Citation Nr: A21017307 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 200504-85051 DATE: October 26, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. During the rating period on appeal, the Veteran's service-connected PTSD was manifested by symptoms that more closely approximate functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity. 2. For the rating period on appeal, the Veteran's bilateral hearing loss was manifested by no more than Level I hearing impairment in both ears. 3. The probative evidence fails to establish that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.85, Diagnostic Code 6100. 3. The criteria for a TDIU were not met on a schedular basis and referral for extraschedular consideration was not warranted. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1967. The decision on appeal was issued in March 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In May 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board of Appeal (Notice of Disagreement) (NOD) requesting that the appeal be processed under the Evidence Review option; therefore, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction's (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his or her representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule. If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD from August 8, 2018, to March 12, 2020. The Veteran seeks a higher initial disability rating for his service-connected PTSD. In rating mental disorders under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. 38 C.F.R. § 4.130; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). 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); Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). The Veteran's PTSD is currently rated as 50 percent disabling under Diagnostic Code (DC) 9411, which compensates specifically for that disability, and applies the General Rating Formula for Mental Disorders. As per DC 9411, 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 (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. Id. 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 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. Id. Finally, a 100 percent rating is granted 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. Id. In considering the frequency, severity, and duration of the Veteran's symptoms, the Board concludes that an initial rating greater than 50 percent is not warranted for his service-connected PTSD during the period on appeal. In that regard, VA treatment records demonstrate the Veteran had a positive screen for PTSD. See April 2018 VA treatment records. The Veteran denied suicidal and homicidal ideation. Id. Private treatment records in October 2017 and April 2018 noted the Veteran was cooperative with appropriate mood and affect, non-suicidal with no psychiatric symptoms specified. A July 2019 record notes the Veteran was seen by a nurse practitioner and diagnosed with PTSD. See Medical Treatment Records received October 2019. The Veteran reported his symptoms included severe anxiety; panic attacks that were becoming worse and more frequent over the last several years; claustrophobia; avoids malls and large crowds; loss of sleep; and nightmares. See October 2019 correspondence. The Veteran's spouse stated the Veteran's symptoms affects their social life and going out; the Veteran has become more anxious and paranoid; easily startled; and wakes 3 or 4 times during the night due to nightmares. See September 2019 buddy statement. The Veteran was afforded an initial PTSD VA examination in February 2020. The Veteran reported that after discharge, he had challenges adjusting socially; has become more irritable and poorer tempered; has a positive relationship with his children and denied challenges in his relationship and with the general public; has the ability to create and maintain friendships; and avoids crowds and small spaces. See February 2020 VA examination. The Veteran reported he worked in general maintenance and he became suspicious to include paranoia for his safety and it effected his ability to maintain his job. Id. The VA examiner noted the Veteran's symptoms included depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. Id. The VA examiner noted the Veteran denied any current or history of suicidal and homicidal ideation; had no self-harming behaviors; denied delusions, hallucinations, and any psychiatric hospitalizations; the Veteran was dressed casually and appropriate; hygiene and grooming was appropriate; thought content was coherent and linear; speech unremarkable with appropriate tone, volume, and rate; and the Veteran's remote and recall memory was within normal limits. Id. The VA examiner concluded the Veteran's overall symptoms manifested in occupational and social impairment with reduced reliability and productivity. Id. Based on the evidence of record, the Board finds that the preponderance of the evidence for the entire period on appeal, demonstrates that the Veteran's PTSD more closely approximate functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity. Though the February 2020 VA examiner noted the Veteran had difficulty in adapting to stressful circumstances (including work or a worklike setting), the Veteran has not been shown to have many of the symptoms consistent with the criteria listed for a 70 percent rating 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; or inability to establish and maintain effective relationships. Additionally, the Veteran nor his representative has presented any argument or evidence to support a higher rating. Moreover, the Board has not found any further evidence which would support a higher rating for his psychiatric disorder. See Mauerhan, 16 Vet. App. at 444. Therefore, the Board finds a rating in excess of 50 percent under DC 9411 is not warranted. As such, the probative evidence of record demonstrates the Veteran's disability picture most nearly approximates the criteria for a 50 percent rating under DC 9411. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, an initial rating in excess of 50 percent for service-connected PTSD is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss from August 8, 2018, to March 12, 2020. The Veteran seeks a higher initial disability rating for his service-connected bilateral hearing loss. The Veteran's bilateral hearing loss is currently evaluated as noncompensable under 38 C.F.R. § 4.85, DC 6100. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by Puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the Puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral. See 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Id. In addition, when the Puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). Table VIA, which allows for rating based only on Puretone threshold averages, is used instead of Table VI when an examiner certifies that the use of speech discrimination testing is not appropriate or when there is an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.85(c). Turning to the relevant evidence of record, the Veteran was initially provided a VA audiometry examination in February 2020. Upon examination, audiometry findings for the right ear showed Puretone thresholds of 25 decibels at 1,000 Hz; 15 decibels at 2,000 Hz; 25 decibels at 3,000 Hz; and 45 decibels at 4,000 Hz. See February 2020 VA examination. For the left ear, audiometric findings showed Puretone thresholds of 15 decibels at 1,000 Hz; 25 decibels at 2,000 Hz; 25 decibels at 3,000 Hz; and 50 decibels at 4,000 Hz. Id. Speech recognition ability was 94 percent for the right ear and 96 percent for the left ear. Id. The Puretone threshold averages were 27.5 (rounded up to 28) for the right ear and 28.75 (rounded up to 29) for the left ear. Id. Applying these results to Table VI of the Schedule reveals numeric designations of Level I for both ears. 38 C.F.R. § 4.85, Table VI. Applying these findings to Table VII of the Schedule results in a noncompensable rating. The Board finds the February 2020 VA audiometric testing results probative and entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran's VA and private treatment records do not contain any audiometric testing results or indicate an increase is warranted for his service-connected bilateral hearing loss. The Veteran nor his representative have provided any evidence or argument to support an increased rating is warranted. Therefore, the competent evidence of record does not reflect that the Veteran's bilateral hearing loss warrants a compensable rating. To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by his current disability rating, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as difficulty hearing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA's tables for rating hearing loss disability because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as is explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a compensable rating for the Veteran's service-connected bilateral hearing loss is warranted. Based on the foregoing, the Board finds that the criteria for a compensable initial rating for the Veteran's bilateral hearing loss have not been met at any time during the relevant rating period. As the preponderance of the evidence is against the assignment of a compensable initial rating for his bilateral hearing loss, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. Entitlement to a TDIU from August 8, 2018, to March 12, 2020. The Board notes that a TDIU is part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. Here, the Veteran is in receipt of a 50 percent disability rating for his PTSD; 20 percent disability rating for prostate cancer; 10 percent disability rating for tinnitus; and noncompensable ratings for his bilateral hearing loss and erectile dysfunction. The Veteran's combined rating is 60 percent for the entire period of appeal. Thus, the Veteran does not meet the minimum schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) also provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extra-schedular rating of unemployability. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the issue before the Board is whether a remand for referral for extraschedular consideration for TDIU is warranted. The initial extraschedular referral decision under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). For the following reasons, a referral to the Director for consideration of TDIU under 38 C.F.R. § 4.16(b) is not warranted. In regard to the Veteran's prostate cancer and erectile dysfunction, a January 2020 VA examiner noted the Veteran's prostate cancer and erectile dysfunction do not impact his ability to work. See January 2020 VA examinations. Additionally, the Veteran nor his representative contend that the Veteran's prostate cancer and erectile dysfunction prevent him from securing or following a substantially gainful occupation. In regard to the Veteran's PTSD, the Veteran reported that he has worked an array of jobs including a dishwasher, a lock and key shop owner, general maintenance, a mortgage loan broker, and in real estate for 10 years. See February 2020 VA examination. The Veteran is retired and reported that he became suspicious to include paranoia for his safety and it effected his ability to maintain his job, unable to drive to the job placement without feeling distressed and panicked, and unable to go to the store. Id. However, the VA examiner noted the Veteran's overall PTSD symptoms manifested at no worse than occupational and social impairment with reduced reliability and productivity. Id. The VA examiner also noted the Veteran is capable of managing his financial affairs. Id. In regard to the Veteran's bilateral hearing loss, a February 2020 VA examiner noted the functional impact of the Veteran's bilateral hearing loss makes it hard for the Veteran to hear or understand people sometimes. See February 2020 VA examination. However, there is no indication that the Veteran's bilateral hearing loss renders him unable to secure or follow substantially gainful employment. Additionally, the Veteran nor his representative contend that the Veteran's bilateral hearing loss prevents him from securing or following a substantially gainful occupation. The Veteran has not submitted an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Though the Veteran's service-connected PTSD and bilateral hearing loss impact his ability to work, the evidence does not demonstrate the Veteran is unable to secure or follow substantially gainful employment due to these conditions. (Continued on the next page) For the foregoing reasons, the preponderance of the evidence reflects that the functional impairment from the Veteran's service-connected disabilities has not been shown to be so severe as to preclude substantially gainful employment. Therefore, the Board finds that the record does not contain sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. Accordingly, the procedures for referring this matter for extraschedular TDIU consideration is not warranted at this time. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.