Citation Nr: 1824633 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 14-34 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to April 1972. This case comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In its decision, the RO granted service-connected compensation for PTSD and assigned an initial disability rating of 50 percent. The RO denied service connection for a bilateral hearing loss disability while granting a claim for service connection for tinnitus, assigning an initial 10 percent rating for the latter. The Veteran timely appealed the denial of service connection for hearing loss and the denial of a higher rating for PTSD. In February 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. Throughout the relevant appeal period, the symptoms of the Veteran's service-connected psychiatric disorder have most closely approximated occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas is not shown. 2. The evidence is approximately evenly balanced as to whether the Veteran's current bilateral hearing loss disability is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Codes 9310, 9434. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Because the Board is granting service connection for a bilateral hearing loss disability, further discussion of the VCAA with respect to that claim is unnecessary. As for the claim for an increased rating for PTSD, the requirements of 38 U.S.C. §§ 5103 and 5103A have been met. Duty to Notify The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notice VCAA requires depends on the general type of claim the Veteran has made. "As a result, generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating." Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran's increased rating claim arises from his disagreement with the disability rating assigned after VA granted service connection for PTSD. Because the claim for service connection was granted, the claim is substantiated, additional notice is not required, and any prior defect in the notice is not prejudicial. See Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003. VA's General Counsel has determined that while VA is required to issue a statement of the case when a "downstream element" - such as disagreement with the initial assigned disability rating - arises after the initial adjudication of a claim, 38 U.S.C.A. § 5103(a) does not require the mailing of a separate notice concerning the information and evidence necessary to substantiate the newly raised issue. Id. Duty to Assist VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service VA treatment records, and lay statements have been associated with the record. The duty to assist often requires VA to arrange for an examination or obtain a medical opinion. The Veteran in this case was given the opportunity for a mental health examination, but he declined. The record includes a written summary of a conversation between the Veteran and an RO employee in June 2013. The Veteran informed the RO that he did not want to experience the emotional impact of explaining the details of his in-service stressors to a VA examiner a second time. Instead, he submitted a report from a psychologist in private practice. Because the increased rating issue in this appeal comes to the Board from the RO's decision to grant an original compensation claim, the result of the Veteran's decision to decline the opportunity for an examination is that the claim, "shall be decided based on the evidence of record. 38 C.F.R. § 3.655(b) (2017). As the Veteran has not identified additional evidence pertinent to the issue on appeal and as there are no additional records to obtain, no further assistance is required to comply with the duty to assist. II. Increased Rating for PTSD Rating Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO assigned the current 50 percent rating for major depressive disorder under 38 C.F.R. § 4.130, Diagnostic Code 9434. These criteria authorize a 50 percent rating 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 effective work and social relationships. 38 C.F.R. § 4.130. A higher 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 worklike setting); inability to establish and maintain effective relationships. Id. A 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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 evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. Factual Background According to his certificate of discharge from active duty (Form DD-214), the Veteran's military occupation specialty was combat engineer. Military personnel records confirm that he was deployed to Vietnam. Based on the Veteran's credible statements about several stressful events in Vietnam, the RO granted service connection for PTSD and assigned a 50 percent rating. In July 2012, the Veteran was examined by a psychologist in private practice. In his subsequent report, the psychologist made a diagnosis of PTSD. The report indicated that, after his discharge from the Army, the Veteran briefly worked selling fire alarms and then worked for many years as an aircraft mechanic. According to the Veteran, his PTSD symptoms did not affect his career for many years, until 2011, when he took a job as an aviation safety inspector for the Federal Aviation Administration (FAA). During the training sessions for his new job, the Veteran had occasion to examine the photographs of the wreckage left behind after airplane crashes, which including photographs of dead human bodies. The Veteran told his psychologist that this experience coincided with an intense recollection of disturbing images from Vietnam. In his interview with the psychologist, the Veteran described his feelings as an out-of-body experience that "really shook me." According to the psychologist, the Veteran's PTSD symptoms included intrusive memories of stressful events in Vietnam and frequent trouble sleeping. The psychologist described heightened vigilance and difficulty concentrating on work. In his interview with the psychologist, the Veteran reported feelings of extreme frustration and anger when he loses games of table tennis or gold. As a result of his symptoms, the Veteran also said that he avoids large crowds. In the opinion of the psychologist, the Veteran's symptoms met the criteria for a 50 percent rating. Although the psychologist's opinion on this matter is relevant, his application of the legal rating criteria is not binding on the Board. Following this conclusion, the psychologist's report includes equivocal language suggesting that, perhaps, an even higher rating might be appropriate: "I think he qualifies for at least 50% disability, and probably more, because of the following symptoms related to the respectively numbered criteria directly above: (1) He has had major difficulties with his last two employers because of his continual circumlocution in speaking. They have a hard time understanding him, and by the time they're able to ask him to clarify he is off on another topic; furthermore, he states, he speaks in a rather flat tone that is off-putting. (2) He gets a racing heartbeat and feelings of fear and panic 'out of nowhere' and when [he] needs to deal with aircraft malfunctions and accidents, and especially pictures thereof, he gets such a strong emotional response he must turn away." The psychologist reported problems with the Veteran's short-term memory - e.g., he sometimes leaves his car running in his driveway. Due to his forgetfulness, the Veteran missed several deadlines at work. The Board has reviewed the post-service VA treatment records, but none of these relate to his mental health symptoms. The Veteran did, however, receive counseling from a Vet Center and authorized the RO to obtain these records. These records indicate that the Veteran attended several group therapy sessions, mostly in January and February of 2012. Notes concerning the Veteran's initial patient assessment, in December 2011, described him as "calm, stable, alert and oriented." According to this note the Veteran "spoke clearly and good eye contact was made when speaking." The counselor described his mental status as within normal limits and there was no suicidal or homicidal ideation. Records from January 2012 described the Veteran as having appropriate speech and normal memory. He did not display disorganized thinking and he experienced no delusions or hallucinations. According to a separate note, also from January 2012, the Veteran reported sleep problems and anger. The note described him as "able to cope well until more recently when laid off when his [symptoms] seemed to get more intense." The Veteran consistently denied suicidal and homicidal ideation throughout his counseling and group therapy sessions. In mid-January 2012, the Veteran said he had difficulty remembering some things about Vietnam. In early February 2012, the Veteran said he "was doing ok" and that he was trying to get in touch with other former soldiers who served with him in Vietnam. In late February 2012, the Veteran's mood was described as "neutral"; his speech was clear; and his mental status was within normal limits. Subsequent notes, from April 2012, indicated that the Veteran stopped attending therapy sessions at the Vet Center because he was not comfortable being around some of the other veterans. He was told that he was welcome to contact the staff at the Vet Center if he wanted to resume counseling services. This note described the Veteran's prognosis as "fair because he is intelligent and keeps busy." The most recent available information concerning the severity of PTSD symptoms comes from the February 2012 hearing transcript. At the beginning of his testimony, the Veteran responded affirmatively when his representative asked him if he had displayed inappropriate behavior or represented a persistent danger of hurting himself or others. After further questioning on these topics, however, the Veteran said, "I don't feel I'm at a threat of hurting myself or others. The physical manifestation of my - I would rather call it despair. It is just depression that I see it coming and I know how to execute some cognitive behavioral techniques to avoid it and I know that it typically lasts X hours and avoid any triggers." The Veteran also gave the following responses to questions about feelings of being disoriented: Q: Okay. There was some talk about disorientation. Do you ever feel like you're disoriented and if so, in what ways? A: No. The disorientation is if I'm having a nightmare and I wake up, it is going to take me five, ten seconds to remember where I'm at. At the time of the hearing, the Veteran said that he was employed again as an engineer. Analysis Having considered the evidence, the Board finds that the Veteran's symptoms most closely approximate the regulatory criteria for the currently assigned 50 percent rating. According to the July 2012 psychologist's report, the most frequently experienced symptoms of PTSD were sleep disturbance and intrusive memories. The psychologist's application of the diagnostic criteria for PTSD indicates that intrusive memories are part of any PTSD diagnosis. Chronic sleep impairment is among the regulatory criteria for a 30 percent disability rating. See 38 C.F.R. § 4.130. In posing her questions to the Veteran, his representative suggested that a higher rating would be appropriate based on "inappropriate behavior" and due to the "persistence of possibly hurting yourself or others?" In his detailed testimony, however, the Veteran undermined this suggestion. Indeed, he expressly denied that he presented a threat of hurting himself or others, which is consistent with the Vet Center counseling records, which note consistent denials of suicidal or homicidal ideation. "Grossly inappropriate behavior" is among the criteria for a higher 100 percent rating. Id. But the July 2012 psychologist's report and the Vet Center records describe the Veteran as polite and cooperative. He maintained adequate personal hygiene. And the Veteran's hearing testimony does not provide any specific examples of inappropriate behavior. The psychologist's report described statements from the Veteran, in which he said that he sometimes becomes unreasonably angry if he loses a game of golf or table tennis. But he told the psychologist that he would apologize when this happens. The Board finds that this does not amount to "grossly inappropriate behavior" as that term is used in the rating criteria. The private psychologist delivered a tentative conclusion, suggesting that, in his opinion, the currently assigned 50 percent rating is appropriate, but a higher rating might be warranted based on the "continual circumlocution in speaking." But "circumstantial, circumlocutory, or stereotyped speech" is one of the criteria contemplated by currently assigned 50 percent rating. According to the Vet Center counseling notes, the Veteran "spoke clearly and good eye contact was made when speaking." There is no evidence that the Veteran's PTSD has ever caused him to experience suicidal or homicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; or near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. The symptoms described in the counseling records and in psychologist's report note memory loss. But "impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks)" is among the criteria for a 50 percent rating and is a better description of the Veteran's description of his memory loss - i.e., forgetting that he left the car engine running in the drive way than "memory loss for names of close relatives, own occupation, or own name" which are among of the criteria for a 100 percent rating. The claimant has the burden of proving, at least to an equipoise standard, all of the requirements of his claim. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Because the preponderance of the evidence weighs against the finding that the Veteran's PTSD symptoms more closely approximate the criteria for a disability rating in excess of 50 percent, the claim for an increased rating must be denied. III. Service Connection for Bilateral Hearing Loss Impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of those frequencies are 26 decibels or greater; or when the Veteran's speech recognition scores on the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. According to the results of the January 2013 VA audiological examination, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 65 60 65 LEFT 25 25 40 60 65 His Maryland CNC speech recognition scores were 80 percent in the right ear and 92 percent in the left ear. These results satisfy the criteria for establishing a current disability in both ears. The Veteran attributes his hearing loss to several events during his deployment to Vietnam involving exposure to loud noise. According to the Veteran, he was sleeping when an enemy mortar shell exploded close to the door to his room. He also described exposure to the noise of loud construction machinery, during the course of his duties as a combat engineer, and his exposure to the sound of rifle and machinegun fire. Acoustic trauma due to combat or other loud noise has been accepted as satisfying the in-service disease or injury element of a claim for service-connected hearing loss. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (sound of mortars firing); Hensley, 5 Vet. App. at 159 (jet aircraft noise). For these reasons, the Board concludes that the Veteran sustained an injury during his military service. The third and last element of the Veteran's claim for service connection is the existence of a causal link - or "nexus" - between acoustic trauma in Vietnam and the present hearing loss. The RO requested an opinion about this issue from the January 2013 audiologist, who opined that, in her opinion, the Veteran's hearing loss was not related to service. The examiner based this opinion on the fact that service treatment records - both before and after service - included auditory threshold test results which were within normal limits. Both in Hensley, 5 Vet. App. at 159 and in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the U.S. Court of Appeals for Veterans Claims (Court) found that the absence of hearing loss disability in service is not necessarily fatal to a claim for compensation for post-service hearing loss disability. The Veteran's combat service is also significant in resolving the issue of service connection for right ear hearing loss disability. According to 38 U.S.C. § 1154(b), when a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service-connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service . . ." Id. Section 1154(b)'s presumption may be rebutted only by clear and convincing evidence. Id. The claimant in Reeves presented evidence, in the form of his own statements and statements of his fellow soldiers, that he suffered hearing loss while firing a mortar during the Second World War. See Reeves, 682 F.3d at 990. After a long procedural history before the Board and the Court, the Federal Circuit clarified how the combat presumption of 38 U.S.C. § 1154(b) should be applied. The Federal Circuit rejected the argument that the Board had no need to apply the combat presumption because the Board had agreed with the claimant that he suffered acoustic trauma in service. Rather, the Board was "required to apply the section 1154(b) presumption to the separate question of whether he also suffered permanent hearing loss while on active duty. In short, although the record contained evidence of the cause of Reeves' disability - acoustic trauma from mortar blasts . . . he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service." Id. at 999 (emphasis in original). Under the analysis used in Reeves, the combat presumption of section 1154(b) applies not only to prove that the Veteran was exposed to acoustic trauma in Vietnam, but also that he incurred his current hearing loss disability during his service in Vietnam. Of course, the combat presumption is rebuttable and there is evidence in the record in tension with the Veteran's account of the origins of his right ear hearing loss. As noted by the examining audiologist, auditory threshold test results from March 1972 were within normal limits. This issue would involve a closer question - perhaps requiring a remand for a new medical opinion - if the combat presumption did not apply to this case. Because the combat presumption applies, however, the Board must grant the claim in the absence of clear and convincing evidence that the Veteran's hearing loss disability was not incurred in service. See 38 U.S.C. § 1154(b). Under these circumstances, it is significant that the January 2013 examining audiologist opined that the Veteran's post-service tinnitus was related to acoustic trauma in service. The Veteran has also credibly testified that he "religiously" wore hearing protection during his post-service employment and, during his service in the Army, hearing protection was not provided. Although the examiner's opinion on tinnitus does not directly bear on the hearing loss issue, her conclusion suggests the opinion of an expert that a significant and lasting injury to the ears took place during active duty service. When considered together with the combat presumption and the frequently observed correlation between tinnitus and hearing loss, this opinion weighs in favor of the Veteran's claim. Under these circumstances, the precise cause of the Veteran's bilateral ear hearing loss may never be known with certainty. The Board therefore finds that the evidence is approximately evenly balanced as to whether the Veteran's current bilateral hearing loss disability is the result of in-service noise exposure. By law, the doubt resulting from this relative equipoise in the evidence is resolved in The Veteran's favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). ORDER Entitlement to an initial evaluation in excess of 50 percent for PTSD is denied. Entitlement to service connection for a bilateral hearing loss disability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs