Citation Nr: 18150524 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-41 471 DATE: November 15, 2018 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The evidence of record does not show a current bilateral hearing loss disability for VA purposes. 2. During the period on appeal, the Veteran’s PTSD has been characterized by occupational and social impairment with occasional decrease in work efficiency; reduced reliability and productivity has not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. § (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for entitlement to an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 to September 2006, and from May 2010 to February 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2015 rating decision by a Regional Office (RO) of the U.S. Department of Veterans Affairs (VA). Entitlement to service connection for bilateral hearing loss disability Service connection for bilateral hearing loss is denied because there is no evidence of a current hearing loss disability under VA regulations. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 1131 (2012). The evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The evidence in this matter indicates that the Veteran experienced acoustic trauma during service while serving as a motor transport operator. However, a service connection finding is unwarranted because the available evidence does not show bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 (2018). Under 38 C.F.R. § 3.385, hearing loss will be considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The medical evidence, to include private treatment records dated until 2017 and VA treatment records dated until 2015, does not substantiate the presence of a hearing loss disorder under 38 C.F.R. § 3.385. Further, the most recent audiogram of record, dated in April 2011, does not indicate such a disability. As such, the record lacks evidence indicating current hearing loss disability. See Rabideau, supra. The record indicates that the RO attempted to schedule a VA compensation examination into this claim, but that the Veteran did not respond to the RO’s efforts to schedule an examination for him. A VA representative phoned the Veteran, asking if he was willing to attend examinations, to which the Veteran responded affirmatively. Nonetheless, the Veteran did not respond to June 2016 and January 2018 correspondence attempting to schedule a VA examination. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“[t]he duty to assist is not always a one-way street.”) As such, the Board has decided this claim based on the evidence of record. See 38 C.F.R. § 3.655 (2018). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). Entitlement to an initial rating in excess of 30 percent for PTSD The Veteran is in receipt of a 30 percent rating for PTSD under Diagnostic Code (DC) 9411. He asserts that his symptoms are severe enough to warrant a 50 percent rating. The record indicates that the RO also attempted to schedule a VA examination of this disability in 2018, but that the Veteran did not respond. Further, the record indicates that VA attempted to obtain records identified by the Veteran as relevant to this claim. VA sent the Veteran a letter in June 2016 requesting authorization for records pertaining to PTSD treatment. But the Veteran did not respond. See Wood, supra. Under 38 C.F.R. § 3.655, VA is guided to deny increased rating claims for which the Veteran did not appear for an examination. Nevertheless, the Board will review the record to determine whether a higher rating is warranted based on the evidence now of record. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. The Veteran’s PTSD is rated under Diagnostic Code 9411 of 38 C.F.R. 4.130, which provides the general rating formula for mental disorders. Under the applicable diagnostic criteria, a 30 percent rating is granted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. 4.130, Diagnostic Code 9411. A 50 percent rating is assigned for 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. Id. Based on the evidence of record, a 50 percent rating (i.e., the next-highest rating in excess of the currently-assigned 30 percent) is not warranted. The record indicates that the Veteran’s symptoms do not rise to the level of occupational and social impairment with reduced reliability and productivity. First, throughout the period on appeal, the Veteran was awake, alert, and pleasant. His speech was normal according to his January 2015 C&P examiner, and fluent and articulate, according to an examination report dated January 2017. Similar observations are documented in a record dated November 2014. This examiner also noted that the Veteran was pleasant, with a normal mood and affect. Throughout the appeal period, the record shows no signs of mania, psychosis, or other absence of clarity of thought. His most recent C&P examination report, dated January 2015, and subsequent notes, indicate that the Veteran is able to maintain personal appearance and hygiene. Finally, the record, including the Veteran’s C&P examination and a medical record dated October 2015, shows an absence of illegal drug use, and moderate alcohol use. While the evidence shows significant mood disturbances, they are not sufficient to warrant a rating in excess of 30 percent. For example, the Veteran’s January 2015 C&P examiner noted the Veteran’s mood as normal, despite some anxiety and irritability, causing the Veteran to yell, swear, break a drawer, and on one occasion, to hit his dog. The Board notes that the Veteran’s mood was generally noted to be “good” and “pleasant” during this examination, despite later evidence of memories causing anxiety. Similar observations were made in October 2015, and as recently as January 2018. Finally, the Board notes the Veteran’s assertions of daily anxiety issues causing panic. However, the evidence of record does not show panic attacks occurring weekly. As the criteria for the next higher evaluation mention “panic attacks more than once a week,” mentioning panic attacks, by itself, does not merit an increased evaluation. In sum, the criteria for a 50 percent rating contemplate a more severe level of mood disturbance than the record presents. Similarly, despite his mood symptoms, the Veteran is able to manage his financial affairs, according to his January 2015 C&P report. The Veteran is noted to be a good worker who goes to work regardless of how he is feeling emotionally. Any occasional decrease in work efficiency is considered in his 30 percent rating. While the Veteran exhibited sleep impairment throughout this period, such symptoms are also contemplated by his current rating under DC 9411. The record does not show sleep disturbances – indeed the Veteran’s January 2015 examiner noted that he got six hours per night of sleep. Such sleep disturbances, while undoubtedly unsettling, are not uncommon with PTSD and any resulting occupational or social impairment is contemplated in the Veteran’s current 30 percent rating. Likewise, the Veteran’s cognitive state during the period on appeal does not warrant an increased rating. The medical evidence of record does not reflect that the Veteran’s long- and short-term memory was significantly impaired during the appeal period. Further, the record does not show impaired judgment or trouble with the law during the appeal period. His January 2015 VA examiner noted that the Veteran would get easily frustrated on the road, and carried a handgun with him at all times. However, “no legal problems pre- or post military [sic],” and that he does not pose a threat to himself or others. Finally, throughout the period on appeal, the Veteran has not generally had delusions or hallucinations, or suicidal or homicidal ideations. Thus, the Veteran’s general cognitive state most resembles his current 30 percent rating. Based on the symptoms clinically observed, the Veteran has experienced some of the relevant symptoms that might support a rating in excess of 30 percent. For example, he has exhibited disturbances of mood and motivation and panic attacks. The Veteran comments about panic in his August 2016 VA Form 9. In the Board’s view, this assertion lacks sufficient specificity to warrant an increased rating. The criteria for the next-higher 50 percent rating depict a level of impairment, when viewed as a whole, that is more severe than the symptoms displayed by the Veteran. The Veteran mentions panic attacks, but it does not appear that these panic attacks occur at least once a week. Thus, the Board is unable to assign a rating higher than 30 percent, despite the Veteran’s stated history of panic attacks. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of total occupational and social impairment, to include social and occupational inadaptability. In this regard, it is clear that the Veteran’s service connected PTSD impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted. The Veteran’s social functioning seems to be, at worst, commensurate with his current rating. According to the January 2015 VA report, the Veteran had been married for almost ten years, enjoying good relationships with his wife and children. While the Veteran, according to a September 2015 statement, cannot attend fairs, or go out in public without being affected by his disorder, the Board finds that his symptoms are adequately addressed by his current rating. Moreover, despite reports of work anxiety, the VA examiner also noted a history of successful employment in clerical work and sales, being laid off from only one job. In considering the appropriate disability ratings, the Board has also considered the statements of the Veteran and of his representative that his PTSD is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a 30 percent rating is warranted for the Veteran’s PTSD for this period. (Continued on the next page)   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel