Citation Nr: 21005117 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-16 202 DATE: January 29, 2021 ORDER Service connection for bilateral hearing loss disability is denied. Entitlement to an initial rating in excess of 30 percent for generalized anxiety disorder prior to September 6, 2017, and in excess of 50 percent therefrom, is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of bilateral hearing loss disability per VA standards. 2. The severity, frequency, and duration of the Veteran’s psychiatric symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity prior to September 6, 2017. 3. The severity, frequency, and duration of the Veteran’s psychiatric symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas from September 6, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 2. The criteria for a disability rating in excess of 30 percent for generalized anxiety disorder, prior to September 6, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9400 (2019). 3. The criteria for a rating in excess of 50 percent for generalized anxiety disorder from September 6, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to November 1970. These matters come to the Board of Veterans’ Appeals (Board) following a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2019, the Veteran testified at a video hearing. A transcript is of record. In November 2019, the issues were remanded for additional evidentiary development and have now been returned for further appellate consideration. The Veteran was notified in an October 2020 letter that the Veterans Law Judge who conducted the August 2019 hearing was no longer employed by the Board and offered the opportunity for a new hearing. The Veteran did not respond to this letter. Entitlement to service connection for bilateral hearing loss disability The Veteran contends he is entitled to service connection for bilateral hearing loss disability. For the reasons noted below, the Board finds that entitlement to service connection is not warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 (2019). Of record are private audiological examinations dated in September 2009, September 2011, September 2012, and September 2014. Each of these examinations showed normal hearing in both ears. At the time of VA audiological examination in August 2014, in-service and post service noise exposure was noted. Audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 25 25 LEFT 30 25 25 25 30 The speech discrimination test utilizing the Maryland CNC word list was not appropriate for this Veteran “because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that [made] combined use of pure tone average and word recognition scores inappropriate.” While the VA examiner determined that the Veteran had sensorineural hearing loss in the frequency range of 6000 Hertz in the right ear and in the frequency range of 500-4000 Hertz in the left ear, his bilateral hearing loss has not risen to the level required to be considered disabling for VA purposes under 38 C.F.R. § 3.385 (2019). At the August 2019 video hearing, the Veteran testified that he believed his hearing has gotten worse since his last VA hearing examination in 2014. He stated that he had more difficulty hearing and had to turn the television to a higher volume. VA audiometric testing was attempted at a VA audiological examination of January 2020. However, the test results were voided in that the “test results were too inconsistent to record.” Specifically, there was a lack of agreement between pure tone averages and speech reception thresholds. There was 20-30 decibel variability between ascending and descending threshold searches. The examiner assessed normal hearing in both ears. The Board acknowledges that this most recent VA examination did not yield results that could be verified, and therefore it is not clear whether the Veteran’s hearing acuity might be worse than at the last testing with verifiable results. However, it is not VA’s obligation to produce evidence with respect to the Veteran’s claim; rather, the Veteran has the burden to provide evidence to support the benefits sought on appeal. Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). No such evidence has been provided and the Board finds no grounds for a grant of service connection for bilateral hearing loss disability. Additional examination is unlikely to yield verifiable results as some inconsistent results were also noted in 2014. At no time during the pendency of the claim has there been diagnosis of bilateral hearing loss that meets VA standards pursuant to 3.385. Moreover, even though the most recent testing did not yield verifiable results, it was the examiner’s opinion that hearing was normal in both ears. Generally, under the circumstances of this case, the Board would discuss the conversion of in-service audiogram results from ASA (American Standard Association) units to ISO (International Organization for Standard) units, also known as ANSI (American National Standard Units). In this case, however, a current diagnosis of hearing loss disability per VA standards is not established and further discussion of the Veteran’s in-service exposure to acoustic trauma and hearing is not warranted. The claim for service connection for bilateral hearing loss disability must be denied. Entitlement to a Rating in Excess of 30 Percent Prior to September 6, 2017, for Generalized Anxiety Disorder and in Excess of 50 Percent Therefrom. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2019). When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran’s psychiatric disorder is currently rated under 38 C.F.R. § 4.130, DC 9400 as 30 percent disabling prior to September 6, 2017, and as 50 percent disabling from that date forward. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130 (2019). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. See 38 C.F.R. § 4.130, DC 9400 (2019). The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. A veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage in the rating criteria, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although a veteran’s symptomatology is the primary consideration in assessing veteran’s disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for that rating. Id.; 38 C.F.R. § 4.130 (2019). The Veteran’s generalized anxiety disorder is currently rated as 30 percent disabling prior to September 6, 2017 and as 50 percent thereafter. At the June 2014 VA examination, the Veteran reported he had been nervous all of his life. He had friends and attended church. He also attended meetings of the Vietnam Veterans of America and enjoyed bowling and fishing. He had recurrent distressing dreams and avoided external reminders of traumatic events. He reported hypervigilance, exaggerated startle response and sleep disturbance. On examination, he was alert, oriented and showed appropriate dress and good hygiene. There were no hallucinations or delusions elicited. His mood and affect were anxious but with full range of expression. The examiner found that a diagnosis of posttraumatic stress disorder (PTSD) was not supported despite the presence of in-service stressor events. The mental health diagnosis was of generalized anxiety disorder. This condition was noted to preexist service, but in the examiner’s opinion the condition had been aggravated. In a September 2016 statement, the Veteran said that his employer accommodated him for his mental health symptoms at work. He was satisfied with his placement there and did not try to advance. He had severe short and long-term memory problems and was easily upset. He did not get along with others, to include his children. VA treatment records dated in 2016 and 2017 reflect irritability and anger issues and some anxiety about taking medications. In 2016, when seen for anxiety, anger, and irritability, he expressed regret for being angry at another employee where he worked. His symptoms included a low energy level and feelings of guilt if he got angry at others. At a September 2017 VA examination, the Veteran was diagnosed with unspecified depressive disorder with anxious distress. The examiner found that there was occupational and social impairment with reduced reliability and productivity. The Veteran reported he was irritable and “snappy.” He argued with his wife often. He did not have a good relationship with his older children. He exhibited some sleep disturbance (waking up hollering with flashbacks). He had recently retired from his job “making Pringles” where he had worked for 41 years. His mental health symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week. He experienced chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. On examination, the Veteran was calm and cooperative with good grooming and hygiene. He exhibited no unusual behaviors other than smiling throughout the interview, believed to be a mask to hide his true emotions. His speech was normal, and his mood was anxious. No hallucinations or delusions were endorsed. His insight and judgment were good. In August 2019, the Veteran testified he continued to received care for his psychiatric symptoms. The Board remanded the claim in November 2019 for additional development, to include the obtainment of contemporaneous treatment records. Additional VA records added to the record reflect that the Veteran was seen in September 2018. His mood was OK,” and he only had anxiety about finances. At that time, the examiner noted that the Veteran was not visibly depressed, and his affect was full range. There were no perceptual disturbances. His speech was clear, relevant, spontaneous, and coherent. His thought processes were linear and goal directed. There were no delusions or hallucinations. In January 2019 report, he was seen for a preoperative (endoscopy) evaluation. He requested medication for his nerves and anxiety. He was otherwise “OK” with anesthesia. Records dated in 2020 did not refer to any anxiety when being treated for other conditions. In December 2019 correspondence to the Veteran, it was requested that he submit any additional evidence in support of his claim. No reply was received. Prior to September 6, 2017 The Veteran contends that his generalized anxiety disorder symptoms warrant a higher rating. See, e.g., his August 2019 testimony. As noted, the Veteran’s generalized anxiety disorder is rated as 30 percent disabling prior to September 6, 2017. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher as to the period prior to September 6, 2017. After a review of the competent evidence of record, the Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran’s symptoms more closely approximated the symptoms and level of impairment associated with a 30 percent rating. Specifically, the Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. While the record shows that there was report of irritability and anger in 2016 and 2017 and some work issues. He complained of hypervigilance, exaggerated startle response, and sleep disturbance, as well as anxiety. However, the Veteran interacted with others and enjoyed some out-of-the-house activities, such as attending church, bowling and fishing. It is concluded by the Board that the severity of his symptoms for this period in time are contemplated by the assigned 30 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 30 percent rating. He continued to work at this time. Clearly, he was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. For the period in question, he was alert and oriented to person, place, time and situation; was cooperative; was dressed properly; his thought processes were logical; there was no evidence of delusional thoughts or perpetual disturbances; his judgment appeared intact; and he presented with normal range of affect. He denied suicidal or homicidal ideation. While the Veteran did experience symptoms contemplated by a 50 percent rating (difficulty in establishing and maintaining effective work and social relationships), the evidence overall does not demonstrate the level of impairment more nearly approximating that of a 50 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. Further, while he reported getting angry at another employee at work in a July 2016 report, the Veteran was generally performing well at work. Indeed, as noted, he held the same job for approximately 41 years. Both the lay and medical evidence are probative in this matter. However, whether a disability meets the schedular criteria for the assignment of a higher rating is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran believes that he met the criteria for higher disability rating prior to September 6, 2017, his complaints and the medical findings do not meet the schedular requirements for a higher rating than the currently assigned 30 percent. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 50 percent rating. His symptoms more nearly reflect the criteria associated with and contemplated by the assigned 30 percent rating for the period prior to September 6, 2017. Also, there is no basis to further stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating than previously assigned. See Hart, supra (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson, supra. Accordingly, the claim for a rating higher than 30 percent prior to September 6, 2017, is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b) (2019). From September 6, 2017 The Veteran contends that his generalized anxiety disorder symptoms warrant a higher rating. See, e.g., his August 2019 testimony. As noted, the Veteran’s generalized anxiety disorder is rated as 50 percent disabling form September 6, 2017. The issue here is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher from September 6, 2017. Upon review of the competent evidence of record, the Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher from September 6, 2017. His symptoms and level of impairment more closely approximated those associated with a 50 percent rating. The September 2017 VA examination and the Veteran’s lay statements show that his anxiety was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events), symptoms associated with a 50 percent rating (mild memory loss, difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 70 percent rating such as unprovoked irritability. The Board finds the severity, frequency, and duration of the Veteran’s symptoms of feelings of detachment or estrangement from others, irritability more closely approximate the symptoms contemplated by the 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent or higher ratings. The level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating from September 6, 2017. The Veteran experienced occupational and social impairment with reduced reliability and productivity which is contemplated in the 50 percent rating. When examined in 2017, the Veteran was oriented, and he had appropriate appearance. He was alert though depressed with anxiety, suspicious, and showed mild memory loss. While the Veteran expressed negative beliefs about people generally and indicated that he sometimes was angry and irritability with others, it is apparent that he functioned well generally. While the Veteran did experience symptoms contemplated by a 70 percent rating, such as unprovoked irritability, the evidence overall does not demonstrate the level of impairment (e.g., periods of violence associated with his irritability) associated with a 70 percent rating. In this regard, the Veteran reported feelings of guilt when he expressed anger at others. Both the lay and medical evidence are probative in this matter. However, whether a disability meets the schedular criteria for the assignment of a higher rating is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran believed that he met the criteria for higher disability rating from September 6, 2017, his complaints and the medical findings do not meet the schedular requirements for a higher rating than assigned, as explained and discussed above. There is no basis to stage the rating. Fenderson, 12 Vet. App. 119; Hart, 22 Vet. App. 505. In summary, the severity, frequency, and/or duration of symptoms, individually or collectively, shown by the record do not more nearly reflect the type contemplated by the schedular criteria for an evaluation in excess of 50 percent. Accordingly, the claim for a rating higher than 50 percent from September 6, 2017, is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b) (2019). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.