Citation Nr: 21068944 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-05 427 DATE: November 17, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, for post-traumatic stress disorder (PTSD) is granted for the entire period on appeal. Entitlement to an initial compensable rating prior to March 14, 2016, and in excess of 10 percent thereafter for bilateral hearing loss is denied. Entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer is denied. REMANDED Entitlement to service connection for tremors is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 14, 2016 is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas. 2. Prior to March 14, 2016, the Veteran's bilateral hearing loss was characterized by no more than Level I hearing impairment in the right ear and no more than Level II hearing impairment in the left ear; after March 14, 2016, the Veteran's bilateral hearing loss was characterized by no more than Level V hearing impairment in the right ear and no more than Level IV hearing impairment in the left ear. 3. The Veteran's residuals of prostate cancer were characterized by a daytime voiding interval between one and two hours. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an initial compensable rating prior to March 14, 2016 and in excess of 10 percent thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to March 1972. He received the National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal, and Vietnam Campaign Medal with 60 device. The Veteran died in February 2020 and the Appellant is his surviving spouse. In February 2021, the Appellant submitted her request to substitute as a claimant. In March 2021, the Agency of Original Jurisdiction (AOJ) granted the Appellant's substitution request. The claims for increased ratings for PTSD, prostate cancer residuals, and hearing loss were previously before the Board in January 2018 and were remanded for outstanding treatment records. The claim for service connection for tremors was also before the Board in January 2018 and was remanded for an examination and nexus opinion. The TDIU claim was previously before the Board in March 2019 and January 2020 and was remanded both times for adjudication of the pending increased rating claims. Increased Rating for PTSD The Veteran's PTSD was rated as 30 percent disabling prior to March 14, 2016, and 50 percent disabling thereafter, under the provisions of 38 C.F.R. § 4.114, Diagnostic Code (DC) 9411. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. 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). 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. 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 worklike setting); inability to establish and maintain effective relationships. 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; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran underwent a VA examination in October 2011. At this time, he indicated that he stopped working in June 2010 because of his tremors and depression. He further noted that he had issues with emotional attachment to others and irritability that impacted his ability to maintain relationships. He further endorsed mild symptoms of nightmares, hypervigilance, isolation, anhedonia, low energy, sleep impairment, impaired attention, and concentration, change in appetite, and feelings of hopelessness or worthlessness. He did not endorse any suicidal ideation at the time of the examination but reported that he sold his guns the year before because of suicidality. The Veteran exhibited a normal appearance, thought content, thought process, memory, attention, concentration, insight, and judgment. The Veteran underwent an examination in May 2016. At this time, the Veteran reported no significant problems in his personal relationships and some interest in recreational activities. His observed and reported symptoms included some sleep impairment, exaggerated startle response, irritability, impaired concentration, feelings of guilt, depressed mood, loss of interest in activities, lack of motivation, low energy, social isolation, anhedonia, anxiety, and difficulty adapting to stressful circumstances. The examiner noted that the Veteran continued to struggle with excessive alcohol consumption. At the examination, he exhibited normal speech, attention, concentration, and thought process. VA and private treatment records show that the Veteran's most frequent and severe symptoms included depressed mood, anxiety, sleep impairment and nightmares, impaired motivation and anhedonia, low sense of self-worth, angry outbursts, and irritability. The Veteran also endorsed suicidal ideation and was regularly counseled about his excessive alcohol use. During this time, he routinely exhibited an appropriate appearance, a pleasant and cooperative manner, normal thought process, normal thought content, normal speech, normal judgment, and normal insight. The Veteran discussed having a difficult relationship with his former spouse that eventually led to him obtaining a divorce. He acknowledged being emotionally abusive towards his former spouse and having difficulty with frustration and angry outbursts when dealing with his mother. After resolving all doubt in favor of the Veteran, the Board finds that the Veteran's PTSD more closely approximated a 70 percent rating for the entire appeal period. As noted above. to warrant a higher rating, the evidence must show total occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 116-17. The evidence does not show that the Veteran experienced symptoms of the severity contemplated by the 100 percent rating. While the Veteran reported suicidal ideation, he did not exhibit 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 ability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or symptoms of similar severity. Instead, the evidence shows that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as mood and family, due to symptoms such as depressed mood, anxiety, irritability, angry outbursts, and suicidal ideation. The severity of these symptoms most closely approximates the disability picture contemplated by a 70 percent rating. Accordingly, a 70 percent rating, and no higher, for PTSD is warranted for the entire appeal period. Increased Rating for Hearing Loss The Veteran's hearing loss is currently assigned a noncompensable rating before March 14, 2016 and 10 percent thereafter. As staged ratings for hearing loss have already been assigned, the Board will discuss the propriety of the ratings assigned at each stage. See Fenderson, 12 Vet. App. 119. Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations. 38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss are based on the organic impairment of hearing acuity as measured by controlled speech discrimination tests, in conjunction with the average hearing threshold as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. Evaluations range from noncompensable to 100 percent. The Rating Schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. The horizontal rows in Table VI (found in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row that corresponds with the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIa). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. The percentage evaluation is found in Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row that corresponds with the numeric designation for the ear having the better hearing acuity with the vertical column corresponding with the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). A March 2013 VA examination shows that the Veteran denied that his hearing loss had any impact on the ordinary conditions of daily life. The Veteran's puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 45 65 60 LEFT 15 55 55 65 The puretone threshold average was 48 in the right ear and 48 in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 96 in both the right and left ears. Under Table VI, the scores for both ears correlate to Roman numeral I. A noncompensable rating is warranted under Diagnostic Code (DC) 6100 when these auditory acuity levels are entered into Table VII. A May 2016 VA examination shows that the Veteran's puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 55 60 65 LEFT 20 60 60 70 The puretone threshold average was 50 in the right ear and 53 in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 74 in the right ear and 78 in the left ear. Under Table VI, the scores for the right ear correlate to a Roman numeral V and the scores for the left ear correlate to a Roman numeral IV. When the auditory acuity levels from Table VI are entered into Table VII, a 10 percent rating is warranted. At the May 2016 VA examination the Veteran described the functional impact of his hearing loss as an inability to hear and increased aggravation. This functional impairment and related difficulties are factors contemplated by the regulations and schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017); Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, the evidence preponderates against a finding of entitlement to compensable rating prior to March 14, 2016 and a rating in excess of 10 percent thereafter. Increased Rating for Residuals of Prostate Cancer The Veteran's residuals of prostate cancer are currently rated as 20 percent disabling under 38 C.F.R. § 4.115b, DC 7528. This diagnostic code provides for a rating based on the predominant characteristics of the residuals. The Veteran's current rating is based on urinary frequency under 38 C.F.R. § 4.115a. The criteria for urinary frequency assign a 20 percent rating when there is a daytime voiding interval between one and two hours or there is awakening to void three to four times per night. A daytime voiding interval of less than one hour or awakening to void five times per night warrants a 40 percent rating. Turning to the evidence, the Veteran underwent a VA examination in June 2012. The Veteran reported a daytime voiding interval between one and two hours and nighttime awakening to void two times. The Veteran denied urine leakage or symptoms of obstructed voiding. There were no noted recurrent symptomatic urinary tract infections, kidney infections or retrograde ejaculation. In May 2016, the Veteran underwent a second VA examination. At this time, the Veteran reported a daytime voiding interval between two and three hours and nighttime awakening to void two times. The Veteran denied urine leakage or symptoms of obstructed voiding. The Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent for residuals of prostate cancer. To warrant a higher rating, the evidence must show a daytime voiding interval of less than one hour or awakening to void five times per night. The evidence does not show this but instead shows that the Veteran's disability was predominantly manifested by a daytime voiding interval between one and two hours, at worst. This level of impairment most closely approximates the disability picture contemplated by the 20 percent rating. Accordingly, a rating in excess of 20 percent for residuals of prostate cancer is not warranted. REASONS FOR REMAND Service Connection for Tremors The Veteran underwent a VA examination in September 2019. See September 2019 VA Examination, pp. 1-11. A VA clinician opined that the Veteran's tremors were not aggravated by his service-connected PTSD because his alcohol use and alcohol withdrawal would only cause a short-term withdrawal tremor and not the long-term tremors endorsed by the Veteran. See September 2019 VA Examination, p. 3; September 2019 VA Examination, p. 3. The VA examiner also stated that after reviewing medical records and physical exam, it is at least likely as not that the tremors were aggravated by alcohol abuse. The examiner explained that alcohol abuse can cause damage to the cerebellum of the brain, including loss of Purkinje cells. However, the Board finds the aggravation opinion to be unclear. Additionally, the VA clinician specifically noted that the Veteran reported an onset of symptoms in-service but did not provide an opinion on direct service connection. Therefore, a remand is necessary to obtain a new VA opinion. TDIU prior to March 14, 2016. The issue of entitlement to a TDIU prior to March 14, 2016 is inextricably intertwined with the remanded issue of entitlement to service connection for tremors. Additionally, as the Veteran did not meet the schedular criteria for a TDIU during some periods prior to March 14, 2016, the Board finds that a referral to the Director of Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: 1. Obtain a VA opinion on the nature and etiology of the Veteran's tremors. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner should address the following. (a) Is at least as likely as not (a 50 percent probability or greater) that the Veteran's tremors are related to his active-duty service? In providing this opinion, the examiner must consider the Veteran's reports of experiencing hand tremors since his service in Vietnam. See June 2010 Statement in Support of Claim, p. 1. (b) Is at least as likely as not (50 percent probability) that the Veteran's tremors were aggravated by the service-connected PTSD, to include the use of alcohol due to service-connected PTSD? (Continued on the next page) The examiner is advised that the Veteran was competent to report his history and symptoms, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 2. Refer the issue of entitlement to a TDIU to the Director of the Compensation Service for extraschedular consideration. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, 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.