Citation Nr: 21064566 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-38 063 DATE: October 20, 2021 ORDER Entitlement to service connection for vertigo is denied. Entitlement to service connection for right ear otalgia is denied. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. Vertigo was not documented during service, nor did it manifest within one year of separation from service, and the weight of the competent evidence is against finding a nexus between the Veteran's current disorder and service. 2. The weight of the competent evidence is against finding a nexus between the Veteran's current right ear otalgia and service. 3. The Veteran's acquired psychiatric disorder is productive of occupational and social impairment with deficiencies in most areas but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right ear otalgia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2019 and were remanded to obtain VA examinations. The post-Remand record shows that the Veteran failed to show for his VA examinations which were scheduled for December 2019. Therefore, the Board finds that there has been substantial compliance with the Remand and adjudication of his appeal must go forward based on the evidence of record. See 38 C.F.R. § 3.655 (when a claimant fails to report for an examination scheduled in conjunction with a compensation claim, the claim shall be rated based on the evidence of record; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that that "[t]he duty to assist is not always a one-way street." If a veteran desire's help with his claims, he must cooperate with VA's efforts to assist him, to include reporting for scheduled examinations)). It is valuable to note that the Veteran has been in receipt of a total disability rating based on individual unemployability since February 17, 2012. The Veteran has also been in receipt of special monthly compensation under 38 U.S.C. § 1114 subsection (k) and subsection (s) since February 17, 2012. In this case, the Board is only dealing with the limited outstanding issues that it must address under the law. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 1. Entitlement to service connection for vertigo. The Veteran contends he has a diagnosed dizziness condition that is due to active service. Specifically, the Veteran contends he ruptured his eardrums on numerous occasions in Vietnam and that the ruptured eardrums caused his vertigo. See July 2017 VA Form 9. The Board notes the Veteran is already service connected for tinnitus and high frequency sensorineural hearing loss in the right ear. In April 2019, the Board remanded the issue of entitlement to service connection for vertigo to obtain another medical opinion. However, the Veteran did not show up to the scheduled examination. See December 2019 Exam Scheduling Request Contention Cancellation. The Veteran underwent a VA examination in January 2017 for his vertigo. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In reaching their rationale, the examiner explained that the Veteran's dizziness is caused by pressure in the middle ear and is not due to an issue with hearing loss. Furthermore, the pressure in the middle ear started many years after the Veteran's military service. Although the Veteran reported that he had perforated his eardrum during military service, his service treatment records are silent for a perforated eardrum. Furthermore, the Veteran denied a history dizziness and having a perforated eardrum during an October 2002 audiology consult. See October 2002 Audiology Consult, San Diego VAMC. Moreover, the Veteran's service treatment records are negative for complaint or treatment of a dizziness condition while in service. Additionally, the Veteran's record is negative for any link between a diagnosed dizziness disability and his time in service. After a review of all probative evidence of record, the Board finds that the preponderance of the evidence is against this claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, entitlement to service connection for vertigo is denied. 2. Entitlement to service connection for right ear otalgia. The Veteran contends he has right ear otalgia that is due to active service. A January 2017 VA examination shows the Veteran has a current diagnosis of otalgia. April 1968 service treatment records show the Veteran was seen for right ear otalgia. The Veteran underwent a VA examination in January 2017 for his right ear otalgia. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. In reaching their rationale, the examiner noted there is no pathophysiological way to support the current otalgia being caused by acoustic trauma while in service. In an April 2013 Correspondence Letter, the Veteran contended that his right ear otalgia (ear pain) had increased since 2002. However, October 2002 VA treatment records show that the Veteran denied a history of otalgia. See October 2002 Audiology Consult, San Diego VAMC. Furthermore, the Veteran did not report ear pain until January 2013. See January 2013 Otolaryngology Consult, Long Beach VAMC. The Veteran's recollection of events, particularly his post-service right ear otalgia, is simply not accurate. Simply stated, the Veteran is not a good historian of his own disability, providing repeatedly inaccurate information. The Board has considered obtaining additional evaluations, but considering the evidence, and the Veteran's history of providing imprecise information, the Board finds that such an act would not provide useful information that could provide a basis to grant this claim. Considering these facts, the Board believes it must give more weight to the January 2017 VA examination. After a review of all probative evidence of record, the Board finds that the preponderance of the evidence is against this claim. Gilbert, 1 Vet. App. at 53; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, entitlement to service connection for right ear otalgia is denied. Increased Rating Disability evaluations are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) at 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 disability. 3 8 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Disabilities must be viewed in relation to their history. 38 C.F.R. § 4.1. The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA may consider assigning staged ratings if different ratings are warranted for different time periods based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. 3. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder. The Veteran contends that he is totally disabled due to his acquired psychiatric disorder. Alternatively, he contends that he is entitled to a 100 percent non-schedular rating for his acquired psychiatric disorder. See July 2017 VA Form 9. In April 2019, the Board remanded the issue of entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder to obtain a more recent medical opinion. However, the Veteran did not show up to the scheduled examination. See December 2019 Exam Scheduling Request Contention Cancellation 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. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 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 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; or memory loss for names of close relatives, own occupation or own name. VA treatment records, the October 2013 VA examination, and the Veteran's lay statements show that the Veteran's acquired psychiatric disorder manifested by symptoms associated with a 70 percent rating, such as passive suicidal ideation, impaired impulse control, and inability to establish and maintain effective relationships that cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. He also had symptoms that are not listed with a specific rating, such as hypervigilance. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Further, hypervigilance is similar to having difficulty adapting to stressful circumstances, which is contemplated by the assigned 70 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the October 2013 VA examination. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disabilities, he is not totally socially impaired. In fact, recent treatment records contain reports that the Veteran gets into fewer arguments with his wife and has a partner in business where he is ready to take on more contracts (this would suggest that the Veteran is working this issue is not before the Board at this time). While the Veteran believes that he is entitled to a higher rating on the basis of Global Assessment of Functioning (GAF) scores, "[a]n adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness." Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). 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 100 percent rating. The criteria for a 100 percent or higher rating have not been met and the appeal must be denied. The Veteran also seeks an extraschedular rating for his acquired psychiatric disorder. The Board generally must consider referral for extraschedular consideration only "[w]here there is evidence in the record that shows exceptional or unusual circumstances or where the Veteran has asserted that a schedular rating is inadequate." Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (quoting Yancy v. McDonald, 27 Vet. App. 484, 493 (2016) (internal quotations omitted)). In Doucette, issued after the December 2014 remand, the United States Court of Appeals for Veterans Claims (Court) held that an extraschedular rating is not warranted if the manifestations of the disability are contemplated by the rating criteria. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Upon a review of the record, the Board finds that entitlement to an extraschedular rating for an acquired psychiatric disorder is not warranted. Initially, it is relevant to note that the available schedular rating includes consideration of a host of symptoms ranging from those that are mild and transient, to those that cause total social and occupational impairment pursuant to the General Rating Formula for Mental Disorders included at 38 C.F.R. § 4.130. Importantly, because the use of the term "such as" in the rating criteria demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, as shown above, the entire host of his symptoms were considered in assigning his rating, not just those listed in the General Rating Formula for Mental Disorders. Indeed, the available evidence indicates that the Veteran's acquired psychiatric disorder symptoms are contemplated by the currently assigned schedular rating and the rating schedule itself. In this regard, VA treatment records, examination reports and lay statements of record reveal that the Veteran's acquired psychiatric disorder symptoms include, anxiety, depressed mood, suspiciousness, panic attacks, chronic sleep impairment, impairment of short and long-term memory, flattened affect, passive suicidal ideation, impaired impulse control, hypervigilance, and inability to establish and maintain effective relationships that cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. These symptoms are contemplated by the Veteran's schedular rating for his psychiatric disorder under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. Moreover, even if one were to assert that these symptoms are not contemplated by the rating schedule, there is no evidence to suggest that the Veteran's acquired psychiatric disorder symptoms have caused marked interference with employment or frequent periods of hospitalization, such that his disability picture could be described as exceptional or unusual. Indeed, the Veteran does not contend, and the record does not suggest that he has been hospitalized for his psychiatric symptoms frequently during the appeal. While the Veteran has reported his psychiatric symptoms interfere with employment, a TDIU has already been granted. Thus, the record does not support a finding that the Veteran's symptoms are not contemplated by the schedule or that they have created an exceptionally unusual disability picture. Thus, the Board finds that a referral for an extraschedular rating is not warranted for the Veteran's acquired psychiatric disorder. In reaching the above conclusion, 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 the instant appeal. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49 at 53. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.