Citation Nr: 21070455 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-10 076 DATE: November 24, 2021 ORDER Entitlement to an initial rating of 70 percent but no higher prior to June 14, 2021 for posttraumatic stress disorder is granted. Entitlement to a rating in excess of 70 percent beginning June 14, 2021 and thereafter for posttraumatic stress disorder is denied. Entitlement to an initial compensable rating for bilateral hearing loss and a rating in excess of 20 percent beginning June 14, 2021 and thereafter is denied. Entitlement to total disability due to individual unemployability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has total social and occupational impairment due to his PTSD. 2. For the period prior to June 14, 2021 the Veteran's bilateral hearing loss did not warrant a compensable rating. 3. For the period beginning June 14, 2021 and thereafter the Veteran's bilateral hearing loss did not warrant a rating in excess of 20 percent. 4. The preponderance of the evidence establishes that the Veteran's service-connected disabilities do not preclude him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent but no higher prior to June 14, 2021 for posttraumatic stress disorder are 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. The criteria for entitlement to a rating in excess of 70 percent beginning June 14, 2021 for posttraumatic stress disorder 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 for bilateral hearing loss and a rating in excess of 20 percent beginning June 14, 2021 and thereafter 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 6100. 4. The criteria for entitlement to total disability due to individual unemployability are not met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. This case was remanded in March 2021 for further development. Upon review, the Board finds that the remand directives have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles: Posttraumatic Stress Disorder The Veteran is currently service connected for posttraumatic stress disorder (PTSD) with a rating of 50 percent beginning March 24, 2015 through June 14, 2021, and a rating of 70 percent thereafter. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, under the General Rating Formula for Mental Disorder. The criteria for a 70 percent rating are 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 work-like setting); and the inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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 Board notes that the Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Id. Rating Principles: Hearing Loss Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. 38 C.F.R. § 4.85, Tables VI, VII. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone 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 pure tone threshold at 1000 Hertz is 30 or less and the Puretone threshold 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. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 1. Entitlement to an initial rating of 70 percent prior to June 14, 2021 for posttraumatic stress disorder (PTSD). The Veteran is currently service connected for PTSD with a rating of 50 percent prior to June 14, 2021. The Veteran contends that he is entitled to a rating in excess of 50 percent prior to June 14, 2021. At his Board hearing the Veteran testified that he experiences symptoms of frequent anger outbursts, difficulty concentrating, difficulty with hygiene, discomfort in crowded places, nightmares, limited socialization, and obsessive rituals. He also testified that his PTSD had worsened since his last VA examination. A July 2015 VA examination notes that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. The examiner noted that the Veteran's PTSD is disruptive to his marriage because the Veteran tends to rage easily which causes his spouse to gent angry or withdraw from him. The examiner noted that it is usual for him to have restless sleep and during at least one instance, while having a nightmare the Veteran hit his wife. The examiner also noted that in the Veteran's previous marriage the children were afraid of him. The Veteran was afforded another VA examination for PTSD in September 2015. The examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. The examiner noted that while the Veteran's PTSD symptoms would reduce his reliability and productivity in the workforce it would not preclude employment. The Veteran underwent another VA examination in April 2016. The examiner noted occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and or mood. The examiner noted that the Veteran's first marriage ended due to rage and other PTSD symptoms, and the Veteran's current wife reported that the Veteran experiences rage, loss of control and is easily irritated; it was further noted that the Veteran's children are afraid of him. With respect to employment the examiner noted that the Veteran had difficulty with anger on the job and was often in conflict with his colleagues for his explosive and argumentative style of management. The Veteran had disciplinary actions based on his work behavior. The examiner also noted that the Veteran has a great degree of discomfort in crowds, shopping malls and gatherings and has difficulty going to events without his wife. The Veteran's rage was characterized as explosive anger with little or no provocation. Finally, the examiner noted that the Veteran managed to maintain employment with a great deal of struggle due to his PTSD symptoms. Nonetheless, the examiner did not note total occupational and social impairment. October 2019 VA treatment records note that the Veteran reported ongoing symptoms of intrusive thoughts leading to significant anxiety and depression. The Veteran denied any suicidal or homicidal ideation but reported that he continues to avoid crowds, is hypervigilant, has graphic flashbacks, poor sleep, nighttime walking, and angers easily. The Veteran reported that he lost his last job due to anger issues. However, despite his symptoms the Veteran also reported staying active by playing golf, doing work around the house, and playing softball. Ultimately for the period prior to June 14, 2021, the record shows that while the Veteran's symptoms waxed and waned, he frequently experienced symptoms of hypervigilance, sleep disturbance and angry outbursts. Further, VA examinations frequently note occupational and social impairment with deficiencies in most areas. Based on this evidence entitlement to a rating of 70 percent is warranted. However, a total rating of 100 percent is not warranted because the record does not substantiate total occupational and social impairment. Specifically, no VA examination or treating physician has opined total occupational and social impairment. Moreover, despite his symptoms the Veteran has been able to engage in team sports such as softball, which indicates he is not totally socially impaired. Based on evidence of occupational and social impairment with deficiencies in most areas but no evidence of total occupational and total social impairment, entitlement to an initial rating of 70 percent but no higher is granted for the period prior to June 14, 2021. 2. Entitlement to a rating in excess of 70 percent beginning June 14, 2021 and thereafter for PTSD. For the period beginning June 14, 2021 and thereafter, the record does not substantiate total occupational and social impairment, therefore entitlement to a rating of 100 percent is not warranted. The Veteran was afforded a VA examination in June 2021. The examiner noted occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and or mood. The examiner noted ongoing symptoms of depression, anxiety, suspiciousness, panic attacks weekly or less often, near continuous panic or depression, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances and impaired impulse control. With respect to social history the Veteran reported living with his spouse of 25 years. He reported a limited social life including his wife, his counselor and the Veteran's group he attends. He reported that he did not go out or have any friends and keeps to himself. However, he reported that his current relationships with family are adequate and he keeps in touch with his siblings. In order to warrant a 100 percent rating there must be evidence of both total occupational and total social impairment. The record does not indicate that the Veteran is totally socially impaired. Instead, the record shows that the Veteran has been able to maintain his marriage and has adequate relationships with his children which supports a finding that the Veteran does not have total social impairment. Entitlement to a rating in excess of 70 percent beginning June 14, 2021 and thereafter is denied. 3. Entitlement to an initial compensable rating for bilateral hearing loss and a rating in excess of 20 percent beginning June 14, 2021 and thereafter. Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran was afforded a VA examination for his hearing loss is September 2015. Audiometric findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 45 70 70 LEFT 20 15 35 70 75 The average hearing loss was 50 decibels in the right ear and 49 decibels in the left. Speech discrimination scores were 88 percent in the right ear and 82 percent in the left. This results in a numeric designation of II in the right ear and III in the left ear pursuant to table VII of 38 C.F.R. § 4.85. Based on these numeric designations, the Veteran is entitled a noncompensable rating for his bilateral hearing loss for the period prior to June 14, 2021. The Board notes that the Veteran had a private audiological evaluation in December 2015, however the record does not provide a table with clear audiological results at 500 hz, 1000 hz, 2000 hz, 3000 hz and 4000 hz nor does it provide the average hearing loss decibels thus this information cannot be used to rate the Veteran's hearing loss for VA purposes. Based on the evidence of record, entitlement to a compensable rating prior to June 14, 2021 is denied. Entitlement to a rating in excess of 20 percent beginning June 14, 2021 and thereafter. The Veteran was afforded a VA examination for his hearing loss in June 2021. Audiological results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 70 75 80 95 50 45 75 85 90 The Veteran's average hearing loss was 66.25 decibels in the right ear and 73.75 in the left ear. Speech discrimination scores were 82 percent in the right ear and 72 percent in the left ear. This results in numeric designations of IV in the right ear and VI in the left ear which results in a rating of 20 percent for bilateral hearing loss under 38 C.F.R. § 4.85. The record contains no additional hearing exams during the period at issue. Based on the evidence of record entitlement to a rating in excess of 20 percent for bilateral hearing loss beginning June 14, 2021 and thereafter is denied. TDIU Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disabilities to bring the combination to 70 percent or more. For the purposes of one 60 percent disability or one 40 percent disability in combination, the following will be considered as one disability (1) Disabilities of one or both upper extremities, or of one or both lower extremities including the bilateral factor, if applicable (2) disabilities resulting from common etiology or a single accident (3) disabilities affecting a single body system (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 4. Entitlement to total disability due to individual unemployability. The Veteran is service connected for posttraumatic stress disorder, prostate cancer, bilateral haring loss, tinnitus, and erectile dysfunction. Based on the Veteran's disability rating he meets schedular criteria for TDIU for the entire period on appeal. Vocationally, the Veteran completed 4 years of college and was last employed full time in September 2014. The Veteran also reports working part time approximately 20 hours per week through April 2021. The Veteran contends that he is unable to maintain employment as a result of his PTSD symptoms. At his Board hearing he testified that due to his PTSD he experiences outbursts of anger, has difficulty getting along with others resulting in him being terminated from his employment. The Veteran also reports that his hearing loss impacts his ability to work. Upon review, the evidence shows that as a result of his PTSD the Veteran has difficulty interacting with others and that as a result of his hearing loss the Veteran may have some limitations hearing and communicating with others. The Veteran has also reported some difficulty with memory and concentration related to his PTSD. However, the record does not establish that any of the Veteran's service-connected disabilities result in physical limitations. Based on the evidence of record the Veteran would be able to perform work that is repetitive in nature, involves simple instructions and does not require regular interaction with people. The preponderance of the evidence indicates that the Veteran's service-connected disabilities individually or in combination do not prevent the Veteran from being able to engage in substantially gainful employment. Based on the foregoing, the Veteran's service-connected disabilities do not preclude him from obtaining or maintaining a substantially gainful occupation consistent with his education, experience, and training. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, it is not applicable. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, Associate 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.