Citation Nr: 21069366 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-28 149 DATE: November 18, 2021 ORDER For the increased rating period from January 18, 2017, an increased disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for migraine headaches, to include as secondary to service-connected PTSD, obstructive sleep apnea, cervical spine strain, and/or tinnitus, is remanded. Entitlement to a compensable initial disability rating for left ear hearing loss is remanded. Whether new and material evidence has been received to reopen service connection for right ear hearing loss, and if so, whether service connection is warranted, is remanded. FINDING OF FACT From January 18, 2017, the severity, frequency, and duration of the symptoms of the service connected PTSD did not manifest as total occupational and social impairment. CONCLUSION OF LAW From January 18, 2017, the criteria for an increased disability rating in excess of 70 percent for service connected PTSD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from February 2001 to February 2004, and from June 2004 to March 2011. This matter came before the Board of Veterans' Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. Since the issuance of the August 2019 Statement of the Case (SOC) addressing the issue of an increased disability rating for PTSD, additional VA medical evidence has been received by the Board; however, as this evidence is merely cumulative and redundant of other evidence already of record, a waiver of initial Agency of Original Jurisdiction (AOJ) consideration is not necessary at this time. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision remands the hearing loss and migraine issues on appeal for additional development, no further discussion of the duties to notify and assist is necessary as to those issues. Regarding the PTSD rating issue, concerning the duty to notify, the record shows that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and obtained an adequate VA mental health examination in June 2017. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. An Increased Disability Rating for PTSD in Excess of 70 Percent is Denied Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 9411, a 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." 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." It was 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." See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). At the outset, the Board notes that in a July 2017 rating decision the RO granted an increased disability rating of 70 percent for the service-connected PTSD, from 30 percent, effective January 18, 2017, the date of receipt of intent to file an increased rating claim. Review of the record does not reflect that the Veteran first became entitled to the increased 70 percent disability rating during the one-year lookback period from January 18, 2016 to January 18, 2017. See 38 C.F.R. § 3.400; Hart, 21 Vet. App. 505. As such, the Board need only consider whether an increased disability rating in excess of 70 percent was warranted during the rating period from January 18, 2017. During the course of this appeal the Veteran and representative have not argued that the Veteran is entitled to a 100 percent total disability rating for the service-connected PTSD. To the contrary, in a May 2018 Notice of Disagreement (NOD), the Veteran and representative argued that the PTSD should be rated at 70 percent, and that a separate compensable disability rating should have been assigned for the sleep disability symptoms. In a January 2021 rating decision, the RO granted service-connection for the sleep disorder of obstructive sleep apnea, as secondary to the service-connected PTSD. To date, neither the Veteran nor the representative has disagreed with the initial rating or effective date assigned for the obstructive sleep apnea. As such, the Board will not further address the question of a separate compensable disability rating for a sleep disorder secondary to the service-connected PTSD. Finally, having reviewed the evidence of record, lay and medical, the Board finds that, for the increased rating period from January 18, 2017, the severity, frequency, and duration of the symptoms of the service connected PTSD did not manifest as total occupational and social impairment. The Veteran received a VA PTSD examination in May 2017. Per the examination report, the Veteran graduated from college in 2012 and had been working in Information Technology (IT) for the previous three years. The Board notes that the lay and medical evidence received subsequent to this report does not indicate that the Veteran has since become unemployed. Such evidence shows that the Veteran does not have total occupational impairment, which is necessary for a 100 percent disability rating under the General Rating Formula for Mental Disorders. As to the Veteran's social impairment, at the time of the May 2017 VA PTSD examination, the Veteran advanced having an okay relationship with his wife and a good relationship with his four children and extended family. Review of the available evidence of record since the May 2017 VA PTSD examination does not support that the Veteran's social impairment has worsened beyond that demonstrated at the time of the May 2017 VA examination. Such evidence shows that the Veteran does not have total social impairment, which is necessary for a 100 percent total disability rating under the General Rating Formula for Mental Disorders. Finally, the Board notes that, at the time of the May 2017 VA PTSD examination, the Veteran did not display any of the symptoms commonly associated with the 100 percent total disability rating criteria, or symptoms like or similar to those contemplated by a 100 percent disability rating, to suggest total social and occupational impairment. At that time the VA examiner explicitly opined that the PTSD symptoms resulted in deficiencies in most areas, and did not result in total occupational and social impairment. In sum, review of the evidence of record reflects that, for the entire increased rating period from January 18, 2017, the Veteran was employed in IT and was able to maintain a relationship with various family members, to include his wife and children. As such, it cannot be said that, during the increased rating period from January 18, 2017, the Veteran's occupational and/or social impairment were both total, as required for a 100 percent total disability rating under Diagnostic Code 9411. For these reasons, the Board finds that a total 100 percent disability rating is not warranted at any point during the increased rating period from January 18, 2017. 38 C.F.R. § 4.130, Diagnostic Code 9411. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the PTSD rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (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); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). REASONS FOR REMAND 2. Entitlement to Service Connection for Migraine Headaches is Remanded VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). During the course of this appeal, the Veteran has argued that currently diagnosed migraine headaches were secondary to, that is, caused or aggravated by, the service-connected PTSD, obstructive sleep apnea, cervical spine strain, and/or tinnitus. See 38 C.F.R. § 3.310. During service the Veteran was involved in combat that put him in close vicinity to explosions. A January 2011 service treatment record notes that in 2006 in Afghanistan the Veteran was in a Humvee that either ran over or was hit with an explosive. During the course of this appeal, the Veteran received a VA headache examination in November 2017, and an addendum opinion was obtained in September 2019. In multiple briefs the Veteran's representative has challenged the adequacy of the examination and the resulting opinions. Without addressing the adequacy of the November 2017 examination itself, the Board agrees that secondary and direct service connection opinions were not complete, particularly in regard to the question of whether the diagnosed migraine headaches were aggravated by one or more service connected disabilities. See 38 C.F.R. § 3.310. Considering the record as a whole, along with the additional evidence and argument submitted by the Veteran, the Board finds remand for a new VA migraine headache examination to be warranted. 3. A Compensable Initial Disability Rating for Left Ear Hearing Loss is Remanded 4. New and Material Evidence to Reopen Service Connection for Right Ear Hearing Loss is Remanded A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). In a December 2017 rating decision, the RO reopened and granted service connection for left ear hearing loss, as audiometric testing now showed left ear hearing loss for VA rating purposes. Further, the RO again denied service connection for right ear hearing loss, as the evidence of record did not show right ear hearing loss to a level contemplated as a disability for VA rating purposes. See 38 C.F.R. § 3.385. Review of the record reflects that the Veteran underwent a VA audiogram in September 2017. Per the VA treatment records, a copy of the audiogram is available in Vista Imaging. The Veteran's representative argues that there may be additional such audiograms found in Vista Imaging. It is the representative's contention that the Veteran underwent another VA audiogram for hearing aid purposes in 2018. Additionally, the representative has argued that the Veteran's hearing loss, in particular in the right ear, has worsened since the December 2017 VA audiometric examination. For the above reasons, the Board finds remand to request any VA audiometric records from Vista Imaging and to schedule a new VA audiometric examination to be warranted. The aforementioned matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning migraine headaches and/or hearing loss. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Contact the appropriate VA medical center records custodian to obtain any audiometric examination records found within the Vista Imaging system from 2017 to the present. 3. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's migraine headaches and hearing loss, not already of record, for the period from August 2021. 4. Schedule the appropriate VA examinations. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner(s) should provide the following opinions: Opinions on Direct and Secondary Service Connection for Migraine Headaches A) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's currently diagnosed migraine headaches were incurred in service, to include as due to blast/explosive exposure during combat? In rendering this opinion, the VA examiner should address the service treatment record indicating that the Veteran was in a Humvee that either ran over or was hit with an explosive on or about 2006 while in Afghanistan. B) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's currently diagnosed migraine headaches were caused by a service-connected disability, to include PTSD, obstructive sleep apnea, cervical spine strain, and/or tinnitus? C) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's currently diagnosed migraine headaches were aggravated (that is, worsened in severity) by a service-connected disability, to include PTSD, obstructive sleep apnea, cervical spine strain, and/or tinnitus. Measure Bilateral Hearing Loss By audiometric testing, the VA examiner should measure the current level of severity of the bilateral hearing loss. The VA examiner should report the extent of the bilateral hearing loss in accordance with VA rating criteria, to include performance of Puretone audiometry and Maryland CNC speech discrimination testing. 5. Then, readjudicate the remanded issues. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.