Citation Nr: 20007315 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 15-03 857 DATE: January 28, 2020 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. Entitlement to an initial disability rating of 50 percent, but no higher, for service-connected major depressive disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence reflects that throughout the period on appeal, the Veteran had, at worst, Level I hearing acuity bilaterally. 2. The preponderance of the evidence reflects that the Veteran’s major depressive disorder was productive of symptoms including disturbances of motivation and mood. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.86, Diagnostic Code 6100. 2. The criteria for an initial 50 percent disability rating, but no higher, for service-connected major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to September 1987, January 1989 to September 1987, and from March 1990 to May 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from initial October 2013 and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran’s claim for entitlement to an initial disability rating in excess of 30 percent for major depressive disorder was denied by the Board in a May 2018 decision. The May 2018 Board decision also remanded the claim for service connection for a right knee disability for a VA medical opinion, and the claim for entitlement to an initial compensable disability rating for service-connected bilateral hearing loss was remanded for a new VA examination. The Veteran’s claim for entitlement to a TDIU award was remanded as being intertwined. The Veteran appealed the denial of an initial disability rating in excess of 30 percent for major depressive disorder to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Memorandum Decision, the Court vacated the May 2018 Board decision and remanded the matter back to the Board for readjudication. Specifically, the Court found that the Board failed to provide an adequate statement of reasons or bases for how it attributed weight to the private and VA medical evaluations of record. Regarding the issues remanded in the May 2018 Board decision, the Board notes that the Veteran was provided VA examinations for his right knee and bilateral hearing loss disabilities in February 2019. Accordingly, since the Veteran was provided thorough and adequate VA examinations, the Board’s May 2018 remand has been substantially complied with by VA. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the Board notes that on remand, the RO granted entitlement to service connection for the Veteran’s claimed right knee disability in a September 2019 rating decision. Accordingly, as the benefit sought by the Veteran regarding this issue was granted in full, it is no longer before the Board. Increased Rating Generally, disability evaluations are determined by the application of the VA 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the appeal, the assignment of staged ratings would be necessary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral Hearing Loss Here, the Veteran’s service-connected bilateral hearing loss is currently assigned an initial noncompensable (zero percent) disability rating under the provisions of Diagnostic Code (DC) 6100 of the Rating Schedule. See 38 C.F.R. § 4.85. In his November 2013 notice of disagreement, the Veteran claimed that he was entitled to a 10 percent rating for this disability. Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. See id. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Id. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. See 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. See 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone if the examiner certifies the use of the speech discrimination test is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. See 38 C.F.R. § 4.85(e). Further, when the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). In September 2013, the Veteran was afforded a VA audiological examination. Puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 40 40 45 LEFT 25 35 45 50 The average puretone thresholds were 38.75 decibels bilaterally, and speech discrimination scores were 96 percent bilaterally. Utilizing Table VI listed in 38 C.F.R. § 4.85, the October 2013 audiological examination findings show Level I hearing acuity bilaterally. When applied to Table VII, these combined numeric designations of Level I result in a noncompensable rating. As was noted in the May 2018 Board remand, the Veteran’s VA treatment records contain a February 2015 report by the Veteran of worsening hearing. As a result, he was afforded an additional VA examination in February 2019. Audiometric testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 RIGHT 40 50 55 55 LEFT 35 50 60 55 The average puretone thresholds were 50 decibels bilaterally, and speech discrimination scores were 96 degrees bilaterally. Under Table VI, the February 2019 audiological examination findings show Level I hearing acuity bilaterally. When applied to Table VII, these combined numeric designations result in a noncompensable rating. In light of the foregoing, the Board finds that entitlement to an initial compensable disability rating for bilateral hearing loss is not warranted. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran’s hearing loss has not approximated the criteria for a compensable rating for the period on appeal. The Board acknowledges that the evidence of record reflects a slight worsening of the Veteran hearing acuity during the period on appeal. However, the worsened hearing levels still do not warrant a compensable disability rating under the Rating Schedule. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to a compensable disability rating for bilateral hearing loss is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Major Depressive Disorder Pursuant to VA regulations, the Veteran’s service-connected major depressive disorder has been assigned an initial 30 percent disability rating under Diagnostic Code (DC) 9434 and the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9434. The General Rating Formula for Mental Disorders provides for the assignment of a 30 percent rating when the evidence shows there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; or mild memory loss. Id. A 50 percent rating is warranted when the evidence shows 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 or 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. Id. 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); and the inability to establish and maintain effective relationships. Id. The assignment of 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; 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; and memory loss for names of close relatives, own occupation, or own name. Id. It should be noted that the symptoms listed in VA’s General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Additionally, 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. 38 C.F.R. § 4.126. On June 2016 VA examination, the Veteran was provided a diagnosis of major depressive disorder, single episode, mild severity. The VA examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Regarding relevant social history, the Veteran was noted as being married for the last 39 years. He indicated that he loves his wife, but reported that their relationship is frequently negative. He has a biological son and daughter and an adopted son. The Veteran reported having a good relationship with his daughter, but not with his sons. Regarding relevant educational and occupational history, the Veteran completed high school and graduated from college with a degree in political science. After service, he worked in the civil service for 16 years as a strategic planner. He retired from this position in September 2015. The Veteran reported experiencing depressive symptoms after his retirement. He began experiencing more physical pain, which resulted in a difficulty completing normal activities. He reported difficulty sleeping, decreased energy, and a loss of interest in things quickly. He reported feeling less engaged and more irritable. He denied difficulty with his ability to focus. The following additional symptoms were noted: depressed mood, chronic sleep impairment, and disturbances of motivation and mood. On the date of the examination, the Veteran showed no signs of psychomotor agitation or retardation. His mood was anxious, and he had a restricted affect. His thoughts were noted to be organized and logical, and there was no evidence of psychosis. He denied suicidal or homicidal thoughts. Also associated with the claims file are medical treatment records from the Veteran’s private physician. On March 2016 examination, the Veteran reported experiencing flashbacks and nightmares accompanied by some night sweats; however, these symptoms were not noted as being as frequent as they were previously. He reported that since retirement, he had less structure in his life, which impacted his patience and tolerance level, gave him more time to think, and made him restless. He reported being irritable, experiencing angry outbursts, and that he becomes easily frustrated and less patient with others in certain situations. He reported feeling isolated and that he prefers to remain at home and will avoid crowds when possible. He indicated that he was frustrated and angry because he could not be as active as he was before due to his physical disabilities. He reported being very indecisive and having greater difficulty making decisions. He also reported having feelings of worthlessness. Regarding relevant social history, the Veteran was noted as being married to his current spouse for the past 39 years. He reported that his marriage is impacted by his issues. He reported having a good relationship with his daughter and adopted son, but that he had a “falling out” with his other son regarding the way his son chose to live his life. He indicated that he does not have many friends and that he recently cut out a lifelong friend from his life. He indicated that he stopped socializing. He indicated that he gets restless and agitated more than usual and has lost interest in people and activities. However, it was also noted that the Veteran was active in his local church with his family and that this is a vital part of his life. He also reported being involved with the Boy Scouts since the age of 19. Regarding relevant educational and occupational history, the Veteran was noted as having a master’s degree in computer resource management. After service working in the special operations command, he was employed in the civil service for 17 years. He indicated that he is becoming forgetful, and that his focus and concentration are sometimes problematic. In his assessment, the private physician indicated that the Veteran experienced impairment in work and house work, specifically, he had not been taking care of his house including yard work. The private physician did not address employment. He indicated that the Veteran experienced impairment with friends and relationships, specifically, he had been avoiding his friends, and he doesn’t get along with his spouse. He exhibited a distrust of others, and has to be in control at all times. He is very moody and gets easily angry and snappy. The examiner also indicated that it is at least as likely as not that the Veteran’s chronic pain from his shoulder and back had contributed to his depression. On April and July 2016 private evaluation, the Veteran was noted as being anxious, depressed, and restless. He had a blunted affect with psychomotor retardation. He exhibited a normal thought process, but reported problems with his memory. He also exhibited a general mistrust in people. He denied any suicidal or homicidal thoughts or any self-injurious behavior. Also associated with the claims file are VA treatment records. During a February 2019 knee examination, the Veteran indicated that he was unable to participate in physical activities with the Boy Scouts since 2000 due to his knee, however it was indicated that he currently serves in an administrative role with his troop. It was also indicated that the Veteran was unable to do yard work due to his knee disability. The Board notes that records from the Social Security Administration (SSA) are also associated with the claims file. The Board notes that the Veteran was found to be disabled beginning on March 14, 2016, due to physical limitations in addition to mental limitations. Regarding mental limitations, he was noted has having sustained concentration and persistence limitations. Specifically, he was noted as being moderately limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. However, the Veteran was not found to have understanding and memory limitations. In light of the foregoing, the Board finds that entitlement to an initial 50 percent rating, but no higher, for service-connected major depressive disorder is granted. The Board finds that the preponderance of the evidence of record reflects the Veteran’s major depressive disorder being productive of occupational and social impairment with reduced reliability and productivity. Specifically, private treatment records reflect the Veteran exhibiting disturbances of motivation and mood. See 38 C.F.R. § 4.130, DC 9434. The Board acknowledges that there are some inconsistencies between the reports provided in the June 2016 VA examination and in the March 2016 private treatment records. For example, in the March 2016 private treatment records, it is noted that the Veteran reported an inability to focus, and having a good relationship with his adopted son. However, in the June 2016 VA examination, the Veteran denied difficulty with his ability to focus, and reported not having a good relationship with both of his sons. Resolving doubt in the Veteran’s favor, the Board finds the evidence of record, including an assessment of his private physician, reflects the Veteran experiencing disturbances of motivation and mood. The Board additionally finds that a disability rating in excess of 50 percent is not warranted, as the preponderance of the evidence of record does not reflect that the Veteran’s service-connected major depressive disorder is productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. Initially, regarding employment, while the Veteran exhibited disturbances of motivation and mood and occasional memory problems, the evidence of record reflects the Veteran having a normal thought process, and the Veteran has been noted as having normal speech with organized and logical thoughts. Further, while the Veteran was noted as being irritable and easily angered, the Board does not find this to rise to the level of impaired impulse control described in the criteria for a higher rating, as the evidence does not reflect that the Veteran’s mood disturbance has involved violence. While the Veteran reported some strained relationships, the Board does not find that his level of social impairment rises to the level described in the 70 percent disability rating. Specifically, while the Veteran generally reported having difficulties with his wife and his sons, he reported having a good relationship with his daughter, and being in a close relationship with his half-brothers and sisters. Further, the Veteran is reportedly actively involved in his church. Additionally, while the Veteran was noted as having to restrict his involvement in physical activities with the Boy Scouts, he continues to be involved with the social organization in an administrative role. Thus, while the evidence of record reflects that Veteran having an occasional difficulty establishing and maintaining relationships, the Board does not find the evidence to reflect an inability to establish and maintain relationships. This evidence also demonstrates that the Veteran’s symptomatology does not result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment thinking or mood. The Board acknowledges that the SSA has found the Veteran to be disabled as of March 14, 2016. However, the Board notes that given the different standards utilized by VA and SSA, VA is not bound by an SSA determination. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (explaining that although VA is required to consider the SSA’s findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, include SSA). In addition, the Veteran was found disabled in part for physical limitations. Further, the Board notes that he was found to be only “moderately limited” in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. The Board finds that the Veteran’s disability picture is accurately reflected by the criteria for the 50 percent disability rating, as described above. Accordingly, entitlement to an initial 50 percent disability rating, but no higher, for service-connected major depressive disorder is granted. REASONS FOR REMAND For the reasons discussed below, the Board finds that a remand is warranted for the issue of entitlement to an award of a TDIU. The Board notes that the Veteran has been awarded service connection for the following disabilities: major depressive disorder, now rated at 50 percent; degenerative joint disease of the cervical and lumbar spine, each rated at 20 percent; degenerative joint disease of the right and left knee, each rated at 10 percent; tinnitus, rated at 10 percent; and atopic eczema, bilateral hearing loss, and allergic rhinitis, all provided noncompensable ratings. The Board notes that the last VA spine examination of record was in November 1997. At that time, there were no back spasms noted. The Veteran’s current VA treatment records reflect a worsening of his service-connected spine disabilities. Specifically, the Board notes an October 2016 notation of back spasms. Additionally, the Veteran reported neck and back spasms during his February 2019 VA knee examination. The Board also notes that the SSA records associated with the claims file indicate that the Veteran’s service-connected spine disabilities may limit employability. Accordingly, as the evidence of record reflects a worsening of the Veteran’s service-connected spine disabilities, the Board finds that a remand of the issue of entitlement to an award of a TDIU is warranted in order to provide the Veteran with an updated VA spine examination to determine his current level of impairment and any resulting employability limitations. Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records. 2. Then schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected cervical and lumbar spine disabilities to address the functional impact of this disability for the purposes of evaluating entitlement to TDIU. The claims file, to include a copy of this remand, must be made available to the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings must be reported in detail. The examiner should also address any limitation in employability due to these disabilities. (a) The examiner should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner should ask the Veteran to describe in his own words the functional impact of his spine disability on his ability to engage in substantially gainful work. The Veteran's response should be recorded in the report. c) Considering the Veteran self-report, coupled with the current examination findings and review of the pertinent clinical records, the examiner should indicate the objective functional effects of the Veteran’s service-connected spine disability on his ability to perform the physical and mental acts required for employment. The examiner should refrain from commenting on whether the Veteran is employable. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. DeChiara, 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.