Citation Nr: 21069919 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 13-29 992 DATE: November 22, 2021 ORDER Prior to February 21, 2013, a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression and alcohol abuse is denied. REMANDED The claim for an extraschedular rating for service-connected bilateral hearing loss, history of perforated right tympanic membrane, history of cholesteatoma, history of right serous otitis media, status post multiple surgical procedures, is remanded. FINDING OF FACT Prior to February 21, 2013, the Veteran's PTSD with depression and alcohol abuse is not shown to have caused occupational and social impairment, with deficiencies in most areas, or worse. CONCLUSION OF LAW Prior to February 21, 2013, the criteria for a rating in excess of 50 percent for service-connected PTSD with depression and alcohol abuse have not been met. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to February 1970. In May 2016, the Veteran was afforded a hearing at the RO before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102 (b). In November 2016, the Board denied the claims. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In September 2017, the Court issued an Order vacating the November 2016 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). In January 2018, the Board remanded these claims for additional development. In July 2020, the Board denied the claims. The Veteran appealed to the Court. In May 2021, the Court issued an Order vacating the July 2020 Board decision and remanding the case for compliance with a JMR. Increased Rating 1. Rating in excess of 50 percent for PTSD with depression and alcohol abuse prior to February 21, 2013. The Board's decision in July 2020 remains largely applicable and is largely repeated herein, with additional analysis. Four lay statements were received in September 2010 in support of the Veteran's claim. His sister, S.G., stated that the Veteran had been married four times, and that following his separation from service he became aggressive, untrusting, defensive, and angry. She added that he experienced panic attacks, anxiety, and nightmares. She stated that he was sent home while overseas at a job because of a severe anxiety attack. The Veteran's sister, J.W., stated that the Veteran is always wound up, that he always has to be in control, and that he is afraid of the night. The Veteran's sister, S.S., stated that the Veteran has poor sleep, a bad temper, is very argumentative, and that he prefers to be alone. The Veteran's spouse stated that if he is startled while sleeping, the Veteran will wake up with physical violence. He was sent home from his job while overseas due to flashbacks. He is defensive and confrontational, and has told people that "he can kill them if he wanted to." He has road rage and he has chased after people. With regard to the history of the disability in issue, the Veteran served with the Marines in the Republic of Vietnam. His awards include the Purple Heart. A VA PTSD examination report, dated in October 2004, showed that he was diagnosed with PTSD, moderate, with depression. The Veteran's PTSD with depression and alcohol abuse has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, under the general rating formula for mental disorders, which became effective prior to the Veteran's claim for service connection. Under DC 9411, a 50 percent rating is warranted when a psychiatric disability causes 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. Under DC 9411, a 70 percent rating is warranted where an acquired psychiatric disability causes 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 ideations; obsessional rituals that 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. That portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities was based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) IV prior to a change effective August 4, 2014. 38 C.F.R. § 4.130. The regulation has been changed to reflect the current DSM, the DSM-V. As this appeal was certified to the Board in April 2014, prior to the effective date for this change, DSM-5 is not applicable to this claim. See 70 Fed. Reg. 45,093-94 (Aug. 4, 2014). As such, the use of global assessment of functioning scores is appropriate. Golden v. Shulkin, 29 Vet. App. 221 (2018). The DSM-IV contained a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health - illness. Higher scores correspond to better functioning of the individual. GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). GAF scores ranging from 61 to 70 indicate some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). GAF scores are not dispositive of the level of impairment cause by such illness and is to be considered in light of all of the evidence of record. Brambley v. Principi, 17 Vet. App. 20, 26 (2003). When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Here, the Veteran filed a claim seeking a rating in excess of 50 percent for his PTSD that was received in July 2010. His rating was increased to 70 percent as of February 21, 2013. He has appealed, seeking an earlier effective date for the assignment of the 70 percent rating. The evidence includes reports from the Vet Center, dated between July 2010 and May 2011, which show that the Veteran complained of anxiety, anger, nightmares, audible flashbacks, difficulties with an exchange student who was living in his house, and on one occasion, waking up punching his headboard. In July 2010, he reported averaging two to three drinks a day, with heavy drinking two to four times per month, with a history of one instance of both attempted self-harm, and hostile behavior. He reported an intrusive episode of suicidal ideation the previous week, but he denied plan. He reported that he had friends who he goes out with on a weekly basis. Overall, he was noted to look fatigued, but to be appropriate to content, and to be neat and clean. Speech was noted to be normal, or loud due to hearing loss. He was noted not to have suicidal thoughts, or a prior suicide attempt. In November 2010, he reported starting a new job. VA progress notes show that the Veteran complained of symptoms that included sleep difficulties, irritability, low energy, poor concentration, feelings of guilt and hopelessness, and moderate alcohol intake (ranging from two to six beers or drinks from five to seven nights a week). He said that he did not believe his alcohol intake adversely affected his mood, irritability, or his relationship with his spouse. With regard to alcohol consumption, a May 2011 report shows that he reported that he will go days without drinking, that he feels he does not need alcohol, and that he admits to infrequent overuse of alcohol in a single setting, but that his wife strongly discourages more than mild consumption of alcohol. He reported that his current alcohol intake is down from his previous consumption, and that he used to drink up to a bottle of tequila daily. He was working as contracting engineer during part of this time. See e.g., May 2011 report. In December 2012, he reported that he was planning a ten-day trip. He said that he was in good contact with his family, although he had a limited social circle. Overall, the findings tend to show that he was alert and oriented to person, time, and place. Affect was congruent, reactive, and full, with a notation that he was highly anxious with congruent affect. Speech was regular, without pressure or slurring. Thought process was linear. Thought content was negative for suicidal ideation, homicidal ideation, or audio or visual hallucinations. Cognition was grossly intact. Insight into alcohol consumption and its relationship to depression was poor; he had from "limited to poor" to moderate judgement and insight. He did not evidence psychosis or signs of thought disorder. His PTSD was reasonably well-controlled, and he was again offered augmentation in the form of PTSD groups and one-to-one Vet Center counseling. There was a GAF score of 60, and several GAF scores of 64. With regard to specific findings of particular note, a June 2011 report notes ongoing mild alcohol use. A September 2011 report notes that he had poor insight into his heavy alcohol consumption, and that it is likely the ongoing heavy alcohol use plays a significant role in his irritability. A November 2012 report notes that he reported that he socializes at several clubs, including at a veterans' service organization. A VA PTSD examination report, dated in September 2010, notes the following: The Veteran lives with his wife. He has been married to his current wife for nineteen years and he reported having a close relationship with his wife. He was married four times prior to his current marriage. He has a son from his first marriage, and he reported having a close relationship with his son. He and his wife will go out two to three times per week. He reported drinking alcohol on a nearly daily basis. He said that he typically has two drinks per sitting although approximately one to two times per year, and he will drink to the point of passing out. He denied drug use or any legal difficulties. He holds two Associate Degrees, which he completed in the 1970s, to include an Associate Degree in Management and Manufacturing Technology. He initially reported no social contacts, but with prompting he reported that he and his wife will associate with her friends one to two times per month. He said that they may go out with her friends or play cards with them. He is not currently working. He last worked fifteen months earlier. He was working as an engineering manager at an aerospace company for two and a half years. He reported no formal disciplinary actions on the job, although said he was talked to by the vice president due to other workers feeling "threatened." He reported no threatening behavior and he wondered if his coworkers' complaints were related to "a look I've had." He reported no missed time from work due to mental health difficulties. He is currently receiving medication management through the Portland VA Medical Center. He is seen for counseling at the Vet Center. He reported started counseling and medication two months earlier, and denied any treatment prior to this. He reported current symptoms of PTSD included nightmares three to four times per week, intrusive thoughts, efforts to avoid thinking and talking about Vietnam and efforts to avoid reminders, consistent depression, irritability, being argumentative, hypervigilance, being withdrawn from others, and feeling detached from other people (although does have a close relationship with family). He sleeps three to four hours per night and at times he has fatigue during the next day. The examiner noted that there is no history of hospitalization for psychiatric symptoms. On examination, the Veteran was casually dressed and well-groomed. He generally spoke freely and spontaneously throughout the interview session. The quality of his speech was clear in articulation and easily understandable. He was correctly oriented to person, place, time, and purpose. Thoughts were logical and goal directed. There were no signs of major psychopathology such as hallucinations, delusions, or preoccupations. His affect was within normal limits and his mood generally was neutral. He did not appear to put in his best effort on the test of attention and memory. He exhibited no attention or memory difficulties during the interview. On mental status examination tasks, he showed moderate attention problems and moderate memory difficulties. He was able to interpret a proverb. The Axis I diagnoses were PTSD and depressive disorder NOS (not otherwise specified). The Axis V diagnosis was a GAF score of 55. The examiner stated that the Veteran most likely has the same level of severity as when he was last examined in 2004 (at which time he was assigned a GAF score of 55). The Board finds that a rating in excess of 50 percent is not warranted prior to February 21, 2013. As of that date, the Veteran was shown to have been married for many years, and he reported having a close relationship with his son. He appears to have gone out at least semi-regularly, to have socialized with his wife and friends, and to have been employed for much of the time period in issue. Notwithstanding some evidence of suicidal ideation without history of plan or attempt, and a few indications of hallucinations, there is little or no evidence of suicidal ideations, obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or an inability to establish and maintain effective relationships. His VA progress notes include a score of 60, and multiple GAF scores of 64. This is evidence of mild to moderate symptomatology. The September 2010 VA examiner assigned the Veteran an Axis V diagnosis of a GAF score of 55. This is evidence of no more than moderate symptomatology. To the extent that there is a GAF score of 48 in a June 2010 Vet Center report, this is insufficiently supported by the findings, or other GAF scores of record, to warrant a higher rating. Brambley. In summary, the evidence is insufficient to show that the Veteran has such symptoms, as suicidal ideation with plan or intent, obsessional rituals, defects in speech, near-continuous panic or depression which affect his ability to function independently, appropriately, and effectively; impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or difficulty in adapting to stressful circumstances, nor are there other psychiatric symptoms, to include alcohol abuse, shown to have resulted in such impairment, such that a 70 percent rating is warranted. See 38 C.F.R. § 4.130; Vazquez-Claudio. The Board acknowledges that suicidal ideation is listed among the criteria that was considered to be consistent with a 70 percent rating without qualification of whether a plan or intent was present. However, case law also requires consideration of how the psychiatric symptomatology impacts social and occupational functioning. Of note, both 50 and 70 percent ratings consider social functioning, but a 70 percent rating contemplates the psychiatric symptomatology causing the inability to establish and maintain effective relationships, whereas a 50 percent rating contemplates difficulty establishing and maintaining effective relationships. Here, prior to February 21, 2013, the Veteran was generally working (although was not employed throughout the course of the appeal) and had a stable home life with relationships with both his wife and son, as well as social interaction outside the home. This does not suggest the inability to establish and maintain effective relationships. Accordingly, a rating in excess of 50 percent is not warranted prior to February 21, 2013. In reaching this decision, the Board has considered the May 2021 JMR, which took issue with the Board's conclusion in 2020 that the Veteran was employed throughout "the majority" of the appeal period. The Veteran filed his increased rating claim on July 13, 2010. See Veteran's claim (VA Form 21-4138), received on July 13, 2010. The relevant time period in issue is therefore from July 2009 to February 21, 2013. See 38 C.F.R. § 3.400. This is a period of about 44 months. The relevant history is summarized as follows: By way of history, the evidence dated prior to this time includes a May 2007 private treatment report from Salem Pulmonary Associates, which noted that the Veteran is a contract engineer (mechanical, structural aircraft engineer), who works out of Washington state and travels. See also December 2007 VA examination report; September 2008 VA examination report (reporting that he has been a consultant for at least the last ten years); May 2009 statement in support of claim (VA Form 21-4138). An August 2009 report from VA's vocational rehabilitation and educational service (VR& E) shows that the Veteran was determined not to have met the criteria for a serious employment handicap. VA reports, dated in 2010, show that the Veteran reported that he is unemployed. In July 2010, the Veteran reported that he has been retired for 13 months from his job as an electrical engineer. A September 2010 VA PTSD examination report shows that the Veteran reported that he had been out of work for 15 months (i.e., since about May 2009), prior to that time he had worked as an aerospace manager for 212 years. A treatment record from the Vet Center, dated in November 2010, indicates that the Veteran reported that he was working. A June 2011 report shows that the Veteran reported that he was working. See VA Form 21-4138. In August 2011, the Veteran withdrew his TDIU claim. See Veteran's VA Form 21-4138, received in August 2011. VA progress notes include a September 2011 report which notes that the Veteran's social considerations include "support and benefit from current employment." Reports dated between August and December of 2012 indicate that the Veteran reported that he was working. See e.g., notations that he was working 12 hours a day," and that he worked full time as a contractor. A February 2013 VA PTSD examination report shows that the Veteran reported that he last worked in about December 2012 as project engineer contract job. In summary, the evidence is not entirely clear as to the Veteran's employment status between August 2011 and August 2012. The Board will assume that the Veteran was out of work between July 2009 and November 2010, from August 2011 to August 2012, and from January 2013 to February 2013. This indicates that the Veteran was employed for 16 months out of the 44 months in issue, which is not a "majority" of the time period on appeal. However, an increased rating analysis does not stop upon ascertaining a claimant's employment history; a claimant may be unemployed for a variety of reasons other than the service-connected disability that is the subject of the appeal. The fundamental issue is whether the Veteran is shown to have certain types of symptoms, and whether those symptoms have caused occupational and social impairment in most of the referenced areas. 38 C.F.R. § 4.130; Vazquez-Claudio. When the evidence of the Veteran's employment history is considered together with the medical evidence as to the severity of his psychiatric symptoms, the Board finds that the criteria for a rating in excess of 50 percent are not shown to have been met. In September 2010, the Veteran reported that he had no formal disciplinary actions on the job although said he was talked to by the vice president due to other workers feeling "threatened." He reported no missed time from work due to mental health difficulties. The Veteran has also repeatedly stated that he lost his most recent job (in December 2012) due to economic reasons. See e.g., February 2013 VA PTSD examination report (in which the Veteran reported that that he was "laid off/replaced by someone"); August 2014 VA PTSD VA examination report (reporting that he stopped working after the company lost part of a contract and he was laid-off in order provide a position to a superior); September 2014 employer statement (stating that the Veteran was let go in December 2012 due to being replaced); September 2014 PTSD VA examination report (showing that the Veteran reported that he had not worked since 2012, after he was "laid off due to economics of his employer"). The findings and GAF scores have been discussed. They do not show that his symptoms are productive of occupational and social impairment, with deficiencies in most areas. Accordingly, the criteria for a rating in excess of 50 percent are not shown to have been met. The JMR shows that it was also agreed that the Board had failed to sufficiently discuss the evidence of hallucinations, to include a statement from the Veteran's spouse that she sees the Veteran talking to himself, and his reports that he "can hear someone talking as if they are right next to him." The JMR cited to a July 2011 intake assessment (from the Vet Center noting hallucinations), and a September 2012 neurology note, as documenting hallucinations. In November 2012, the Veteran reported having frequent flashbacks, that the "shadows" had never gone away, and that at times associated with AH (audio hallucinations) of soldiers he knew. A VA PTSD examination report, dated February 21, 2013 (i.e., the effective date for the 70 percent rating), shows that the Veteran reported that he "hears conversations from Vietnam" while sitting at traffic lights, and that he woke up that morning hearing a "gun shot." The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The fundamental issue in this case is whether the Veteran is shown to have certain psychiatric symptoms listed at 38 C.F.R. § 4.130, or similar symptoms, and whether those symptoms have caused occupational and social impairment in most of the referenced areas. 38 C.F.R. § 4.130; Vazquez-Claudio. Thus, the Board's analysis as to hallucinations is not limited to ferreting out each complaint. Rather, the question is whether the Veteran's reported hallucinations were of such severity, type, and frequency that they resulted in the required level of impairment under DC 9411 prior to February 2013. Id. The preponderance of the evidence shows that the Veteran denied audio and visual hallucinations during the time period in issue. The September 2010 VA examiner stated that there were no signs of major psychopathology, to include hallucinations and/or delusions, and that the Veteran most likely had the same level of severity as when he was last examined in 2004 (at which time he was assigned a GAF score of 55). Thereafter, the Veteran reported experiencing hallucinations on a few occasions. However, the evidence primarily shows that he denied audio and visual hallucinations. See e.g., VA progress notes, dated between May 2011 and December 2012. There are related findings that the Veteran and that he did not have hypnogogic hallucinations, or any apparent paranoia or delusions. See VA progress notes, dated in September and December of 2012. At the Veteran's February 2013 examination, the VA examiner did not mark the report to indicate that the Veteran had either hallucinations or dissociative flashback episodes, including those that occur on awakening or when intoxicated, nor did he mark the report to indicate the presence of persistent delusions or hallucinations. In summary, the evidence as to the Veteran's audio and visual hallucinations does not show that they warrant the conclusion that the criteria for a rating in excess of 50 percent have been met under DC 9411. Based on the foregoing, the Board finds that the Veteran's service-connected PTSD with depression and alcohol abuse was not manifested by symptomatology that approximated, or more nearly approximated, the criteria for a rating in excess of 50 percent under DC 9411. The findings do not support a conclusion that his symptoms were productive of a "similar severity, frequency, and duration" as those required for a 70 percent rating. Vazquez-Claudio, 713 F.3d at 116; General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.7. The Board has considered the lay statements and the Veteran's complaints. Lay persons are competent to report on factual matters of which he has first-hand knowledge. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, lay persons are not competent to identify a specific level of disability under the appropriate diagnostic codes. The Board has afforded the medical evidence of record greater probative value. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Accordingly, the preponderance of the evidence is against the Veteran's claim, and it is denied. REASONS FOR REMAND A review of the May 2021 JMR shows the following: It was agreed that in 2013, the Veteran reported receiving treatment for his bilateral hearing loss from a private treatment provider, Dr. D.W. Currently, the record contains records from Dr. D.W. from treatment completed in 2003. However, the record demonstrates that the Veteran has received treatment from Dr. D.W. after 2003. Citing December 2013 VA audiology examination (in which the Veteran reported that he was being followed by Dr. D.W.). However, the record does not demonstrate that VA notified the Veteran of the records from Dr. D.W., or requested that he provide a release for them. Citing 38 C.F.R. § 3.159(e)(2). Therefore, a remand is warranted for VA to request a release for those records and to make reasonable efforts to assist in obtaining them. The matter is REMANDED for the following action: Request any available medical records pertaining to the Veteran from Dr. D.W., dated after 2003. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.