Citation Nr: 20003307 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-46 176A DATE: January 14, 2020 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for post-traumatic stress disorder (PTSD), alcohol use disorder and heroin use disorder (remission) (collectively herein PTSD) effective December 12, 2014 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a disability rating for bilateral hearing loss in excess of 10 percent prior to September 6, 2017, and in excess of 40 percent thereafter, is denied. Entitlement to an effective date earlier than December 12, 2014 for the establishment of service connection for PTSD is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. 2. Prior to September 6, 2017, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level V in the left ear. 3. Since September 6, 2017, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level VII in the right ear and no worse than Level VIII in the left ear. 4. In June 2010, the Veteran filed a claim for entitlement to service connection for PTSD; a February 2011 rating decision denied the claim and the Veteran was notified by VA letter dated February 28, 2011. The Veteran did not appeal the February 2011 rating decision, nor did he submit new and material evidence within one year of the decision’s issuance. 5. In December 2014, the Veteran requested to reopen his claim for entitlement to service connection for PTSD; a July 2015 rating decision granted service connection for PTSD, effective December 12, 2014, the date of his claim to reopen. 6. VA received no correspondence indicating an intent to apply for compensation benefits for PTSD between February 2011 and December 2014. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no higher, for PTSD from December 12, 2014 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a disability rating for bilateral hearing loss in excess of 10 percent prior to September 6, 2017, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. 3. The February 2011 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The criteria for an effective date earlier than December 12, 2014, for the grant of service connection for PTSD, have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Marine Corps from August 1969 to August 1971, to include service in Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and July 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that although the RO and the Veteran characterized the issue of the Veteran’s combined rating as entitlement to an earlier effective date for total combined evaluation of 70 percent prior to September 6. 2017, what the Veteran essentially seeks is higher ratings for his service-connected disabilities in order to raise his total combined rating. This is essentially duplicative of the issues being adjudicated in this decision, as a veteran’s combined rating is dependent on the rating of each individual service-connected disability. Thus, the Veteran’s “whole body” rating argument is addressed in the decision below. To the extent the Veteran bases his argument on his service-connected PTSD, the argument is addressed in the discussion regarding his mental disability. A request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009) As the Veteran has contended that he is unemployable because of PTSD, the issue of entitlement to TDIU has been raised in the context of his appealed increased rating claim. The Board has added it to this appeal. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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. See 38 C.F.R. § 4.7. 1. Entitlement to an initial disability rating of 70 percent, but no higher, for PTSD. Service connection was granted for PTSD in a July 2015 rating decision, at 30 percent from December 2014. The Veteran appealed that initial rating, contending that his service-connected PTSD is more severe. In a September 2018 rating decision during the appeal, the RO increased the rating to 50 percent, effective September 6, 2017, thereby staging the Veteran’s rating. After a review of the evidence, both lay and medical, the Board finds that resolving all doubt in the Veteran’s favor, the Veteran’s PTSD symptoms more closely approximate a 70 percent rating for the entire appeal period. The Veteran’s PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted when there is 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 rating is warranted 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. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Veteran was afforded a VA PTSD examination in July 2015. The Veteran reported that he has been married 4 times, that all of his marriages ended in divorce, that he has no contact with any of his children but that he has a good relationship with his sister. The Veteran also reported that he had not worked in several years due to difficulty with irritability and anger while working. The July 2015 examiner noted that along with a depressed mood, anxiety, suspiciousness and chronic sleep impairment, the Veteran’s PTSD caused a persistent negative emotional state, hypervigilance, exaggerated startle response, problems with concentration and sleep disturbance. The examiner observed that the Veteran was alert and oriented and that his mood varied throughout the evaluation, from talkative and upbeat to noticeably depressed and tearful. The July 2015 examiner opined that the Veteran’s PTSD produces occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, and noted that the Veteran was capable of managing his financial affairs. The Veteran was afforded another VA PTSD examination in September 2017. The examiner noted the Veteran’s PTSD produces occupational and social impairment with reduced reliability and productivity. The Veteran noted difficulty getting along with supervisors and reported that he retired in approximately 2007 on the advice of his psychiatrist and therapist due to his escalated anger problems and as a way to decrease safety concerns for supervisors. The Veteran reported that he started drinking alcohol again 6 months prior as a result of increased depression. The examiner noted the Veteran’s PTSD caused the same symptomatology as in July 2015, and additionally caused disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. The September 2017 examiner observed that the Veteran presented as anxious and agitated as was evidenced by frequent stuttering, rocking and fidgeting. The examiner noted the Veteran was capable of managing his financial affairs. A review of the record reveals that the Veteran has received mental health treatment and medication through VA on a regular basis since August 2008. The Veteran’s mental health treatment records show that for the entire period on appeal, the Veteran has suffered episodes of anger and rage as a negative coping mechanism. See, e.g., July 2015 Letter from the Veteran’s therapist, May 2014, March 2015 and October 2016 Mental Health Outpatient Notes. In connection with the September 2017 PTSD examination, the Veteran reported that he is no longer invited to family gatherings due to anger. The treatment records also show that, with rare exception, the Veteran has consistently reported his mood as depressed. Additionally, the record reveals that the Veteran has consistently demonstrated an inability to establish and maintain effective relationships, as evidenced by four divorces and lack of contact with any of his six children. See, e.g., July 2015 Examination Report. The Board finds the Veteran’s mental health treatment records of approximately 10 years hold greater probative value than the July 2015 and September 2015 VA PTSD examinations, and further finds that the frequency, severity, and duration of the symptoms of his PTSD as noted above are equivalent to those required for a 70 percent rating for the entire appeal period beginning December 12, 2014. In particular, the medical evidence of record collectively indicates that the Veteran’s psychiatric pathology has been productive of symptoms resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, since December 12, 2014. Notably, throughout the appeal, the Veteran has argued that his symptoms warrant a 70 percent rating. Thus, this decision grants the rating that he has been seeking. For the sake of completeness, however, the Board finds that total occupational and social impairment has not been found at any time during the appeal. While the Veteran has severe symptoms, they do not rise to the level contemplated by the total rating, such 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, or other symptoms on par with the level of severity contemplated by those symptoms. 2. Entitlement to a disability rating in excess of 10 percent prior to September 6, 2017, and in excess of 40 percent thereafter, for bilateral hearing loss. Service connection was established for hearing loss in 1978 and assigned a non-compensable rating. In February 2013, the Veteran raised his claim for an increased rating. By rating decision in March 2014, the RO increased his rating to 10 percent. Within one year of that decision, in December 2014, the Veteran submitted an affidavit, referencing his hearing loss. The RO afforded the Veteran another examination and continued the rating in a July 2015 rating decision. The Veteran appealed that determination, after which time he was afforded yet another VA examination. By rating decision in September 2018, the RO increased his rating to 40 percent, effective the date of that examination, on September 6, 2017. Thus, the Veteran has staged ratings for his hearing loss. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI, VIA*, and VII. The assignment of disability ratings for hearing impairment is 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). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In the instant case, the Veteran was afforded a VA examination in February 2014. At such time, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 50 70 70 59 LEFT 50 70 80 75 69 Puretone test results were deemed valid. However, the examiner reported that the Veteran’s speech recognition ability could not tested because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make the combined use of puretone average and word recognition scores inappropriate. Regulations provide that Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of such issues, or when indicated under the provisions of § 4.86. As the puretone testing was deemed valid, but speech recognition testing was deemed inappropriate by the examiner, Table VIa is for application. Under that Table, the Veteran’s right ear warrants a IV designation and the left ear a V designation. This warrants the 10 percent rating assigned. The record contains documentation of a July 2015 examination; however, the response reliability was deemed poor and the tests deemed invalid for rating purposes. The Veteran was afforded another VA examination in September 2017. At such time, the Veteran’s puretone thresholds, in decibels, were as follows:   HERTZ 1000 2000 3000 4000 Average RIGHT 70 75 85 90 80 LEFT 65 80 95 100 85 The Veteran’s speech recognition ability was 76 percent in his right ear and 64 percent in his left ear. Under 38 C.F.R. § 4.85, this would result in a hearing level of V for the Veteran’s right ear and a hearing level of VIII for his left ear using Table VI. Under Table VII, hearing levels V and VIII correspond to a 30 percent rating. However, as noted above, 38 C.F.R. § 4.86(a) provides that when the puretone threshold at each of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the hearing level designation may be determined from either Table VI or Table VIA, whichever results in the higher numeral. As shown above, the Veteran meets this requirement in both ears, Table VIA is therefore applicable, and results in a hearing level of VII for the Veteran’s right ear and a hearing level of VIII for his left ear. Under Table VII, hearing levels VII and VIII correspond to a 40 percent rating. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, 3 Vet. App. 345, 349 (1992). In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional or, that are not otherwise contemplated by the assigned evaluation. Thus, his complete bilateral hearing disability picture is compensated under the rating schedule. Accordingly, based on the evidence of record, the Board finds that the currently assigned 10 percent prior to September 6, 2017, and 40 percent, assigned thereafter, are the appropriate ratings for the severity of the Veteran’s service-connected hearing loss. Earlier Effective Date 3. Entitlement to an effective date earlier than December 12, 2014 for the establishment of service connection for PTSD. The Veteran seeks an earlier effective date for the grant of service connection for PTSD. For the reasons that follow, the Board finds that an earlier effective date is not warranted. Generally, the effective date of an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found but shall not be earlier than the date the claim to reopen was received, or the date entitlement arose, whichever is later. See id.; 38 C.F.R. § 3.400(r). The Veteran applied for service connection for PTSD in June 2010. In a February 2011 rating decision, the RO denied service connection and notified the Veteran by letter dated February 28, 2011. A claimant has one year from notification of the RO decision to initiate an appeal by filing a notice of disagreement (NOD), and the rating decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.160(d)(1), 20.302(a). The Veteran did not appeal the denial of service connection within one year of the February 28, 2011 notification letter. Nor did he submit new and material evidence within one year of the denial, sufficient to keep the original claim open. Therefore, the rating decision became final on February 28, 2012. In December 2014, the Veteran requested to reopen his claim for entitlement to service connection for PTSD. This is the first correspondence from the Veteran referencing an intent to apply for benefits for PTSD since his prior claim was denied. The RO granted service connection in a July 2015 rating decision, specifying an effective date of December 12, 2014, the date VA received the Veteran’s request to reopen the claim. The Veteran filed a timely NOD in September 2015, in which he requested an earlier effective date and this appeal ensued. After a full review of the record, the Board finds that the Veteran did not perfect a timely appeal to the initial denial of entitlement to service connection for PTSD. He had until one year after the February 28, 2011 notification letter to submit an NOD. He did not do so, nor submit new and material evidence sufficient to reopen the previously denied claim. Therefore, the prior decision became final. The Board has considered the Veteran’s contentions that the existence of his PTSD symptomatology was present at the time of the February 2011 rating decision and was, in fact, the basis of a claim for disability benefits in 1992. Notably, the record does not contain a claim for PTSD (or any other disability) in 1992. Regardless, the relevant regulation provides that any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application, which here was received December 12, 2014. 38 C.F.R. § 3.400. Although the Board does not doubt that the Veteran experienced symptoms of PTSD prior to December 2014, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). Consequently, there is no legal basis upon which to grant an effective date prior to December 12, 2014 for the grant of service connection for PTSD. REASONS FOR REMAND Entitlement to a TDIU. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, the VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. Including the increase granted in this decision, the Veteran is currently service-connected for PTSD, rated at 70 percent disabling from December 12, 2014; bilateral hearing loss, rated at 10 percent prior to September 6, 2017, and 40 percent disabling thereafter; and tinnitus, rated at 10 percent disabling from February 12, 2013. His combined rating throughout the appeal is 80 percent. Thus, the Veteran has met the schedular requirements for a TDIU as of December 12, 2014. However, the record does not contain sufficient evidence of the Veteran’s work history, education, and training to determine whether the Veteran’s service-connected disabilities render him unemployable. The Board notes that the VA Form 21-8940 is designed to elicit information including dates of employment, type of work, reason for leaving employment, education and training, and the disabilities the Veteran believes prevents his employment but the claims file here does not contain a VA Form 21-8940. The information reflected in this form would aid VA adjudicators in determining whether a TDIU is warranted by revealing the extent of the Veteran’s education, his employment history, and the occupational limitations presented by his service-connected disabilities. Accordingly, on remand, the RO should send the Veteran a VA Form 21-8940 with instructions to complete. The matters are REMANDED for the following action: Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of his TDIU claim. If the Veteran provides a completed VA Form 21-8940, the AOJ should complete any additional development prompted by the information on the completed form. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.