Citation Nr: 21001489 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 15-32 416 DATE: January 8, 2021 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for right ear hearing loss. An initial compensable rating for left ear hearing loss is denied.   FINDING OF FACT The Veteran’s PTSD has not manifested occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. He had additional service in the National Guard. The case is on appeal from an August 2013 rating decision. In May 2018, the Veteran testified at a Board hearing. The claims came before the Board in October 2018 and it partially increased the PTSD rating from 30 percent to 50 percent and remanded the claim for an initial rating in excess of 50 percent. The Board also remanded the other claims for an initial compensable rating for left ear hearing loss and service connection for right ear hearing loss. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. An initial rating in excess of 50 percent for PTSD. Specific Legal Criteria The Veteran’s service-connected PTSD has been rated under DC 9411, which provides that a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions recent events). 38 C.F.R. § 4.130. 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 stereo-typed 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, 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. A 100 percent rating requires 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). While Global Assessment of Functioning (GAF) scores are included in the Veteran’s medical records, the Board will not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). Analysis Following the initial April 2012 claim, the Veteran was afforded an August 2013 VA examination in which he was diagnosed with PTSD. The examiner indicated the Veteran’s PTSD approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. She stated the Veteran suffers symptoms of sleep trouble, including difficulty falling or staying asleep, avoidance, markedly diminished interest, irritability or anger, hypervigilance and an exaggerated startle response. She further noted psychiatric symptoms of depression, anxiety, suspiciousness, mild memory loss and disturbance of motivation and mood. A July 2014 record was submitted from a VA social worker which indicated the Veteran has psychiatric symptoms of hypervigilance, irritability, nightmares, flashbacks, startle reflex, avoidance, emotional numbing, anger and depression. During the May 2018 Board hearing, the Veteran testified that his PTSD has worsened, including due to sleep problems with nightmares about his service in Vietnam, as well as flashbacks. He also stated he has increased isolation and is socially impaired. As noted, the claim came before the Board in October 2018 and it partially increased his PTSD rating to 50 percent. Further, the Board remanded the claim for a rating in excess of 50 percent for further development, to include a VA examination to determine the severity of the disability. Pursuant to the Board’s remand, the Veteran was afforded another VA examination in September 2019. The examiner determined his PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported he remains married to his wife of over 49 years with two daughters and several grandchildren. The examiner reported he has symptoms of depression, anxiety, avoidance, persistent negative beliefs and emotional state, irritability, hypervigilance, exaggerated startle response and chronic difficulty sleeping. In consideration of the evidence, the Board finds the criteria for an initial rating in excess of 50 percent for PTSD have not been met. The Board determines the lay and medical evidence of record, including the two VA examination reports, support that the Veteran’s PTSD is appropriately rated as 50 percent disabling throughout the appeal period and an increased rating is not warranted. The VA examination reports from August 2013 and September 2019 were provided from psychologists who opined the Veteran’s PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Such opinions would tend to support a 30 percent rating under 38 C.F.R. § 4.130. The Board notes additional symptoms were indicated in the record which tend to support a 50 percent rating, including chronic sleep trouble, diminished interest, depression, irritability hypervigilance and mild memory loss. However, such symptoms do not rise to the level demonstrating occupational and social impairment with deficiencies in most areas and a 70 percent rating. The Board acknowledges the severity of the Veteran’s symptoms and the social and occupational impact such symptoms have caused. However, symptomatology justifying a 70 percent rating has not been exhibited. Specifically, his symptoms do not include suicidal or homicidal ideation, impaired impulse control, obsession rituals, impaired thought content or speech, neglect of personal appearance or an inability to establish and maintain effective relationships. Moreover, the Veteran has been married for approximately 50 years with two daughters and several grandchildren. He further reported he has friends that he remains in contact with and enjoys hobbies, including taking trips, gambling for fun and walking his dogs. In sum, the preponderance of the evidence weighs against the claim for an initial rating in excess of 50 percent for PTSD. There is no reasonable doubt to be resolved and an increased rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. Service connection for right ear hearing loss. The Veteran contends that his right ear hearing loss is related to service. As noted, he is currently service connected for left ear hearing loss. The Board notes the Veteran served in combat during his service in Vietnam and was exposed to significant hazardous noise. As such, the Board finds in-service noise exposure is established as it is consistent with the conditions, circumstances and hardships of his combat service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Additionally, the Veteran has current right ear hearing impairment for VA purposes under 38 C.F.R. § 3.385. See September 2019 VA examination report. Thus, the remaining question is whether the Veteran’s current right ear hearing loss is causally related to service. The July 2013 VA examination did not find current right ear hearing loss. However, the examiner determined a causal relationship exists between the Veteran’s hearing impairment and service. She indicated hearing tests from 1983 and from 1988 to 1992 indicated normal hearing in both ears. However, a hearing test from 1997 showed mild hearing loss at 2000 and 6000 Hz in the right ear and mild to moderate hearing loss above 2000 Hz in the left ear. The Veteran was afforded a September 2019 VA examination in which the examiner found right ear hearing loss under 38 C.F.R. § 3.385. However, she reported the right ear hearing loss is not related to service. She noted the Veteran’s in-service exposure to hazardous noise, including that he worked on Bradleys, ran firing ranges as platoon leader, was in combat during the Tet Offensive and was exposed to mortars, helicopters and artillery. Despite this noise exposure, she stated his separation audiogram in 1970 showed hearing within normal limits and thus, his current right ear hearing loss is not related to service. Despite the recent VA opinion, the Board finds an additional VA opinion is necessary. After review, there is a conflict in the medical evidence as to whether the Veteran’s right ear hearing loss is related to service. Therefore, the Board finds another VA opinion is warranted by an otolaryngologist (ENT) to determine the etiology of the right ear hearing loss. 2. An initial compensable rating for left ear hearing loss. This issue will also be remanded as hearing loss is potentially rated bilaterally if both ears are service connected. The matters are REMANDED for the following action: Obtain a VA opinion from an ENT physician to determine the nature and etiology of the Veteran’s right ear hearing loss. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right ear hearing loss had its onset during, or is otherwise related to, service, to include his established exposure to in-service hazardous noise. The opinion should specifically address the prior medical evidence of record, including the July 2013 and September 2019 VA examination reports. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.