Citation Nr: 21066662 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-23 913 DATE: November 1, 2021 ORDER Prior to March 15, 2021, entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. From March 15, 2021, entitlement to an evaluation higher than 70 percent for PTSD is denied. Entitlement to an initial compensable rating evaluation for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent for mild patellar enthesopathy, right knee (claimed as right knee condition), is remanded. FINDINGS OF FACT 1. Prior to March 15, 2021, the Veteran's PTSD manifested at worst, as occupational and social impairment with reduced reliability and productivity. 2. At no point during the course of the appeal did the Veteran's PTSD cause total occupational and social impairment. 3. At worst, the Veteran's left ear hearing loss is at a Level III and his right ear hearing loss is at a Level I. CONCLUSIONS OF LAW 1. Prior to March 15, 2021, the criteria for entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From March 15, 2021, the criteria for entitlement to a rating higher than 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to an initial compensable rating evaluation for bilateral hearing loss have not been met. 38 U.S.C. § § 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.87, Diagnostic Code (DC) 6100 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from February 1968 to February 1970. The prior February 2021 Board decision and remand included the above issues, plus entitlement to service connection for residuals of malaria and ischemic heart disease. Both of these issues were granted on remand. This was a full grant of benefits on appeal for these issues. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The July 2021 Supplemental Statement of the Case (SSOC) noted the issue of an earlier effective date of ischemic heart disease. This was improper, as the effective date is a downstream issue and the claim does not continue on appeal after being granted. Id. As it is still within one year of the July 2021 rating decision, the Veteran may still contest the effective date by filing a Notice of Disagreement as to that aspect of the decision. The lack of inclusion of the increased rating for the knee in the SSOC is discussed in the remand below. Increased Rating Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Board will consider entitlement to "staged" ratings to compensate for times when the disability may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Prior to March 15, 2021, entitlement to an initial rating higher than 50 percent for PTSD. 2. From March 15, 2021, entitlement to an evaluation higher than 70 percent for PTSD All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 30 percent rating is warranted 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 occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A February 2013 private examination report showed the Veteran had symptoms of PTSD which included, but were not limited to insomnia, sleep deprivation, anxiety, isolation, memory loss, hypervigilance, depression, isolation, and agoraphobia. The Veteran submitted a psychological evaluation from a private examiner in March 2013. The examiner noted the following symptoms: poor impulse control, blunted affect, hyperarousal, depression, reexperiencing, and avoidance. Regarding social impairment, the Veteran reported a good relationship with his wife since 2001. Regarding occupational impairment, the Veteran reported that he was self-employed due to difficulties getting along with others, but has learned to "walk away." The Veteran was afforded a VA PTSD examination in December 2013. The examiner noted a diagnosis of PTSD. His symptoms included depressed mood and impaired impulse control, such as unprovoked irritability with periods of violence. Regarding occupational impairment, the Veteran still participates in his business to keep busy. Regarding social impairment, the Veteran reported a good relationship with his wife of 12 years and his son. He had some friends and family members with whom he socialized. The examiner characterized his PTSD as a mental condition has been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran submitted a private psychological evaluation dated in November 2014. The examiner sated that the Veteran was unable to hold friends and was estranged from his older son. He had problems with anger and hypervigilance. The examiner noted trouble with social distancing and estrangement, in additional to marked avoidance of crowded circumstances. Occupational troubles characterized by excessive arguing were also apparent. A May 2015 rating decision increased the Veteran's PTSD rating to 50 percent. In a February 2017 psychology record, the Veteran reported an increase in symptoms. He noted marital difficulties, problems with anger, strong need for self-isolation, and hypervigilance. A cognitive assessment showed he was fully oriented but had some trouble with "visuomotor precision," serial sevens, language, and delayed recall measures. In addition to PTSD, the psychologist noted persistent depressive disorder. The Veteran was afforded a VA PTSD examination in March 2021. The examiner noted a diagnosis of PTSD. The Veteran reported that he had been having passive death wishes but was able to redirect them and would not act on them because of his faith. He continued to live with and have a good relationship with his wife and was reconnecting with his son. He had no new occupational history to report. His symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner characterized his PTSD as manifesting occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, al-though generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In a May 2021 rating decision, the RO increased the Veteran's PTSD evaluation to 70 percent, effective March 15, 2021, the date of the VA examination. Upon review of the record, the Board finds that ratings in excess of those currently assigned are not warranted. Prior to March 15, 2021, the Veteran's symptoms included depressed mood, anxiety, sleep impairment, disturbance of motivation and mood, and difficulty in adapting to stressful circumstances. While the Veteran did experience some social isolation and occupational impairment, including inability to establish and maintain effective relationships, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. The Veteran continued to have a good marriage and relationship with one of his sons. The Veteran's mental status examinations were normal; and he denied suicidal or homicidal thoughts. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. From March 15, 2021, the Veteran's symptoms are consistent with a 70 percent rating. He had no occupational changes. In addition to his existing symptoms, the record memory loss and language impairment. However, the record did not show total occupational and social impairment, as the Veteran continued to maintain a good marriage and relationship with his son. Additionally, the impairment does not typify symptoms for a higher rating. The preponderance of the evidence is against finding that a 100 percent rating is warranted and the Veteran's claim for an increased rating is denied. 3. Entitlement to an initial compensable rating evaluation for bilateral hearing loss The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In a February 2013 private report of consultation, the examiner noted that: "Testing reveals the [the Veteran] has a bilateral hearing loss under normal conditions of 40% of the left ear and 30 % of the right ear." The Veteran was afforded a VA audio examination in December 2013. An audiogram showed the Veteran's Maryland CNC Word List speech recognition score was 96 percent in the left ear and 96 percent in the right ear and his pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Left 10 35 85 90 55 Right 10 25 65 90 48 Regarding functional loss, the Veteran reported that he cannot understand when his wife is calling him and he runs the TV very loudly. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and a Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded a VA audio examination in March 2021. An audiogram showed the Veteran's Maryland CNC Word List speech recognition score was 90 percent in the left ear and 94 percent in the right ear and his pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Left 20 50 100 105 69 Right 20 40 65 100 56 Regarding functional loss, the Veteran reported his hearing is getting worse and he has trouble understanding what others are saying. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and a Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statements regarding having difficulty hearing. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for mild patellar enthesopathy, right knee (claimed as right knee condition) In July 2021 a rating decision issued by the DROC-DC stated that the right knee enthesopathy disability increase to 10 percent disabling was "... considered as a full grant of the benefit sought on appeal ..." This is incorrect. VA is required to consider entitlement to all available ratings. See A.B. v. Brown, 6 Vet. App. 35 (1993). On remand corrective notice should be accomplished by a proper readjudication of the claim and issuance of a SSOC with proper notice as that issue remained on appeal. The matter is REMANDED for the following action: 1. Readjudicate the claim and issue corrective notice about the status of the appeal. If the claim is not granted in full, issue a supplemental statement of the case to the Veteran and his representative for the increased rating for the right knee enthesopathy. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.