Citation Nr: 20007012 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 19-06 824 DATE: January 29, 2020 ORDER Entitlement to an initial rating of 70 percent, and no higher, for service-connected posttraumatic stress disorder (PTSD) with anxiety disorder is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The symptoms and impairment caused by the Veteran’s PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but have not more nearly approximated total occupational and social impairment. 2. The preponderance of the evidence reflects that the Veteran has not had hearing loss disability for VA purposes at any time during the pendency of the claim. 3. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus had its onset during his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent, and no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2019). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from June 1988 to June 1993. He received multiple awards, including the Combat Action Ribbon. Increased Rating Entitlement to an initial rating of 70 percent, and no higher, for service-connected PTSD is granted. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), 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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). For the reasons below, a uniform initial rating of 70 percent is warranted. The Veteran is currently in receipt of an initial rating of 50 percent from June 29, 2015. In determining whether the Veteran’s PTSD was rated appropriately, the Board has thoroughly reviewed the evidence of record and finds that the Veteran’s PTSD most nearly approximated the criteria for a 70 percent rating for the entire period on appeal. The Board’s conclusion is supported by the reasons and bases that follow. The Veteran submitted a Disability Benefits Questionnaire (DBQ) from a private psychologist in October 2016. The psychologist opined the Veteran has total occupational and social impairment due to the Veteran’s traumatic brain injury, PTSD symptoms, and constant shakes. He noted the Veteran was married for 16 years until his divorce in 2013 because his wife could no longer deal with the Veteran’s PTSD and traumatic brain injury symptoms. He further noted that Veteran had a girlfriend who assisted him with activities of daily living. Although the Veteran went out, it was rare because the Veteran got stressed, and he socialized very little and was withdrawn. The Veteran was a police officer until 2016 when he was let go for having PTSD. The October 2016 psychologist stated the Veteran was looking for new employment but could not find anything. Due to the Veteran’s constant and violent shakes, the Veteran could not at all maintain employment. The Veteran took medication for his PTSD, traumatic brain injury, and sleep problems. He never had suicidal or homicidal ideation. His symptoms include depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationship; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationship; obsessional rituals which interfere with routine activities; impaired impulse control; spatial disorientation; persistent delusions or hallucinations; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living; and disorientation to time or place. The Veteran also underwent a number of VA examinations. The June 2016 VA examiner diagnosed the Veteran with PTSD and anxiety disorder, unspecified. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. He noted the Veteran divorced in 2015, and the Veteran reported his wife could not take his outbursts of anger. The Veteran’s last employment was in May 2016 as a police officer, and he reported that he could not concentrate, was not sleeping, was constantly in trouble, and was demoted. He stated he had been under increased stress due to being forced to resign from his job and financial problems. The Veteran had a girlfriend, and they went out sometimes so the Veteran “can breathe again.” The Veteran also reported he went to church once or twice a month. The June 2016 examiner noted the Veteran was dressed appropriately, with no anomalies for concentration, gait, orientation or fund of knowledge. The Veteran’s groom and hygiene was marginal. The examiner further noted the Veteran denied suicidal ideation at the VA examination, but the examiner was not fully crediting that contention since the Veteran frequently referred to suicide as a mortal sin, which would preclude the act but not the ideation. The Veteran acknowledged some assaultive ideation when he was working, but the assaultive ideation had been absent since he stopped working. His symptoms included depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. The same VA examiner evaluated the Veteran again in June 2018. He determined that the Veteran’s PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He noted that the Veteran remarried in March 2018, and the Veteran reported the marriage was going well and his wife was a big help to him. The Veteran reported he was employed as an x-ray radiographer for airplane parts, and he was also taking college classes. He liked fishing and hunting, but time pressures precluded him from participating in the activities. He did not like crowds, but he could tolerate 25 to 30 people if they were not on top of him. The Veteran denied suicidal and homicidal ideation. The June 2016/June 2018 examiner noted the Veteran was appropriately dressed for the examination with no anomalies for speech, concentration, gait, orientation or fund of knowledge. Finally, he stated the Veteran’s symptoms may be less severe from the June 2016 examination. Symptoms included anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships The most recent VA examination occurred in September 2019. The September 2019 examiner opined the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran was still married. However, he stopped working in April 2019 but still attended college. He reported he was unable to be around other people, and he typically angered easily with no motivation to do anything around the house. The September 2019 examiner noted the Veteran was alert, cooperative, and maintained steady eye contact. The Veteran had no problems with concentration or attention, and he was pleasant and cordial. His thoughts were logical, organized, and without evidence of thought disorder, and his insight and judgment were intact and oriented. The Veteran’s symptoms were depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; impairment of short- and long-term memory; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. In September 2019, the Veteran reported increased trauma symptoms, including anger, irritability, isolation, worsening memory and concentration, and lack of motivation. See September 2019 CAPRI, p. 7. VA treatment records show that the Veteran thought about suicide in June 2015 during his contentious and stressful divorce, but he denied any intent to go through with it, citing his daughter and religious belief as protective factors. Despite the Veteran’s denial of no suicidal ideation, the Board notes the June 2016/June 2018 examiner’s finding in his June 2016 report that the Veteran’s strong religious beliefs may prevent the act but not the ideation. Although the Veteran divorced, he remarried and has a good relationship with his current spouse. The Board finds that the Veteran’s service-connected PTSD was manifested primarily by symptoms associated with a 70 percent rating throughout the pendency of the claim. To the extent the record shows intermittent improvement of his psychiatric symptomatology, his more severe symptoms including possible suicidal ideation, anger, irritability, depression, impaired impulse control, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationship have been more or less ongoing. As a whole, the effect of the severity, frequency, and duration of these signs and symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. VA treatment providers and examiners alike found the Veteran’s PTSD symptoms caused significant difficulties in social and occupational realms. The preponderance of the evidence demonstrates, however, that the Veteran’s psychiatric symptoms have not risen to the severity, frequency, and duration required for a 100 percent schedular rating. As noted above, the Veteran has not exhibited gross impairment of thought processes and has been shown to be able to communicate clearly. There is no evidence of persistent delusions or hallucinations; indeed, the record shows that the Veteran has been orientated to time and place. There is also no evidence to indicate any grossly inappropriate behavior nor is he a persistent danger to himself or others. The Veteran has not shown any inability to perform activities of daily living. He has not demonstrated symptoms of similar severity. Notably, as stated above, despite his serious symptomatology, the Veteran has maintained some positive relationships and is taking classes and is working towards a degree, and thus it cannot be said that the symptoms and impairment more nearly approximate the total social impairment required for a 100 percent schedular rating. The Veteran’s representative argued in the October 2019 appellate brief that the Veteran’s rating should be 100 percent in part because of the conclusion of the private psychologist in October 2016 that the Veteran’s symptomatology reflected that a 100 percent rating was warranted. However, the question of which rating criteria are most closely approximated by the symptoms and impairment is an adjudicatory and not a medical one. 38 C.F.R. § 3.100(a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present”). For the above reasons, the symptoms and impairment caused by the Veteran’s PTSD do not more nearly approximate the total social impairment required for a 100 percent rating. In addition, while the Veteran’s PTSD has caused his employability, he has been granted a total disability rating based on individual unemployability (TDIU) effective April 12, 2019, the day following his last day of employment and there is no evidence or argument that his employment was marginal prior to this time. Consequently, the issue of entitlement to a TDIU has not been raised by the record. Cf. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For all the foregoing reasons, when affording the Veteran the benefit of the doubt, the evidence shows that the overall impairment caused by his PTSD more nearly approximates occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As the preponderance of the evidence is against a 100 percent rating, the benefit of the doubt doctrine is not otherwise for application. Id. Accordingly, an increased initial rating of 70 percent, and no higher, is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharged, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends he has bilateral hearing loss related to his active service. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 decibels. Higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 156 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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 thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2018). A review of the medical evidence of record does not show the Veteran has a current hearing loss disability for VA purposes in either ear. His April 1993 Separation Examination showed normal hearing for VA purposes. June 1988, January 1990, and August 1992 Reference Audiograms taking during service also demonstrated normal hearing for VA purposes. Audiometric testing results from a September 2016 VA examination shows normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 10 10 LEFT 20 20 20 10 10 The audiometric testing results did not show an auditory threshold of 40 decibels or higher at any of the above-referenced frequencies or auditory thresholds of 26 decibels or greater for at least three of the above-referenced frequencies in either ear. Additionally, the reported Maryland CNC Test scores of 96 percent for the right ear and 94 percent for the left ear do not meet the VA definition of a hearing loss disability. As the only audiometric and speech recognition testing during the claim period reflect that the Veteran has not met the criteria for a hearing loss disability, the current disability requirement has not been met. Moreover, neither the Veteran nor his representative has asserted that the September 2016 VA examination was inadequate. The Board acknowledges an August 2016 primary care general note, as well as an October 2018 TBI consult result, provided the Veteran had hearing loss in both ears and a March 2017 nursing note provided the Veteran was hard of hearing. See September 2019 CAPRI, pp. 171, 381, 496. However, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). Similarly, although the Veteran is competent to say that he has decreased hearing in both ears, hearing loss for VA compensation purposes must be established by audiometric and/or speech recognition scores. The Board in no way calls into question the Veteran’s own observation of diminished hearing acuity, but the Board is unable to find at this time that the Veteran’s bilateral hearing loss is of such severity to qualify as a disability for VA purposes, as defined by regulation. The Board is grateful for the Veteran’s honorable service, including combat service, and this decision is not meant to detract from that service. However, the Board finds that the claim of entitlement to service connection for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus is granted. The Veteran contends he has tinnitus that has persisted since his active service. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is a chronic condition for purposes of 38 C.F.R. § 3.309 (a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). First, the evidence demonstrates a current disability. Specifically, the Veteran reported that he had constant bilateral tinnitus at his September 2016 VA examination. As tinnitus is a disability capable of lay observation, a current disability has been sufficiently demonstrated. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the Board finds that the first element of service connection is established. See Shedden, 381 F.3d at 1166-67. Next, the Board finds that the Veteran was exposed to loud noise while in service as the Veteran was a field wireman and received a Combat Action Ribbon. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). The Board therefore accepts the Veteran’s testimony that he suffered acoustic trauma in service and thus, the second element for service-connection is established. Moreover, the fact that the claimed cause of the Veteran’s tinnitus, i.e., acoustic trauma from weapons fire and related noise, is therefore established by his testimony, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. Finally, the Board finds that the evidence is at least in equipoise on the question of whether the currently diagnosed tinnitus is related to active service. As previously discussed, the Veteran contents that he was exposed to loud noises during service and that he has experienced tinnitus since his active duty. The Veteran also underwent a VA examination in September 2016. He described his tinnitus as a high pitch whistle and fluctuated in volume. The VA examiner found the Veteran’s tinnitus was less likely than not incurred in service. She opined that there were no reports or complaints of tinnitus in the service treatment records (STRs) and that the audiometric data in the STRs did not support acoustic damage while in damage. The VA examiner’s opinion is of little probative weight because she based her decision in part on the lack of complaints of tinnitus in the STRs, but this is precisely the type of inference that the combat rules were designed to prevent. Congress enacted section 1154(b) because of its concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves v. Shinseki, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Furthermore, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Thus, a negative nexus opinion based on the absence of evidence in the STRs of a combat veteran is inadequate. Moreover, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to report experiencing the symptom of ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His lay statements are credible and consistent with the circumstances of his service, particularly in light of his combat experience. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. When the evidence is in “relative equipoise, the law dictates that the Veteran prevails.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the reasons discussed above and resolving reasonable in favor of the Veteran, entitlement to service connection for tinnitus is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, Associate Counsel 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.