Citation Nr: 21062553 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-56 668 DATE: October 7, 2021 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. An initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's service-connected PTSD has not been productive of occupational and social impairment with deficiencies in most areas or total occupational and social impairment during the appeal period. 2. The Veteran's hearing impairment has been no worse than Level I in the right ear and Level I in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9411. 2. The criteria for compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran serve on active duty in the United States Army from December 1966 to November 1968, including service in the Republic of Vietnam. This matter is on appeal from a December 2016 rating decision that granted service connection for PTSD and for bilateral hearing loss and assigned 50 percent and noncompensable ratings, respectively, effective June 14, 2016. The Board remanded these issues for additional development in October 2019. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran or by the record. At the December 2019 PTSD examination and in the October 2017 VA Form 9, the Veteran has stated he no longer employed. However, at the December 2019 PTSD examination, the Veteran reported he did not like work. He ended his employment in spring of 2017. He stated, "I was eligible for social security and I had gotten my rating from the VA for the PTSD." He received no disciplinary actions and no excessive absences. In this regard, the Board observes that in a November 2017 letter, the RO requested that the Veteran complete and submit VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). In doing so, the RO also enclosed a copy of the VA Form 21-8940. To date the Veteran has not done so. As such, the Board finds that the issue of entitlement to a TDIU has not been raised. 1. Entitlement to a rating in excess of 50 percent for PTSD. The Veteran's PTSD is currently rated at 50 percent, effective June 14, 2016. He asserts that his PTSD is more severe than the currently assigned rating and that he is entitled to a higher rating. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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 for 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 that 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 for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in 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. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). The Veteran was afforded an initial VA examination in November 2016. The VA examiner summarized the Veteran's impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of behavior, self-care and conversation. The Veteran's symptoms included: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner observed the Veteran's hygiene and groom to be adequate. His mood was anxious and depressed, and his affect was appropriate to content. The Veteran emotionally broke down when describing the stressor event, with some tears and voice shaking. The Veteran's memory, concentration, and attention were intact. His insight and judgment were good. The Veteran denied suicidal or homicidal ideation. His thought processes were logical, and goal directed. See November 2016 Initial PTSD DBQ. Regarding social impairment, the Veteran reported he lived with his partner and they had been together for 15 years. He stated, he had a couple of friends that he goes fishing with often. They traveled to Oregon and Canada for a few days to fish. He reported that it provides a great deal of relief. Regarding occupational impairment, the Veteran was working as a food safety manager in a packing house. At the time of the examination, he had been working there 5 years. See November 2016 Initial PTSD DBQ. As previously noted, in October 2019, the Board remanded this issue for additional development, to include a VA examination. The Veteran was afforded a VA examination in December 2019. The VA examiner summarized the Veteran's impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran's symptoms included: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances in establishing and maintaining effective work and social relationships; disturbances of motivation and mood and difficulty adapting to stressful circumstances, including work or a work like setting. Regarding social impairment, the Veteran reported that he has friends, engages in activities and has a sustained relationship with his partner. The Veteran's partner reported that his depression and social anxiety comes in "bouts." It is during those times that he is less willing to interact with others. He has insomnia "from time to time." She also indicated his poor sleep comes several nights in a row and in waves which is associated with the varying degrees of anxiety and worry he is experiencing at that time. This would cause concentration, attention, and memory issues at a moderate level when that occurs. See December 2019 Review PTSD DBQ. The December 2019 VA examiner, to the extent possible, assessed the Veteran's symptoms and impairment due to PTSD as moderate impairment in his interactions with the public secondary to his suspiciousness of others, anxious distress related to inability to control environment. The examiner noted, the Veteran has difficulty adapting to changes in the work environment which he managed by working for the same company for 40 years. He would experience moderate impairment with coworkers and supervisors secondary to his anxiety, expectations of the worst occurring, and distrust of others. His concentration, memory, and attention from non-restorative sleep would cause moderate impairment in learning new job tasks, understanding and remembering complex instructions. His anxiety symptoms which include expectation of the worst outcomes would moderately affect his ability to deal with stress in the work environment. The Veteran did not report suicidal or homicidal ideation. His thought processes were logical and goal oriented and his thought content was appropriate. See December 2019 Review PTSD DBQ. Additionally, the Veteran's partner reported the Veteran occasionally exhibits feelings of paranoia and needless worry. He sometimes has trouble sleeping and has nightmares. She stated he occasionally has bouts of depression and social anxiety which result in him isolating himself, especially from large groups of people he doesn't know. See June 2017 Buddy Statement. Based on the evidence discussed above, including the Veteran's VA examinations and lay statements, the Board finds that an evaluation in excess of 50 percent is not warranted. The Veteran exhibited a number of symptoms, including suspiciousness, anxiety, panic attacks that occur weekly or less often and difficulty in establishing and maintaining effective work and social relationships resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. However, the Veteran's PTSD does not result in serious symptoms with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. The Veteran is consistently reported to exhibit appropriate grooming, behaviors with logical and coherent speech and thought processes. Moreover, the Veteran did not have near-continuous panic attacks affecting the Veteran's functioning. At no time during this period is the Veteran reported to have suicidal ideation or impaired impulse control. As such, the Board finds that a preponderance of the evidence indicates that the Veteran's PTSD does not result in severe symptomatology to warrant an evaluation greater than 50 percent. The Board acknowledges the Veteran's concern that his service-connected PTSD warrants evaluations greater than those assigned herein. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected acquired psychiatric disorder with PTSD symptoms. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, the Board concludes that the type and degree of symptoms demonstrated during the appeal period are of similar frequency and severity as those contemplated for a 50 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d at 112. Overall, the Board concludes that the evidence discussed above, as well as all other evidence of record not specifically addressed including VA treatment records, supports a 50 percent evaluation for the Veteran's PTSD and not higher. As the evidence preponderates against higher ratings there is no basis to find reasonable doubt. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a compensable rating for bilateral hearing loss The Veteran asserts that his bilateral hearing loss, currently evaluated as noncompensable, warrants a higher evaluation. The Veteran submitted a private audiogram in September 2017 suggesting a worsening in his hearing thresholds. As such, in October 2019, the Board remanded this matter for a VA examination. The Veteran's bilateral hearing loss is rated as non- compensable under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Under Diagnostic Code 6100 the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). 38 C.F.R. § 4.85 (c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. With the criteria in mind, at the November 2016 VA examination, the Veteran had pure tone thresholds of 20, 10, 20 and 60 decibels in the right ear and pure tone thresholds of 20, 20, 30 and 70 decibels in the left ear, decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 28 decibels in the right ear and 35 decibels in the left ear. Speech recognition ability was 92 percent in the right ear and 96 percent in the left ear. Applying the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran's right ear hearing loss, at its worst, is assigned a numeric designation of I and the left ear hearing loss, at its worst, is assigned a numeric designation of I. These test scores do not show that the Veteran met the criteria for a compensable rating for his bilateral hearing loss. At the September 2017 private examination, the Veteran had pure tone thresholds of 25, 20, 30 and 60 in the right ear and pure tone thresholds of 25, 25, 60 and 65. The averages were 34 decibels in the right war and 44 decibels in the left ear. Speech discrimination score testing was not appropriate for either ear as it was not based on the Maryland CNC test as required. As such, the speech discrimination scores cannot be used from this evidence. However, in October 2019, the Board found the September 2017 private examination suggested worsening of the Veteran's hearing disability and remanded the claim for additional development, to include a new VA examination. At the December 2019 VA examination the Veteran had pure tone thresholds of 20, 15, 30 and 60 decibels in the right ear and pure tone thresholds of 20, 20, 55 and 65 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 31 decibels in the right ear and 40 decibels in the left ear. Speech recognition ability was 96 percent in the right ear, and 94 percent in the left ear. Applying the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran's right ear hearing loss, at its worst, is assigned a numeric designation of I and the left ear hearing loss, at its worst, is assigned a numeric designation of I. These test scores do not show that the Veteran met the criteria for a compensable rating for his bilateral hearing loss. These test scores do not show that the Veteran met the criteria for a compensable rating for his bilateral hearing loss. Therefore, the Board finds that the claim for a compensable rating for his service-connected bilateral hearing loss is denied under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. This is true at all times during the pendency of the appeal and therefore consideration of a staged rating is not warranted. Fenderson v. West, 12 Vet. App. 119 (1999). As to 38 C.F.R. § 4.86 (a), at none of the above examinations did the Veteran have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz). Consequently, 38 C.F.R. § 4.86 (a) is not for application. This is true at all times during the pendency of the appeal and therefore consideration of a staged rating is not warranted. Fenderson. As to 38 C.F.R. § 4.86 (b), at the June 2019 examination the Veteran did not have thresholds of 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. Consequently, 38 C.F.R. § 4.86 (b) is not for application. This is true at all times during the pendency of the appeal and therefore consideration of a staged rating is not warranted. Fenderson. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.