Citation Nr: 21063349 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 08-28 353 DATE: October 14, 2021 ORDER Entitlement to a compensable disability rating for right ear hearing loss is denied. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from February 26, 2006 to February 26, 2008 is denied. Entitlement to a 70 percent disability rating for PTSD from February 26, 2008 onward is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to April 25, 2012 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right ear hearing loss has manifested in hearing impairment commensurate with a compensable disability rating; no exceptional patterns of hearing loss are noted. 2. For the period from February 26, 2006 to February 26, 2008, the preponderance of the evidence does not indicate that the Veteran's PTSD resulted in more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. From February 26, 2008 onward, the preponderance of the evidence indicates that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas; however, it did not result in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for right ear hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 2. The criteria for entitlement to a disability rating in excess of 30 percent for PTSD from February 26, 2006 to February 26, 2008 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for entitlement to a disability rating of 70 percent for PTSD from February 26, 2008 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for further development in March 2017 and May 2020. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. The Veteran was scheduled for VA examinations for his right ear hearing loss and PTSD claims; however, both examinations were cancelled at the Veteran's request, and no reason was provided for the cancellation. See May 2020 Exam Requests. Additionally, the Board notes that in the April 2008 rating decision that granted service connection for PTSD, the RO assigned an effective date of February 26, 2006. This date was assigned in error. As the RO states in the body of the April 2008 decision, the appropriate effective date was February 26, 2008, the date the Veteran's claim was received. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any doubt regarding the extent of the disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a compensable disability rating for right ear hearing loss The Veteran asserts that his right ear hearing loss is more severe than is reflected by his current noncompensable evaluation. Hearing loss ranges from zero to 100 percent. This is based on organic impairment of hearing acuity measured by combining controlled speech discrimination tests results together with the average hearing-threshold level measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness to evaluate the degree of disability from service-connected hearing loss. 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. The ratings for disability compensation for hearing loss are determined by a mechanical, meaning nondiscretionary, application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the audiometry test and the results of the speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. See Id. The numeric designation of impaired hearing for each ear (Levels I through XI) is determined by intersecting the vertical row, the percentage of discrimination, and the horizontal column, the pure tone decibel loss. The rating is determined in Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column, the numeric designation for the ear having the better hearing acuity (as determined by Table VI), and the horizontal row, the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). Additionally, under § 4.85, an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment and allows for use of Table VIA, which evaluates hearing impairment based only on pure tone averages; if the Veterans pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more; or the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In this case, the Veteran claimed service connection for hearing loss in May 2008. June 2008 audiometric testing by private audiologists reveal the following scores: HERTZ June 2008 500 1000 2000 3000 4000 Avg. RIGHT 20 15 55 70 65 51 LEFT 20 15 60 70 70 55 Speech discrimination ability was noted to be 100 percent in both ears. These scores correspond to Level I severity under Table VI of § 4.86, which corresponds to a noncompensable (zero percent) evaluation under Table VII. During the Veteran's September 2008 VA examination for hearing loss, the Veteran's audiometric test results were as follows: HERTZ Sept. 2008 500 1000 2000 3000 4000 Avg. RIGHT 10 15 35 60 60 43 LEFT 10 10 40 60 60 43 Maryland CNC word recognition scores were 96 percent for the right ear and 92 percent for the left ear. These scores correspond to Level I severity under Table VI of § 4.86, which corresponds to a noncompensable (zero percent) evaluation under Table VII. During a December 2008 VA audiological evaluation, the Veteran's audiometric test results were as follows: HERTZ Dec. 2008 500 1000 2000 3000 4000 Avg. RIGHT 5 10 35 65 60 42.5 LEFT 10 5 30 60 55 37.5 Maryland CNC word recognition scores were 96 percent for the right ear and 96 percent for the left ear. These scores correspond to Level I severity under Table VI of § 4.86, which corresponds to a noncompensable (zero percent) evaluation under Table VII. In an April 2009 Form 9 statement, the Veteran stated he could not hear well and disagreed with VA's denial of his claim. During the Veteran's June 2010 VA examination for hearing loss, the Veteran's audiometric test results were as follows: HERTZ June 2010 500 1000 2000 3000 4000 Avg. RIGHT 10 20 35 60 55 43 LEFT 15 20 45 65 60 48 Maryland CNC word recognition scores were 92 percent for the right ear and 92 percent for the left ear. These scores correspond to Level I severity under Table VI of § 4.86, which corresponds to a noncompensable (zero percent) evaluation under Table VII. In an August 2010 statement by a licensed audiologist, the audiologist stated that they conducted a complete audiology examination of the Veteran and found the following results. His Maryland CNC scores were 68 percent for the right ear and 60 percent for the left ear. Audiometric scores were as follows: HERTZ Aug. 2010 500 1000 2000 3000 4000 Avg. RIGHT 20 40 70 75 75 65 LEFT 25 50 75 70 60 64 These scores correspond to Level V for the right ear and Level VI severity under Table VI of § 4.86, which corresponds to a 20 percent evaluation under Table VII. In an August 2013 hearing impairment disability benefits questionnaire (DBQ), with testing conducted in July 2013, the Veteran's audiometric test results were as follows: HERTZ July 2013 500 1000 2000 3000 4000 Avg. RIGHT 25 40 55 60 55 52.5 LEFT 25 40 55 60 60 54 Maryland CNC word recognition scores were 100 percent for the right ear and 100 percent for the left ear. These scores correspond to Level I severity under Table VI of § 4.86, which corresponds to a noncompensable (zero percent) evaluation under Table VII. During the Veteran's May 2016 VA examination for hearing loss, the Veteran's audiometric test results were as follows: HERTZ May 2016 500 1000 2000 3000 4000 Avg. RIGHT 15 35 55 55 50 49 LEFT 10 45 60 60 50 54 Maryland CNC word recognition scores were 94 percent for the right ear and 92 percent for the left ear. These scores correspond to Level I severity under Table VI of § 4.86, which corresponds to a noncompensable (zero percent) evaluation under Table VII. The Veteran has consistently asserted that his hearing loss is more severe than is reflected by his current evaluation. While the Veteran is competent to observe his hearing loss symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his hearing loss symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's VA treatment records reflect treatment for hearing loss but are negative for evidence supporting granting higher disability ratings. The Board finds the preponderance of the evidence is against the Veteran's claim for an increased rating. The only evidence supporting a higher disability rating is the August 2010 audiologist's statement and examination, which found more severe hearing loss according to puretone audiometric testing and significantly worse word discrimination scores. While their findings would support a 20 percent disability rating for bilateral hearing loss, the June 2010 VA examination, conducted approximately one month before the audiologist's July 2010 examination, revealed findings consistent with a noncompensable evaluation. While the Board lends the August 2010 audiologist's findings significant probative weight, it also notes that these findings are inconsistent with the previous VA examination's findings, the August 2013 VA examination's findings, which is the next audiometric test of record, as well as all other audiometric testing of record. All other tests reveal relatively consistent and stable patterns of hearing loss consistent with a noncompensable evaluation. Based on these facts, the Board finds the preponderance of the evidence is against finding that the Veteran's hearing loss has resulted in symptoms commensurate with a higher disability rating. Accordingly, the Veteran's claim for an increased rating for right ear hearing loss is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 2. to 4. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from February 26, 2006 to February 26, 2008 and in excess of 50 percent thereafter The Veteran asserts that his PTSD is more severe than is reflected by his current evaluations. Evaluations under 38 C.F.R. § 4.130 are "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18 ; 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for mental disorders, a 50 percent evaluation is contemplated 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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; and memory loss for names of close relatives, own occupation, or own name. Id. When evaluating disabilities arising from a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. 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(a). However, the rating agency shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. In this case, no evidence was received in the period from 2006 to February 2008; however, the record does reflect treatment for PTSD symptoms in the 1990s. See, e.g., April 1996 VA treatment records. The Veteran filed a claim for service connection for PTSD in February 2008. VA treatment records from March 2008 reflect the Veteran stating he had no thoughts of suicide or intent to act on them, but he had wished he was dead. In a March 2008 buddy lay statement, the Veteran's wife asserted that the Veteran experienced sleep problems, nightmares, and other problems due to PTSD. During the Veteran's April 2008 VA examination for PTSD, the VA examiner noted he was prescribed medication for self-reported PTSD. The Veteran reported suicidal ideation beginning im the 1970s, poor sleep, nightmares, insomnia, being startled by noise, and excessive drinking. He also reported occasional outbursts of rage and chronic depression, fatigue, and guilt. He was able to maintain work until an injury in 2003. May 2008 VA treatment records reflect the Veteran reporting that he was negative for suicidal thoughts or a history of suicidal thoughts. He reported mild depression and chronic nightmares. In a series of statements by a readjustment counselor from May to June 2008, the counselor stated that the Veteran reported emotional numbness, increased anxiety, anger issues, and chronic suicidal ideation. August and September 2008 treatment records reflect the Veteran denying suicidal ideation. In a June 2008 psychiatric evaluation, the physician stated that the Veteran was very dysphoric, anhedonic, chronically suicidal or homicidal and experienced many PTSD symptoms, including chronic pain, flashbacks, exaggerated startle response, insomnia, isolation, anger, memory and concentration problems, and periodic emotional numbness. In a series of statement by a licensed clinical social worker (LCSW) from June 2008 to April 2009, the Veteran reported occasional suicidal ideation, depression, nightmares, marital discord, emotional numbness, and chronic anger and anxiety. In a November 2008 psychiatric evaluation, the Veteran reported disorganized thinking, occasional hallucinations, sleep problems, problems with sex drive, suicidal and homicidal thoughts, depression, and that he was prescribed multiple medications for his depression and sleep problems. A March 2010 treatment note by a LCSW reflects the Veteran being positive for suicidal and homicidal ideation as well as depression, anxiety, isolating tendencies, and other symptoms of PTSD. During the Veteran's May 2010 VA examination for PTSD, the VA examiner found that his PTSD symptoms included chronic suicidal thought without intent to act on them, depression, sleep problems, anger, irritability, and nightmares. He also displayed moderate to severe social impairment, and his condition required continuous medication. Treatment notes from a counselor from July to September 2010 reflect the Veteran reporting he was negative for suicidal or homicidal ideation. In a July 2010 buddy lay statement, the Veteran's brother asserted that his brother was depression, anxious, and experienced chronic remorse and guilt. May 2011 VA treatment records reflect the Veteran reporting no suicidal ideation or history of such ideation. Treatment notes from a counselor from February to May 2011, June to August 2011, November 2011 to January 2012, March to May 2012, July to November 2012, and February to April 2013 reflect the Veteran reporting he was negative for suicidal or homicidal ideation. In a July 2013 PTSD DBQ, the examiner found the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms, consistent with a 10 percent disability rating. His symptoms included depression, anxiety, suspiciousness, near continuous panic or depression, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. In February 2016 VA treatment records, the Veteran was negative for suicidal ideation. During the Veteran's May 2016 VA examination for PTSD, the VA examiner found that his PTSD resulted in occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating. His symptoms included depression, anxiety, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, hypervigilance, and anger issues. The Veteran denied current suicidal or homicidal ideation, plan, or intent. He maintained good hygiene and activities of daily living. His short and long-term memory were without significant impairment. March and November 2018 VA treatment records reflect the Veteran being negative for PTSD and for suicidal ideation; however, he was positive for PTSD in April 2018. The Board notes that the Veteran has consistently asserted that his PTSD is more severe than is reflected by his current evaluations. While the Veteran is competent to observe his PTSD symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his PTSD symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For the period from February 26, 2006 to February 26, 2006, the Board finds the preponderance of the evidence is against granting a higher disability rating. While there is limited evidence of treatment for PTSD or psychiatric problems during this period, there is insufficient evidence to determine that his PTSD resulted in occupational and social impairment consistent with a 50 percent or greater rating. The Veteran has reported that he experienced chronic suicidal ideation for decades, but there is no documentation of treatment for such symptoms until 2008, after he filed his claim for service connection. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, for the period from February 26, 2006 to February 26, 2008, the Veteran's claim for an increased rating for PTSD is denied. For the period from February 26, 2008, the Board finds the preponderance of the evidence indicates the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. The Veteran's symptoms included depression, anger, sleep impairment, and chronic suicidal or homicidal ideation. Notably, while the Veteran endorsed actual plans to act on his suicidal ideation, there is no indication of specific plans or intent to act on his reported homicidal ideation. Additionally, the Veteran was negative for symptoms consistent with total occupational and social impairment. In a November 2008 psychiatric evaluation, the Veteran reported occasional hallucinations in the form of a shadow in the corner of his eye, but he was otherwise negative for hallucinations or delusions. He maintained proper hygiene, experienced only mild to moderate memory and concentration issues, and maintained relationships with his wife and family. Based on these facts, the Board finds that from February 26, 2008, the Veteran's PTSD symptoms resulted in occupational and social impairment most consistent with the criteria for a 70 percent disability rating. Accordingly, for the period from February 26, 2006 onward, the Veteran's claim for an increased rating for PTSD is granted; and a 70 percent rating is assigned for the period in question. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to April 25, 2012 is remanded. The Veteran asserts that he last worked fulltime in June 2005, and he became too disabled to work from June 2005 onward. See April 2012 TDIU Application. As of this decision, the Veteran meets the criteria for schedular consideration for TDIU from February 26, 2008 to July 14, 2010. See September 2013 codesheet. He would not meet the criteria for schedular consideration from July 14, 2010 to April 25, 2012his current effective date for TDIU. Id. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board does not have the authority in the first instance to award an extraschedular TDIU prior to referral to the Director of Compensation and Pension Service. Consequently, the issue of entitlement to TDIU is referred to the Director of the Compensation Service (Director) for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following actions: 1. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. Include a copy of this remand as well as a full statement as to the Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). The response from this office must be included in the claims file. 2. After completion of the preceding action, readjudicate the Veteran's claim for TDIU prior to April 25, 2012. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.