Citation Nr: 18150933 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-33 108 DATE: November 16, 2018 ORDER 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is denied is denied. 2. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. 3. Entitlement to an initial rating of 70 percent, but not more, for posttraumatic stress disorder (PTSD) is granted. REMANDED 1. Entitlement to service connection for the cause of the Veteran’s death. 2. Entitlement to service connection for hypertension, to include as due to exposure to an herbicidal agent. 3. Entitlement to service connection for an enlarged prostate, to include as due to exposure to an herbicidal agent. 4. Entitlement to service connection for bilateral upper and bilateral lower extremity peripheral neuropathy, to include as due to exposure to an herbicidal agent, alternatively claimed as secondary to service-connected disability. 5. Entitlement to service connection for a disability claimed as Parkinson’s disease, alternatively diagnosed as orthostatic tremors with Parkinsonian symptoms and multi-system atrophy, to include as due to exposure to an herbicidal agent. 6. Entitlement to special monthly compensation based on Aid and Attendance or due to housebound status. INTRODUCTION The Veteran served on active duty from January 1954 to December 1974. The Veteran died in November 2015, and his surviving spouse has been substituted as the Appellant. These claims come before the Board of Veterans’ Appeals (Board) on appeal from March 2012, April 2014, and April 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s bilateral hearing impairment was no worse than Level IV, bilaterally. 2. The Veteran’s service-connected tinnitus has been assigned a 10 percent rating throughout the appeal period. 3. Throughout the pendency of this appeal, the Veteran’s PTSD resulted in social and occupational impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100. 2. There is no legal basis for the assignment of a rating in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. 3. The criteria for an initial rating of 70 percent, but not more, for PTSD have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Bilateral Hearing Loss The Veteran’s May 2011 claim of entitlement to service connection was granted in a March 2012 rating decision. The RO assigned an initial 10 percent rating to the veteran’s bilateral hearing loss, effective May 16, 2011. The Veteran perfected an appeal, seeking an increased initial rating. The severity of hearing loss is determined by comparing audiometric test results with the specific criteria. 38 C.F.R. § 4.85, Diagnostic Codes 6100 through 6110. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from service-connected defective hearing. The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. Pursuant to his May 2011 claim, the Veteran was provided a VA audiological examination in December 2011. Audiological testing resulted in puretone thresholds, in decibels, as follows with respect to his right ear: 30 at 1000 Hertz; 40 at 2000 Hertz; 80 at 3000 Hertz; and 90 at 4000 Hertz. Concerning his left ear, testing yielded the following puretone thresholds: 30 at 1000 Hertz; 35 at 2000 Hertz; 70 at 3000 Hertz; and 100 at 4000 Hertz. The examiner determined that the Veteran’s average right ear puretone threshold was 60 decibels, while his left ear average was 59 decibels. On word recognition testing using the Maryland CNC word list, the Veteran scored 80 percent with his right ear and 76 percent with his left ear. The Veteran was then asked to describe the functional impacts of his decreased hearing acuity, to which the Veteran responded that he experienced difficulty hearing soft speech. Applying the December 2011 audiometric results to the Rating Schedule reveals a numeric designation of Level IV for the Veteran’s right ear and Level IV for his left ear. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in a 10 percent rating. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86 (2017). However, the Veteran’s audiological test results did not demonstrate puretone thresholds of 55 decibels or more in all four frequencies of 1000, 2000, 3000, and 4000 Hertz, in either ear. As such, a rating for an exceptional pattern of hearing impairment is not warranted at any point throughout the pendency of this appeal. 38 C.F.R. § 4.86(a). Additionally, with respect to an exceptional pattern of hearing loss, although the evidence of record demonstrates puretone thresholds of 30 decibels or fewer at 1000 Hertz, the Veteran’s puretone thresholds at 2000 Hertz were not 70 decibels or greater. Thus, additional consideration for an exceptional pattern of hearing impairment for his service-connected bilateral hearing loss is not warranted. 38 C.F.R. § 4.86(b). The evidence of record is otherwise negative for audiological results to which the regulations can be applied. Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, based on the audiometric findings of record, an initial rating in excess of 10 percent for bilateral hearing loss is not warranted. Tinnitus In the March 2012 rating decision, service connection was granted for tinnitus, and a 10 percent rating was assigned thereto. The Veteran perfected an appeal, seeking an increased initial rating. The maximum rating authorized for tinnitus is 10 percent. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); 38 C.F.R. §4.87, Diagnostic Code 6260. There is no legal basis upon which to award a schedular evaluation for tinnitus in each ear or a higher schedular rating for tinnitus. Consequently, the Veteran’s claim for such a benefit is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). PTSD In May 2011, the Veteran submitted a claim of entitlement to service connection for PTSD, which was granted in the June 2012 rating decision. An initial 50 percent rating was assigned thereto, effective May 18, 2011. He perfected an appeal, seeking an increased initial rating. PTSD is evaluated under Diagnostic Code 9411. A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned 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); inability to establish and maintain effective relationships. A maximum 100 percent rating is warranted for 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. The symptoms listed 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The symptoms considered in determining the level of impairment under the General Rating Formula for Mental Disorders are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the fifth edition of the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-V). It should be noted that prior to August 4, 2014, VA’s Rating Schedule for mental disorders was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130. Like in this case, diagnoses many times included an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. In 2013, the DSM was updated with a 5th Edition (DSM-V), which recommends that GAF scores be dropped due to their “conceptual lack of clarity.” See DSM-V, at 16. However, since the Veteran’s claim was originally filed prior to the adoption of the DSM-V, the DMS-IV criteria will be discussed in the analysis set forth below. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Carpenter v. Brown, 8 Vet. App. 240 (1995). Pertinent to this case, GAF scores ranging from 41 to 50 reflect serious symptoms (e.g. suicidal ideation or severe obsessional rituals), or any other serious impairment in social or occupational functioning. The Veteran underwent private psychological evaluations over a three-month period in 2011 from April to June. During these evaluations, the Veteran endorsed divorcing his first spouse in 1980, and having undergone marital counseling. However, he and his first spouse had two sons with whom he had good relationships. Further, the Veteran reported being married to his then current spouse for 20 years and that they had a good marriage. The examiner indicated that the Veteran’s spouse was “quite supportive.” The Veteran also described working for a construction company doing inspections and corrections, but that he retired in 1974 at the age of 40. No specific diagnosis was rendered, and no GAF score was assigned. Pursuant to the Veteran’s claim, he underwent a VA psychiatric examination in November 2011. After reviewing the evidence of record, interviewing the Veteran, and administering clinical testing, the examiner rendered a diagnosis of PTSD. With respect to occupational and social impairment, the Veteran reported that he worked for a short time as a carpenter after his active duty service, but described his employment history as “brief.” The examiner determined that the Veteran’s PTSD was manifested by a depressed mood, mild memory loss, impairment of short- and long-term memory, chronic sleep impairment, anxiety, impairment of abstract thinking, a flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and spatial disorientation. Further, with respect to diagnostic criteria F, the examiner stated that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important area of functioning. Ultimately, the examiner assigned a GAF score of 48, which indicates serious symptoms, and concluded that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Board finds that the Veteran’s service-connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas throughout the pendency of this claim (prior to his death). Consequently, an initial 70 percent rating is warranted. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Although the evidence of record establishes that the Veteran’s service-connected PTSD results in functional impairment, this impairment did not result in, or more nearly approximate, total occupational and social impairment for any distinct period. The evidence demonstrated that he was married to his spouse for decades prior to his death, and had good relationships with his sons. Accordingly, the Veteran’s level of symptomatology due to PTSD is consistent with a finding of, at most, occupational and social impairment with deficiencies in most areas, which warrants a 70 percent rating. The evidence of record does not show total occupational and social impairment; thus, the Board finds that the criteria for the maximum 100 percent rating have not been met for any distinct period throughout this appeal. Id.; see Fenderson v. West, 12 Vet. App. 119, 126 (1999). REASONS FOR REMAND The VA examinations provided to the Veteran assessed several, but not all, of this claimed disabilities. None of these examinations addressed whether any of the found disabilities was etiologically related to his presumed in-service exposure to an herbicidal agent. See Combee v. Brown, 5 Vet. App. 248 (1993). As such, a remand is required in order to obtain an opinion. The RO did not obtain an opinion with respect to the issue of entitlement to service connection for the cause of the Veteran’s death. In order to comply with its duty to assist, VA must obtain a medical opinion when such opinion is “necessary to substantiate the claimant’s claim for a benefit.” DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Additionally, the issue of entitlement to special monthly compensable based on Aid and Attendance or due to housebound status is inextricably intertwined with the other claims being remanded herein. As such, remanding it for contemporaneous consideration is warranted. The matter is REMANDED for the following action: 1. Request that the Appellant submit or identify any relevant not already associated with the claims file. Undertake efforts to obtain evidence from the identified sources. 2. Obtain a supplemental opinion from a VA examiner regarding the Veteran’s hypertension, enlarged prostate, bilateral upper and lower extremity peripheral neuropathy. The Veteran’s electronic claims file must be made available to and reviewed by the examiner. The examiner is then asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that these disabilities were incurred in or due to the Veteran’s active duty, to include as due to exposure to an herbicidal agent. For purposes of this examination, the examiner should assume that the Veteran was exposure to herbicidal agents during his active duty. A thorough rationale should be provided for all rendered opinions. 3. Obtain an opinion from an VA neurologist with respect to the Veteran’s claimed Parkinson’s disease, alternatively diagnosed as orthostatic tremors with Parkinsonian symptoms and multi-system atrophy. The Veteran’s electronic claims file must be made available to and reviewed by the examiner. The examiner is then asked to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s claimed disability is diagnosable as Parkinson’s disease. In so doing, the examiner is asked to discuss whether this disability is one of the causes of the Veteran’s death, as they listed on his death certificate. Regardless of the diagnosis (i.e., positive or negative), the examiner is asked to opine as to whether it is at least as likely as not that the Veteran’s claimed disability was incurred in or due to his active duty service, to include as due to exposure to an herbicidal agent. If yes, the examiner is asked to opinion whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral upper and bilateral lower extremity peripheral neuropathy is caused or aggravated by this disability (however diagnosed), to include any medication prescribed for treatment. For purposes of this opinion, the examiner is asked to assume that the Veteran was exposed to herbicidal agents during his active duty. A thorough rationale should be provided for all rendered opinions. 4. Obtain an opinion from a VA examiner regarding the Veteran’s cause of death. A copy of this remand and the electronic claims file must be made available to and reviewed by the VA examiner, including the Veteran’s available service treatment and personnel records and post-service treatment records. The examiner is asked to opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s cause of death was incurred or due to his active service, to include as due to exposure to an herbicidal agent. If not, the examiner must then opine as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that any service-connected disability: (i) contributed substantially or materially to cause his death; (ii) combined to cause his death; OR (iii) aided or lent assistance to the production of his death. In so doing, the examiner is advised that the causes of death are listed as “failure to thrive” and “Alzheimer’s   dementia.” A thorough rationale should be provided for any rendered opinion. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Pflugner, Counsel