Citation Nr: 21066403
Decision Date: 10/29/21	Archive Date: 10/29/21

DOCKET NO. 15-26 206
DATE: October 29, 2021

ORDER

Entitlement to an increased rating of 50 percent, but no higher, prior to October 17, 2019 for posttraumatic stress disorder (PTSD) is granted.

Entitlement to service connection for a left ear hearing loss disability is granted.

FINDINGS OF FACT

1. Prior to October 17, 2019, the Veteran's PTSD has been manifested by chronic sleep impairment, nightmares, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships; resulting in occupational and social impairment with reduced reliability and productivity.

2. A left ear hearing loss disability is causally related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for an increased rating of 50 percent, but no higher, prior to October 17, 2019, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411.

2. The criteria for service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1969 to December 1971 and received the Combat Infantryman Badge.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Board remanded the issues on appeal for additional development in May 2019. VA treatment records have been associated with the file, and the requested examinations and opinion were obtained in November 2019. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

In May 2019 the Board also granted service connection for tinnitus, which constituted a full grant of the benefits sought on appeal as to that issue. Ab v. Brown, 6 Vet. App. 35 (1993). The Board further denied service connection for bladder cancer, a heart disability, and cerebrovascular accidents, which the Veteran did not appeal. 38 U.S.C. § 7266; 38 C.F.R. § 20.1100. As such, those issues are no longer on appeal. 

Finally, while on remand in a July 2020 rating decision the RO granted a 100 percent rating for PTSD, effective October 17, 2019. As this constitutes a full grant of the benefits sought on appeal, the issue of entitlement to an increased rating for PTSD is moot from that date forward. Ab, 6 Vet. App. 35. However, as a 100 percent rating was not awarded for the entire period on appeal, the Board must address the issue of entitlement to an increased rating for PTSD prior to October 17, 2019. The issue has been recharacterized to reflect the date the 100 percent rating was assigned.

The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2018. A transcript of the hearing is of record.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to 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 diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

1. Entitlement to an increased rating for PTSD.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id.

The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Diagnostic Codes 9201 through 9440 are rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent rating is assigned for occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. 

A 50 percent rating is assigned 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, 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 rating is assigned 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 which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id.

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 hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117.

The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018).

In November 2018 the Veteran testified that he was largely socially isolated, and that he primarily interacted only with immediate family. The Veteran reported that he was afraid of crowds, and that he experienced nightmares, irritability, and sleep impairment. The Veteran further testified that he was currently married, and that he had retired from his prior employment due to a series of cerebrovascular accidents (CVAs). These statements are competent, and there is no evidence that they are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, they are entitled to significant probative weight.

The Veteran was provided with VA examinations in March 2014 and October 2019. At the March 2014 examination the Veteran reported that he had been married twice. He stated that the first marriage lasted five years and that he had been married to his current wife for approximately 25 years. The Veteran reported one child from his first marriage with whom he had an okay relationship, and further stated that he had a really good relationship with his current spouse. Occupationally, the Veteran stated that he had worked in construction for 30 years, and retired due to CVAs and vascular problems in approximately 2013.

Concerning his symptoms, the Veteran reported experiencing impaired sleep, nightmares, and irritability with no violence. The Veteran further stated that he avoided crowds and tended to self-isolate. The examiner noted that the Veteran was cooperative and was oriented to person, place, and time. The Veteran's dress and hygiene were noted to be appropriate, and his speech, eye contact, thought processes, thought content, alertness, and consciousness were all found to be normal. The examiner stated that the Veteran appeared anxious when discussing his stressor, but otherwise stated that there was no evidence of delusions, paranoia, or self-directed or other-directed violence.

During the October 2019 examination, the Veteran stated that he had been married to his second wife for approximately 30 years, and that he did not really socialize outside of his immediate family. Occupationally the Veteran stated that he retired from work after experiencing a series of CVAs. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than one a week, sleep impairment, mild memory loss, flattened affect, difficulty understanding complex commands, disturbances of motivation and mood, and disorientation to time or place. On examination the Veteran was noted to be cooperative and pleasant. The Veteran was oriented in two spheres, but did not know what day of the week it was. Eye contact and speech were normal, and the Veterans' mood was congruent with his affect. The examiner noted that the PHQ-9 was administered, with the Veteran's score reflecting moderate to severe psychological distress.

There is no evidence that the above examiners were either not competent or credible. Further, the assessments were based on both the Veteran's account of the frequency and severity of his symptoms as well as each examiner's own objective psychiatric examination of the Veteran. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

VA treatment records from May 2013 to October 2019 generally reflect reports of sleep impairment, nightmares, depressed mood, anxiety, and a tendency to self-isolate. The Veteran also intermittently reported that his depression interfered with his ability to get motivated to do things, such as visit friends. Mental status examinations conducted during this period consistently note that the Veteran's orientation, hygiene, behavior, eye contact, speech, and thought processes and content were normal. During the period at issue the Veteran's mood was intermittently noted to be agitated, but his affect was consistently congruent with his mood. The records further reflect that the Veteran consistently denied any suicidal ideation, and all suicide screenings were negative. The Veteran was administered PHQ-9 and GAD-7 tests in May 2013, June 2013, August 2013, October 2013, June 2016, October 2016, and December 2016, with the Veteran's scores generally reflecting moderate to severe anxiety and depressive symptoms. 

The records reflect that beginning in approximately May 2016, the Veteran stated that one year prior he began having anxiety attacks when waking up following nightmares. In May 2016 the Veteran also began reported impaired an onset of concentration and short-term memory problems. In January 2014 and May 2014, the Veteran reported being active in his garden and fishing with his wife. Further, in January 2014 the Veteran reported wanting to go metal detecting with a friend, and in September 2016 reported that a friend he had last seen a year prior was coming to visit. In addition, in July 2016 the Veteran agreed to make an effort to either fish or visit a friend once a week.

Based on the foregoing, the Board finds that an increased rating of 50 percent, but no higher, prior to October 17, 2019 is warranted. Throughout the period on appeal, the Veteran has reported experiencing depression and anxiety. Further, the Veteran's PHQ and GAD scores reflect that the symptoms were either moderate or severe throughout the period currently at issue. The Veteran also reported in his treatment records that his depression often prevented him from doing things that he would otherwise do, such as socialize or engage in hobbies. In addition, the Veteran reported experiencing irritability. The Board finds that these symptoms are more accurately categorized as disturbances of motivation and mood, as noted by the October 2019 examiner.

Further, in 2016 the Veteran reported that in 2015 he began experiencing anxiety attacks after waking up from nightmares, which the October 2019 examiner characterized as panic attacks occurring more than once per week. Finally, treatment records intermittently reflect that the Veteran reported that he would go out and socialize more if not for his depression and anxiety. However, the Veteran also sporadically indicated that he had friends that he would see, and consistently endorsed good relationships with his immediate family. As such, the Board finds that the Veteran's symptoms resulted in difficulty establishing and maintaining effective social relationships. Based on the foregoing, the Board finds that the Veteran's level of social and occupational impairment, when considering the type, frequency and severity of his symptoms, is more nearly approximated by a 50 percent rating for PTSD, which contemplates disturbances of both motivation and mood, panic attacks more than once a week, and difficulty establishing and maintaining relationships. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411.

However, an increased rating in excess of 50 percent is not warranted in this case. Both the examination reports and treatment records prior to October 17, 2019 consistently noted that the Veteran's behavior was normal during appointments and examinations, and that he presented with normal grooming and hygiene. Speech and communication were consistently noted to be normal. The Veteran was consistently noted to be oriented in all spheres, with no evidence of impairment of thought processes of content, delusions, or hallucinations. While the October 2019 examiner noted that the Veteran was disoriented to time or place, treatment records from May 2013 to October 2019 all note that the Veteran was oriented in all spheres at all of his appointments, psychiatric other otherwise. As there is no evidence of disorientation to time or place prior to the October 2019 report, an increased rating based on that symptom is not warranted.

Although the Veteran's treatment records reflect that he has consistently reported feelings of depression and anxiety, there is no evidence that these symptoms interfere with his ability to function independently, appropriately, and effectively. The evidence of record generally reflect that the Veteran is able to tend to his activities of daily living, as well as engage in some hobbies such as gardening and fishing. While the evidence shows the Veteran generally tends to isolate in his house, there is no evidence indicating that his depression or anxiety otherwise interfere with his ability to tend to his own needs or complete tasks as needed. As such, the Board finds that the Veteran's depression and anxiety do not rise to the level of severity contemplated by higher ratings. 

While during this period the Veteran endorsed some concentration and short-term memory issues, there is no evidence that the Veteran has memory impairment so severe that he cannot remember closely held information such as his own name. Indeed, the record reflects that the Veteran has consistently been able to accurately recount his in-service stressors, his recent medical history and symptoms, and both recent and far removed life events to examiners and other medical professionals. As such, the Board finds that the Veteran's reported concentration and short-term memory impairment do not more nearly approximate the severity contemplated by higher ratings.

The Board notes that the Veteran has endorsed irritability. However, the Veteran has also consistently denied that these periods of irritability are accompanied by violence of any kind, and further denied any legal or behavioral issues during both VA examinations. The Veteran has consistently denied any suicidal ideation, and further at no point has indicated that he has considered doing harm to others. As such, the Board finds that the reports of irritability are more nearly approximated by the 50 percent rating assigned herein, which contemplates disturbances of mood, as opposed to other ratings which consider actual outburst of violence or homicidal ideation.

Finally, the evidence does not reflect that the Veteran overall has either impairment in most areas or total occupational and social impairment. The Veteran's judgment, thought processes, and thought content have been consistently noted to be normal. The Veteran has also generally reported that he has good to very good relationships with his immediate family. Further, in January 2014 and September 2016 treatment records, the Veteran discussed either meeting with friends or making plans to meet with friends. While the evidence of record clearly reflects that the Veteran has a tendency to self-isolate, the fact that he has been able to maintain good relationships with his immediate family reflects that symptoms have not resulted in deficiencies in family relationships or total social and occupational impairment. Finally, the Veteran has not attributed any occupational impairment to his PTSD, instead repeatedly stating that he retired from his job in construction due to his CVAs and vascular issues. 

The Board notes that the October 2019 examiner stated that the Veteran had total occupational and social impairment. However, the examiner did not reconcile this finding with the evidence of record that shows the Veteran has consistently reported good relationships with his immediate family, as well as the January 2014 and September 2016 records in which the Veteran discusses either seeing or making plans with friends. To the extent that the October 2019 examiner's assessment was based on the noted disorientation to time or place, as discussed above such disorientation was not displayed at any point prior to the October 2019 examination report, with treatment records consistently noting the Veteran to be fully oriented on examination. As such, overall the Board finds that prior to October 17, 2019 the Veteran's symptoms, considering their severity and frequency, did not result in occupational and social impairment with deficiencies in most areas or total social and occupational impairment. 

All potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). Therefore, the Board finds that an increased rating of 50, but no higher, prior to October 17, 2019 is warranted. However, the preponderance of the evidence is against a finding that a rating in excess of 50 percent is warranted to October 17, 2019. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

Service Connection

Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309.

2. Entitlement to service connection for left ear hearing loss.

March 2014 and November 2019 VA examination reports shows that the Veteran has left ear hearing loss considered to be disabling for VA purposes. 38 C.F.R. § 3.385. Concerning an in-service injury, the Veteran has been awarded Combat Infantryman Badge, and therefore the Veteran's lay statements, on their own, may be sufficient to establish the presence of an in-service injury if it is consistent with the nature of his combat service. 38 U.S.C. § 1154(b). The Veteran has reported that while on patrol in Vietnam a fellow service member stepped on a landmine which exploded, after which the Veteran noticed a decrease in hearing acuity. This account is consistent with the nature of combat service, and as such the Board finds the Veteran's statements are sufficient to establish the presence of the in-service injury. 38 U.S.C. § 1154(b).

During the course of the appeal, the Veteran has asserted that his hearing loss has been continuous since his separation from service. This assertion is competent as a lay person may testify to the onset and persistence of lay observable symptoms such as decreased hearing acuity, and there is no evidence that the statements are not credible. Jandreau, 492 F.3d 1372. As such, they are entitled to significant probative weight as to the continuity of hearing loss since service.

VA attempted to obtain medical opinions concerning the etiology of the Veteran's hearing loss in March 2014 and November 2019. The March 2014 examiner stated that he was unable to provide an opinion without resorting to mere speculation because the Veteran's speech reception thresholds (SRTs) and pure tone averages (PTAs) were not in agreement, resulting in poor inter-test reliability. The Board notes that opinions stating that an opinion cannot be given without resorting to mere speculation may be adequate, if supported by a sufficient rationale. Jones, 23 Vet. App. 382. Here, the examiner cited to the inconsistent testing results as the basis for his opinion. However, this rationale implied that an opinion can be given, provided better testing results are obtained, and therefore is inadequate as it clearly stated that an answer could be provided with additional evidence. Id. 

On remand, a new examination and opinion were obtained in November 2019. The November 2019 examiner stated that it was less likely than not that the left ear hearing loss was causally related to service. In support of this determination, the examiner noted that the Veteran's entrance and separation service hearing examinations both showed normal hearing on the left, and that any variability was within normal ranges. The examiner acknowledged that while the Veteran had a high probability of noise exposure in service, ultimately his hearing examinations did not show a change in acuity. However, the examiner in no way addressed the Veteran's competent statements that he noticed decreased hearing acuity after the explosion. Dalton v. Peake, 21 Vet. App. 23 (2007). As such, the opinion is inadequate and entitled to no probative weight. 

Treatment records associated with the file reflect consistent reports of hearing loss, but no opinions or statements concerning its etiology.

Based on the foregoing, the only probative evidence of record is the Veteran's statements that he has experienced continuous decreased hearing acuity since the explosion during his period of service in Vietnam. The March 2014 opinion did not come to a clear conclusion as to whether or not the Veteran's left ear hearing loss was due to service, and the November 2019 opinion failed to consider the Veteran's reports of hearing loss since the in-service explosion. As such, in the interest of affording the Veteran the full benefit of the doubt the Board finds that the evidence of record shows that the Veteran has continuously experienced left ear hearing loss since his in-service noise exposure. Therefore, service connection for a left ear hearing loss disability is granted. 38 C.F.R. §§ 3.102, 3.303(b).

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.