Citation Nr: 18153024 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 17-64 854 DATE: November 27, 2018 ORDER A compensable rating for bilateral hearing loss is denied. A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran has had no worse than Level II hearing loss in either his left or right ear, with no exceptional patterns of hearing impairment. 2. The Veteran’s PTSD has manifested through occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking or mood, due to such symptoms as: hallucinations, difficulty in adapting to stressful circumstances (including work or a work like setting), and the inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from April 1967 to April 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO denied TDIU in a May 2013 rating decision, and the Veteran did not appeal that issue. However, the issue of TDIU is part and parcel of a claim for a higher evaluation, and the Veteran has asserted that his PTSD causes his inability to work. See Rice v. Shinseki, 22 Vet. App. 447, 454–55 (2009). Therefore, the issue of the Veteran’s entitlement to TDIU is properly before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage is based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 1. Entitlement to a compensable rating for bilateral hearing loss. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85–4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. §4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average pure tone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. §§ 4.85, 4.86. When the pure tone threshold at each of the four specified frequencies (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). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment in either ear. See 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. See 38 C.F.R. §§ 4.85, 4.86. The Veteran has been assigned a noncompensable rating for the period on appeal. The Board has reviewed the evidence, and finds that the Veteran’s bilateral hearing loss disability does not warrant a higher rating, as discussed below.   The Veteran underwent a VA examination in September 2014, and his results were as follows: Right Ear 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 20 15 20 40 55 50 50 Left Ear 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 30 20 20 45 50 55 50 The pure tone average in the right ear was 33 decibels and 34 decibels in the left ear. Speech recognition scores were 94 percent in both ears. In both ears, he had Level I under Table VI. 38 C.F.R. § 4.85, Table VI, VIA. Applying Table VII, DC 6100, this equates to a noncompensable rating.   In October 2017, the Veteran underwent another VA examination, and his results were as follows: Right Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 30 20 20 45 55 60 60 Left Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 30 20 20 45 55 55 55 The pure tone average in the both ears was 35 decibels. Speech recognition scores were 84 percent in both ears. Using Table VI, the Veteran has Level II in both ears. Applying Table VII, DC 6100, this equates to a noncompensable disability rating. The Board acknowledges the Veteran’s statements and testimony regarding his hearing loss. Specifically, he reports that he is only able to fully understand what is being said when he is able to watch the individual’s mouth move. The Board notes that the Veteran is competent to report these symptoms, and the Board also finds him credible, as the statements on these points are consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA’s rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the lay subjective reports of a more severe degree of disability because they directly address the rating criteria for the Veteran’s hearing loss. The Board notes that VA’s Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that “the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). Accordingly, this claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against a compensable rating. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to an increased rating in excess of 50 percent for PTSD. VA received a claim for increased compensation for the Veteran’s service-connected PTSD in May 2014. He indicated that this service-connected worsened since the last evaluation. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). 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 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442–43 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decreases 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). A 50 percent rating is warranted if the disability is productive of 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. A 70 percent rating is warranted for 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. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in May 2018 so it was pending before AOJ on August 4, 2014. As such, the DSM-5 applies and the GAF scores will not be considered. The Veteran underwent a VA examination for his PTSD in September 2014. He had occupational and social impairment with reduced reliability and productivity. He reported a good spousal relationship, a poor relationship with his son, and fair relationships with his daughters. He explained that he was isolated outside of his immediate family. He also asserted that he was unable to work because of his decline in concentration. During the examination, the Veteran reported that he has had delusions in the past that would occur approximately twice per month. His symptoms included depression, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining work and social relationships. No suicidal or homicidal ideations were recorded at this examination. In October 2017, an additional VA examination was performed for the Veteran’s PTSD. Occupational and social impairment with reduced reliability and productivity was reported. His relationship improved with his daughters, and his relationships with his spouse and son remained constant. In the examination, the examiner recorded that the Veteran retired in 2008 because he was unable to perform the long hours and/or work six days per week. His symptoms included: anxiety, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. He was casually dressed, cooperative, calm, had congruent affect, and denied suicidal and homicidal ideations. The Veteran’s medical records also document hallucinations. His more recent records show that he denies auditory or visual hallucinations. Additionally, the Veteran uses an emotional support animal which helps to reduce his anxiety, and his records show consistent denials of both suicidal and homicidal ideations. After review of the competent and probative evidence, the Board finds that a rating of 70 percent, but no higher, for the Veteran’s PTSD is warranted. He had documented difficulty with work because of stress and his inability to handle the work load. The Veteran has some social support from his spouse as well as his two daughters. However, he remains socially isolated, and he reports that he rarely leaves his home. He asserts that he experiences near continuous panic and depression. Yet, the Veteran has consistently denied both suicidal and homicidal ideations. Additionally, the Board notes that the Veteran has a history of visual hallucinations, and he has previously reported monthly hallucinations. Although he has recently denied hallucinations, the Board finds that when resolving reasonable doubt in favor of the Veteran that his history of hallucinations, coupled with his other PTSD symptoms, warrant a rating of 70 percent. Therefore, after looking at the totality of the Veteran’s PTSD disability picture, the Board finds that the preponderance of the evidence warrants a rating of 70 percent, but no higher. As noted above, he does have some social support so the evidence weighs against a finding of total social impairment. As such, the next-higher and maximum schedular rating is not warranted. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a total rating based on individual unemployability is remanded. The issue of entitlement to TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 477. A May 2013 rating decision denied TDIU. The Veteran did not file a NOD as to this issue. Nevertheless, in a 2018 statement, the matter of TDIU was raised in connection with the PTSD increased rating claim. As such, the Board finds that the TDIU must be appropriately developed to ascertain the current employment history of the Veteran. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include all recent VA records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his updated employment history and his educational background for proper adjudication of this claim. His prior 21-8940 indicated that he stopped working in 2007, but recent statements indicate he stopped working in 2010. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel