Citation Nr: 18157608 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-42 276 DATE: December 13, 2018 ORDER An initial compensable rating for bilateral hearing loss is denied. An initial rating in excess of 30 percent for a psychiatric disorder, characterized as adjustment disorder with depressed mood, is denied. REMANDED Entitlement to a rating in excess of 20 percent for nonunion of the left ulnar styloid is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to service connection for a right wrist disorder, not including carpal tunnel syndrome, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s psychiatric symptoms have been characterized by such symptoms as depression, anxiety, irritability, sporadic panic attacks, and sleep impairments. Moreover, 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 or impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships, have not been shown. 2. The Veteran’s bilateral hearing loss has been manifested by no worse than Level II impairment in both ears. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for a psychiatric disorder, characterized as adjustment disorder with depressed mood, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9440. 2. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to January 1981. In September 2017, the Board remanded the issues on appeal in order to obtain all outstanding medical treatment records and to provide the Veteran with new VA examinations. To the extent that the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Regional Office (RO) obtained all outstanding, relevant, and available medical records. Further, the Veteran was provided with VA examinations in December 2017. However, while the Veteran asserts that his examinations were inadequate, the Board finds that the examiner reviewed the Veteran’s past medical history, recorded his current complaints and history, conducted appropriate evaluations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Accordingly, the VA examination reports are adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). In October 2018, the RO awarded service connection for left carpal tunnel syndrome. As such, this issue is no longer on appeal. Increased Rating The Veteran is seeking an increased rating for his service-connected psychiatric disorder and bilateral hearing loss. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Further, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 30 percent for a psychiatric disorder, characterized as adjustment disorder with depressed mood Throughout the period on appeal, the Veteran has been assigned a 30 percent rating for a psychiatric disorder, characterized as s adjustment disorder with depressed mood, under 38 C.F.R. § 4.130, Diagnostic Code 9440. For the next-higher 50 percent rating, the evidence must show occupational and social impairment with reduced reliability and productivity due to symptoms such 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 or impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships. Based on the evidence of record, a rating in excess of 30 percent is not warranted. Indeed, although the Veteran has occasional symptoms that could support a higher rating, the Veteran’s symptoms do not on balance cause occupational and social impairment with reduced reliability and productivity due to these symptoms. Moreover, the Veteran’s objectively observable symptoms do not manifest as impaired judgment or impaired abstract thinking, stereotyped speech, difficulty in understanding complex tasks, or impairment of memory to a level that a 50 percent rating would be warranted. Specifically, in a January 2014 treatment evaluation, the Veteran displayed symptoms consistent with a 30 percent rating, such as depression and anxiety. He appeared to be well groomed with good hygiene, “bright, calm,” and alert/oriented in all spheres. His speech and thought process were normal with “fair” insight and judgment. Although the Veteran exhibited symptoms of excess worry, such as “being potentially attacked by rednecks,” there was no evidence of a thought disorder, psychosis, suicidal ideations, significant memory impairment, or panic attacks. Further, the Board observes that while the Veteran’s September and October 2014 treatment records reflect that the Veteran reported increased sleep issues, irritability, and anger, his overall psychiatric symptoms remained consistent with a 30 percent rating. Of note, the Veteran was pleasant, cooperative, and exhibited linear and goal directed thoughts. There was no evidence of a psychosis, suicidal ideations, or a thought disorder. This Veteran’s symptoms appeared to improve, or at the very least, continued to be relatively consistent with a 30 percent rating in December 2014, where at a VA examination he only presented with symptoms of depression. The Board observes that while the Veteran was depressed due to his hand injury, he was alert, oriented, and had clear goal directed thoughts. Further, there was no evidence of abnormal speech or thought process, impaired judgment, difficulty understanding complex commands, impaired memory, disturbances in motivation or mood, or difficulties in establishing effective work and social relationships. As such, the examiner opined that although a psychiatric condition has been formally diagnosed, his symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In a May 2017 treatment evaluation, the Veteran reported experiencing an acute panic attack. However, there was no evidence of reoccurring panic attacks. Moreover, while he also endorsed symptoms of anxiety, the Veteran did not have any symptoms of a thought disorder, psychosis, memory impairment, or impaired judgment. Additionally, the Veteran’s most recent December 2017 VA examination indicates that his overall psychiatric symptoms were improving. Specifically, the Veteran only presented with a depressed mood. His grooming and hygiene were noted to be “good.” His affect, speech, mood, and thought process were all normal. He also did not exhibit any short and long-term memory impairments. Moreover, there was no evidence of suicidal/homicidal ideations, psychosis, thought disorder, abnormal speech, and/or impaired judgement/thinking. As a result, the examiner opined that although a psychiatric condition has been formally diagnosed, his symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Therefore, in view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 30 percent. Of note, although the Veteran may exhibit some symptoms of a higher rating, including anger, irritability, and some panic attacks, a holistic review of the Veteran’s symptoms, such as normal speech, thought process, judgment, and insight, without any signs of panic attacks, significant memory impairment, a psychosis, suicidal ideations, or thought disorder, demonstrate that his symptoms are better categorized by the 30 percent rating he currently receives. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115-17 (Fed. Cir. 2013). Indeed, some of the symptoms listed in the diagnostic code for a higher rating have not been shown at all. 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 occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause social impairment with reduced reliability and productivity. In this regard, it is clear that the Veteran’s disorder reflects some impact on his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted. Specifically, as reflected in the medical evidence, including the December 2014 and December 2017 VA examinations, the Veteran is married and lives with his children. Further, it appears he has a close relationship with his children and mother. Moreover, while the Veteran previously worked for Chrysler until 2008/2009, and is currently receiving social security disability, there is not sufficient evidence to demonstrate that his psychiatric disorder causes occupational impairment to warrant a higher rating. As such, his level of social and occupational impairment does not cause reduced reliability and productivity even when factoring in other relevant criteria outside of the rating code. See Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). 2. Entitlement to an initial compensable rating for bilateral hearing loss In this case, the Veteran’s bilateral hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, DC 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. Additionally, the schedule considers the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). After a review of the record, the Board determines that a compensable rating is not warranted at any point during the period on appeal. Specifically, at a VA examination in August 2015, the Veteran stated that he has difficulty hearing his wife’s voice. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: Tonal Thresholds (In Hertz) 1000 2000 3000 4000 Average Right 10 10 15 10 11 Left 15 15 20 20 18 Speech audiometry revealed speech recognition ability of 88 percent in both ears, respectively. Applying these values to Table VI, the Veteran exhibits Level II hearing loss in both ears. Therefore, when applying these levels to Table VII, a compensable rating is not warranted. Similarly, at a VA examination in December 2017, the Veteran stated that he continues to have difficulty hearing and is unable to hear people. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: Tonal Thresholds (In Hertz) 1000 2000 3000 4000 Average Right 25 20 20 35 25 Left 25 20 30 40 29 Speech audiometry revealed speech recognition ability of 92 percent in his right ear and 88 percent in his left ear. Applying these values to Table VI, the Veteran exhibits Level I hearing loss in his right ear and Level II hearing loss in his left ear. Therefore, when applying these levels to Table VII, a compensable rating is not warranted. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his psychiatric and hearing loss disabilities are worse than the ratings 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, such as a decreased sensation in hearing, anxiety, depression, depression and other psychiatric 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 service-connected disabilities 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 service-connected disorders have 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 this disability is evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995) REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for nonunion of the left ulnar styloid is remanded. 2. Entitlement to service connection for right carpal tunnel syndrome is remanded. 3. Entitlement to service connection for a right wrist disorder, not including carpal tunnel syndrome, is remanded. As discussed, the Board previously remanded these issues for a new VA examination. Of note, the Board instructed the examiner to render opinions regarding the current nature and severity of the Veteran’s service-connected left wrist disability. However, while the Veteran’s left ulnar disability is rated under DC 5211, the December 2017 examiner did not specifically address or discuss the level of impairment to the Veteran’s left ulna, including whether or not there was nonunion of the ulnar joint, and if so, if there was loss of bone substance. As such, a new examination is necessary. See Stegall, 11 Vet. App. 268; Dyment, 13 Vet. App. At 146-47 (1999); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, with respect to the Veteran’s right wrist disorder, while the December 2017 VA examiner (including in the corresponding September 2018 addendum) opined that the Veteran’s right hand disorder, to include carpal tunnel and degenerative arthritis, were not related to service or caused by his service-connected left wrist disabilities, the examiner did not offer any opinions as to whether his right wrist disorders were aggravated by his left wrist disabilities – as specifically requested by the Board in its prior Remand. As such, these opinions are inadequate and a new opinion is necessary to determine if the Veteran’s right wrist disorders are related to service, to include aggravated by a service-connected disability. See Stegall, 11 Vet. App. 268; see also Nieves-Rodriguez, 22 Vet. App. 295; Barr, 21 Vet. App. at 312. 4. Entitlement to TDIU is remanded. As for the Veteran’s TDIU claim, the Board is unable to adjudicate this claim until the above development is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in Detroit, Michigan since October 2017, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, she should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left ulnar styloid disability, to include whether or not there was nonunion of the ulnar joint, and if so, if there was loss of bone substance. The examiner must also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed right wrist disorder, to include carpal tunnel and degenerative joint disease, is etiologically related to the Veteran’s period of service, to include as secondary to and/or aggravated (i.e., worsened) by his service-connected disabilities. Importantly, the Board is specifically requesting that the VA examiner address and discuss if the Veteran’s right wrist disorders, to include carpal tunnel and degenerative joint disease, have been permanently worsened beyond their nature progression as a result of his service-connected left wrist disabilities. In rendering an opinion, the examiner must consider all relevant statements from the Veteran, including the fact that he had to use his right hand more in his post-service occupation due to his left wrist disabilities. The claims file must be reviewed, including the new records and such review should be noted in the opinion. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel