Citation Nr: 18148382 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-50 837 DATE: November 7, 2018 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The Veteran’s PTSD is not shown to cause total occupational and social impairment. CONCLUSION OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from June 1972 to September 1974. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in July 2017 when it was remanded for additional evidentiary development. The matter has properly returned to the Board for appellate consideration. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. PTSD By rating decision of June 2015, the Veteran was granted service connection for PTSD with chronic opiate dependence, chronic benzodiazepine dependence and personality disorder, and initially assigned a 30 percent disability rating, effective June 15, 2014, the date VA received the Veteran’s application to reopen his claim. Thereafter, in an August 2018 rating decision, the Veteran’s initial evaluation was increased from 30 percent to 70 percent for PTSD, effective June 15, 2014. The Veteran continues to disagree with the assigned evaluation and seeks the highest rating for the entire appeal period. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s PTSD has been rated under Diagnostic Code 9411, which is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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; memory loss for names of close relatives, own occupation or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating 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. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As explained below, the competent evidence of record, to include the medical treatment records, VA examination reports, and lay statements, does not establish findings consistent with a 100 percent evaluation for the Veteran’s PTSD. The Veteran was afforded a VA examination in March 2015. At that time, the examiner noted multiple diagnoses, including PTSD, but indicated that the Veteran’s diagnosed disorders are interactive and tend to augment each other. The examiner found the Veteran’s level of occupational and social impairment consistent with mild and transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran indicated that he and his spouse were living with his brother. He described symptoms of depressed mood, anxiety, and chronic sleep impairment, noting that he is “always anxious” and “feels like something bad is going to happen.” In compliance with the Board’s July 2017 remand directives, the Veteran was afforded an additional VA examination to determine the severity of the Veteran’s alleged worsening symptoms of PTSD. A March 2018 VA examination report reflects current diagnoses of PTSD; major depressive disorder, moderate to severe; cocaine use disorder, in full remission; and personality disorder. The VA examiner indicated that, collectively, the Veteran’s mental conditions result in “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood”. Significantly, the examiner specified that the level of impairment associated with PTSD is “consistent with occupational and social impairment with reduced reliability and productivity.” The examiner noted that the Veteran’s PTSD caused symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty establishing and maintaining effective social relationships, and obsessive rituals which interfere with routine activities. On clinical interview, the Veteran reported being in a “close and supportive” relationship with his wife of 26 years (together for 36 years). The Veteran noted contact with his younger brother a couple of times a week but stated he was generally not close with him or his 2 surviving sisters. Although he indicated he had an adult daughter, he said he had not spoken to her in over 5 years, attributing such to interference by his former in-laws. He denied any other significant social relationships or involvement in leisure activities, including previous hobbies such as riding his motorcycle and bowling. As for clinical impressions, the examiner noted that the Veteran was adequately groomed, alert and fully oriented, and generally cooperative with the assessment process. His speech was goal oriented and thought processes were organized with no evidence of hallucinations, delusions, mania, or pronounced obsessive-compulsive features. The examiner noted the Veteran’s report of persistent passive suicidal ideation and non-specific aggressive/homicidal ideation but that he denied any plan or intent to act on his negative thoughts. The examiner indicated that the Veteran is capable of managing his financial affairs. Upon review of the evidence, the Board finds that the preponderance of the evidence is against a finding of entitlement to an evaluation exceeding 70 percent at any time for the period on appeal. As described above, the Veteran clearly experienced psychiatric symptomatology as a result of his PTSD with symptoms such as depressed mood, anxiety, chronic sleep impairment, and difficulty establishing and maintaining social relationships. However, as indicated by the March 2018 VA examiner, many of the above symptoms, in addition to impaired judgement, impaired impulse control, and suicidal ideation, are in fact, associated with the Veteran’s mood, personality, and substance use disorders. The objective evidence of record simply does not establish that the Veteran’s PTSD results in total occupational and social impairment. Indeed, the Board acknowledges the Veteran’s lay statements of record reporting momentary thoughts of suicide as noted by a social worker in November 2016. However, he spoke frequently with his social worker and had monthly in-home visits through November 2017 when it was determined that “no additional case management needs were requested or indicated.” Additionally, a mental health note of September 2017 reflects the Veteran’s report that “he has been doing fairly well” and specifically denied any homicidal, suicidal ideation and has not been physically confrontational. He also denied any intent and/or plan to hurt himself or others. The Board notes that such relevant mental history was specifically considered by the VA examiner that evaluated the Veteran in March 2018. Further, at no time does the evidence of record show that the Veteran had other symptoms characteristic of a 100 percent evaluation such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others. The Board recognizes the list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, however, it cannot be concluded that the Veteran’s symptoms more nearly approximate total occupational and social impairment. 38 C.F.R. § 4.130. With regard to occupational functioning, the March 2018 examiner specifically indicated the level of impairment associated with symptoms of PTSD “consistent with occupational and social impairment with reduced reliability and productivity.” In fact, the Veteran acknowledged brief periods of productivity working in VA housekeeping in 2010 and delivering medical equipment from 2012 to 2013. Treatment records note that the Veteran has expressed a “desire to obtain employment, preferably as a driver.” Consequently, the Veteran’s PTSD has not shown to cause total occupational impairment. Furthermore, at no time does the record reflect that the Veteran had an inability to establish and maintain effective relationships. In fact, he has sustained a 26-year marriage throughout the appeal period and described the relationship as “close and supportive”. Additionally, he indicated communicating with his younger brother multiple times a week. Thus, it cannot be concluded that the Veteran is totally socially impaired. In short, the record does not establish that his PTSD resulted in total occupational and social impairment. Thus, the Board finds that the next higher rating of 100 percent is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 70 percent for PTSD. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran was afforded a VA hearing loss and tinnitus examination in March 2018. The examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service. The rationale provided that there is no evidence of an in-service noise injury based on a lack of shift in the Veteran’s pure tone thresholds from enlistment to separation. The Board notes, however, that the Court of Appeals for Veterans Claims held in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), that normal hearing at separation from service does not by itself preclude an award of service connection. Accordingly, an addendum opinion should be obtained from the March 2018 VA examiner. Further, the March 2018 VA examiner associated the Veteran’s tinnitus to his bilateral hearing loss. As such, an addendum opinion should be obtained on this intertwined issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding treatment records pertinent to the Veteran’s claims on appeal. 2. Thereafter, obtain an addendum opinion from the March 2018 VA examiner, if available, regarding the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. If the March 2018 examiner is not available, then a medical opinion should be obtained from another qualified examiner. If the VA examiner finds that an additional audiological examination is necessary, one should be arranged. After a review of the claims file, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus are etiologically related to the Veteran’s period of active service? The examiner should be aware that normal hearing at discharge does not necessarily preclude service connection. 3. The examiner should provide a rationale for all opinions expressed. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel