the rating for PTSD was proper. The Board further finds that evidence has not been provided that the Veteran’s PTSD symptomatology has significantly worsened or that a rating in excess of 30 percent for PTSD is warranted. It is acknowledged that the Veteran was unfortunately involved in a very serious motor vehicle accident in 2013 necessitating significant rehabilitation; however, no recent evidence indicates a worsening of his PTSD. The Veteran denied suicidal ideation and obsessive rituals were not demonstrated in July 2012. He was also not experiencing near continuous panic as demonstrated by his ability to socialize and perform business daily. The Veteran’s behavior was appropriate and he showed no signs of psychotic thought content or process problems. Entitlement to a rating in excess of 30 percent rating requires occupational and social impairment with reduced reliability and productivity or worse caused by more severe symptoms than demonstrated by the record. Given the above, the Board finds that entitlement to a rating in excess of 30 percent for PTSD has not been demonstrated. In coming to the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Rating for Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment 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). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d). To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Tables VI, VIA. In order to establish entitlement to a compensable rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met. The results of the pure tone audiometric test and speech discrimination test are charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when an exceptional pattern of hearing loss is shown, specifically when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIA, whichever results in the higher numeral. Id. Following a claim for service connection, the Veteran underwent a VA examination in August 2011. An audiogram yielded the following results with pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 45 70 44 LEFT 20 45 65 85 54 The average decibel loss was 44 decibels in the right ear and 54 decibels in the left ear. Speech discrimination scores were 98 percent bilaterally. Based on Table VI, the Veteran had Level I hearing acuity in each ear. Applying Table VII, a noncompensable rating was warranted. In a June 2012 notice of disagreement, the Veteran’s representative indicated the belief that the Veteran’s symptoms were more consistent with an evaluation of 10 percent. In June 2012, the Veteran underwent another VA examination. The Veteran indicated he lived alone, but that his friends commented that his hearing was poor. He stated he had trouble understanding words when listening in any noisy place such as a restaurant and his friends told him he listened to the television too loud. An audiogram yielded the following results with pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 45 60 32 LEFT 25 35 50 65 44 The average decibel loss was 32 decibels in the right ear and 44 decibels in the left ear. Speech discrimination scores were 96 percent bilaterally. Based on Table VI, the Veteran had Level I hearing acuity in each ear. Applying Table VII, a noncompensable rating was warranted. The Veteran has not contended that his hearing loss has significantly worsened since the June 2012 VA examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Based on a review of the objective evidence of record in light of the statutorily mandated method of evaluating hearing disabilities, the Board finds that the audiometric findings do not demonstrate that the Veteran is entitled to a compensable rating for hearing loss. The Board has carefully considered the lay statements made by the Veteran regarding his inability to hear well. The Veteran is certainly competent to describe his hearing loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran’s description of his service-connected disability must be considered in conjunction with the clinical evidence of record. The Board emphasizes again that disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board has no discretion in this matter and must predicate its determination on the basis of the results of the valid audiology studies of record. In coming to the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his/her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In the instant matter, prior to March 1, 2014, the Veteran met the criteria for entitlement to a TDIU because of the assignment of a 70 percent disability rating for PTSD. As of March 1, 2014, when the Veteran’s rating for PTSD was reduced to 30 percent, he no longer met the criteria as his service-connected disabilities consisted of PTSD rated as 30 percent disabling, tinnitus rated as 10 percent disabling and hearing loss rated as 0 percent disabling. After March 1, 2014, he was in receipt of a 40 percent combined disability rating. 38 C.F.R. § 4.16(a). The Board has considered the evidence and determined that prior to March 1, 2014, the criteria for entitlement to a TDIU were not met and that after March 1, 2014, referral for consideration of entitlement to a TDIU on an extraschedular basis is not warranted because the evidence does not suggest the Veteran is precluded from substantially gainful employment by PTSD, hearing loss and/or tinnitus. Indeed, the most recent evidence of record indicates the Veteran was working five days a week as a finance officer at the American Legion and also part time at a local golf club and that this was at least true between 2010 and 2012 prior to his automobile accident in 2013. No more recent evidence indicates an inability to work based on current symptomatology caused by PTSD, tinnitus and/or hearing loss. Indeed, in December 2012, addendum opinions were sought regarding the impact of the Veteran’s PTSD and hearing impairment on his employability. It was noted the Veteran had retired as a salesman after 36 years in 2006. He worked at Walmart for a year, but standing on his feet was too painful. Then he went to work at his friend’s golf course and was also a financial officer for his local American Legion. The Veteran was noted to be maintaining meaningful relationships and that no mental health services, treatment or medications were noted in the records. The examiner concluded that mental conditions did not rise to a level that resulted in impairment in occupation, social or interpersonal functioning. As to hearing loss, it was determined that the July 2012 audiogram depicted moderate to moderately severe hearing loss that would affect the Veteran’s ability to work in occupations requiring communications or high frequency sound monitoring activities that may be associated with items such as alarms and safety or medical equipment. It was indicated that the use of a hearing aid system would alleviate some employment situations, but there were only a few occupations that required a minimal hearing standard. Overall, the Board finds that the evidence does not suggest that PTSD, hearing loss and/or tinnitus precludes the Veteran from obtaining or maintaining substantially gainful employment and, as such, referral for extraschedular consideration of entitlement to a TDIU is not warranted and entitlement to a TDIU must be denied. In coming to the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel