Citation Nr: 21070897 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-17 472 DATE: November 26, 2021 ORDER Entitlement to an evaluation of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a compensable evaluation, for the period prior to April 12, 2021, for bilateral hearing loss, is denied. Entitlement to an evaluation of 10 percent, and no higher, for the period beginning April 12, 2021, for bilateral hearing loss, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran's PTSD manifested occupational and social impairment with deficiencies in most areas, including symptoms of suicidal ideation, homicidal ideation, and impaired impulse control, including unprovoked irritability with periods of violence; but did not manifest total occupational and social impairment. 2. Prior to April 12, 2021, the Veteran's bilateral hearing was manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. 3. Beginning April 12, 2021, the Veteran's bilateral hearing loss manifested hearing acuity of no worse than Level V in the right ear and no worse than Level IV in the left ear. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, and no higher, for PTSD have been 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 a compensable rating for bilateral hearing loss, for the period prior to April 12, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for an evaluation of 10 percent, and no higher, for bilateral hearing loss, for the period beginning April 12, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to May 1972. The Veteran testified at a hearing before the undersigned in August 2021. A transcript of the hearing has been associated with the claims file. At the August 2021 hearing, the Veteran's representative waived review by the Agency of Original Jurisdiction (AOJ) of all evidence added to the record since the February 2017 Statement of the Case. As such, the Board finds that it may proceed with adjudication. In January 2020 a private evaluator reported that the Veteran was unemployable due to his PTSD disability. As such, a claim for TDIU has been raised by the record and is part of the increased ratings on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue has been included above. Increased Rating Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an evaluation in excess of 30 percent for PTSD. The Veteran asserts that his PTSD is more severe than currently evaluated. The Veteran's PTSD is currently evaluated under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating higher than 30 percent. The Board concludes that the Veteran's symptoms and level of impairment more closely approximate the symptoms associated with a 70 percent rating. However, they do not cause the level of impairment required for a disability rating of 100 percent. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 38 C.F.R. § 4.130. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. 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; or memory loss for names of close relatives, own occupation or own name. Id. In May 2014 the Veteran's mood was normal. He was alert and oriented times three. There was no confusion, no delusions, and no hallucinations. On VA examination in June 2015, the examiner noted that the Veteran was diagnosed with PTSD and indicated that he had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran did not have post-military/current legal issues, problems with violence. He started drinking daily after the military to sleep. In the diagnostic criteria the examiner reported that the Veteran had recurrent, involuntary, and intrusive distressing memories of the traumatic event; recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event; dissociative reactions in which the Veteran felt or acted as if the traumatic event were recurring; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event; avoidance of or efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic events; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent negative emotional state; marked diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects; hypervigilance; exaggerated startle response; and sleep disturbance. The examiner reported that the Veteran had symptoms of anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, and impaired impulse control, such as unprovoked irritability with periods of violence. He was very guarded and hypervigilant. He was socially isolated, which appeared to be a means to control his anger and his threats of violence toward others. In a statement dated in June 2016 the Veteran reported that the examiner did not ask enough questions regarding his function in public and private. The examiner did not delve into his social relationships or issues that have risen from his temper. The Veteran reported that he never slept more than 2 to 3 hours at a time, that he was awakened due to dreams and nightmares. He did not continue to sleep with his first wife because he hit her a couple times when she tried to wake him. His current wife experienced the same as well as him choking her on one occasion. He reported waking up sweating and worrying. His temper has cost him friends and opportunities. He tended to stay away from people and does not maintain many relationships with friends or new meetings so as to not raise anxiety level and potentially lose his temper. He found himself sizing people up in the event of a confrontation and being on the lookout for potential weapons to use in case of an incident. His mood could change very quickly and he "will fight at the drop of a hat." He stated that he had problems at work with his temper and ability to concentrate. He had to write out specific instructions when it came to complicated and stringed multiple tasks. The report of a January 2020 private evaluation noted the Veteran's report of difficulty falling and staying asleep, usually waking after an hour. He sometimes awoke with physical reactions such as sweating or feeling frightened. Other times he has dreams and/or nightmares regarding his time in Vietnam. He had intermittent weekly intrusive and involuntary thoughts regarding his time overseas. He experienced flashbacks. He felt emotionally numb and void of feeling since his return from the military. He has difficulty trusting others, few friends, and some rockiness in personal relationships. He has avoided thinking or talking about his traumas over the years and has not had any type of therapy. He has felt alienated and separate from others. He has a sense of doom and negativity. He lost interest in things that he previously enjoyed including sports and socializing. He had frequent bouts of irritability and outburst of anger with periods of violence. His concentration was impaired, his mind wandered easily, and he becomes defocused. He is hypervigilant and preferred his back to the wall. He kept weapons at home. He exhibited an exaggerated startle response and has struck out at others in the past. Symptoms were identified as difficulty concentrating, generalized anxiety, short-term memory loss, flashbacks/intrusive thoughts, insomnia and other sleep disturbance, overwhelming feelings of anger and sorrow with crying spells, withdrawal, and bouts of moderately severe to severe depression. The Veteran's diagnosis was PTSD. The provider noted that based on the Veteran's education, training, past work experience, and current level of symptoms related to PTSD alone, the Veteran was not a viable rehabilitation candidate or capable of substantial, gainful work activity. The provider indicated that the Veteran was unemployable. The provider also identified a Global Assessment of Functioning (GAF) score of 47. The private evaluator also completed a VA Disability Benefits Questionnaire (DBQ) and characterized the Veteran's occupational and social impairment as total. The evaluator identified symptoms of depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods or violence. In a February 2020 treatment note the Veteran indicated that over the prior month he wished he was dead or wished that he could go to sleep and not wake up. However, he did not have any actual thoughts of killing himself. Mental status examination showed the Veteran to be cooperative, attentive and interested. He was appropriate and alert/attentive. Speech was spontaneous. Mood was euthymic. Affect was congruent. Perceptions were normal. Though content was normal and thought process was goal-directed. He was oriented times three. Language was intact and judgment was fair. There was no report of cognitive impairment/memory impairment/memory difficulties. There were no self-care impairments. In another treatment record dated in February 2020 the Veteran reported sleep disturbance. He had pretty good energy level and stable appetite. He did not have a lot of interactions. He was distracted easily. He had occasional difficulties with short term memory. He did not have a great deal of feelings of worthlessness. Had feelings of hopelessness when he thought about a lot of things and there is no way to get away. He sometimes had feelings of excess guilt. He denied suicidal ideation and homicidal ideation. However, he had a history of being in fights. The Veteran was well-developed and dressed in casual clothing. He was alert and oriented to person, place and time. He was pleasant and cooperative. He had good eye contact and his speech had normal rate, rhythm and volume. His affect was mildly constricted with some appropriate smiling and tearfulness as well when he was discussing some Vietnam related losses. His mood was mildly dysphoric and mildly anxious. Thought form and associations were goal directed. Delusions were not present. There did not appear to be a response to internal stimuli. Thought content was abstract. Psychomotor was within normal limits. Attention and concentration were grossly intact but not formally tested. Memory was grossly intact but not formally tested. He denied suicidal ideation and homicidal ideation. Judgment and insight were fair. In March 2020 it was reported that the Veteran had good grooming, he was pleasant and cooperative, and had appropriate affect. On VA examination in April 2021, the diagnosis of PTSD was noted. The Veteran was living in a house, with wife. The Veteran reported he gets along with family, friends, neighbors, co-workers, bosses, and wife. Veteran was not employed. However, he was working part-time as chairperson of the township planning commission, as well as attended church activities and Knights of Columbus activities. He went to bed around 12 or 1 and sleeping was stated to be few hours. Veteran reported no mental health treatment and declined the same. In recent history, temper control difficulties were denied. He avoided bars and bar fights. The Veteran denied suicidal and homicidal ideation. The examiner identified symptom of chronic sleep impairment. The Veteran's emotional reactions were friendly, expressive, and responsive. He was cooperative, open, honest, and fully answered all questions. The Veteran was oriented to time and place; appearance and hygiene were within normal limits; behavior was appropriate; delusions or hallucinations were absent; no disorientation; no obsessive rituals; no gross impairment in thought processes or communication; speech was logical and relevant; no danger to self or others; able to do all activities of daily living without assistance; memory intact; and there was no evidence of memory dysfunction. The Veteran reported that he has not been fired. In the symptoms, the examiner noted that the Veteran reported that he had trouble controlling his temper. The Veteran was noted to not be suicidal but to be homicidal if he gets into a situation. At the Board hearing, the Veteran reported having a quick temper, periods of violence and that he had suicidal ideation, but did not entertain the thoughts. He did not continue with treatment with VA because discussing the incidents in service gave him too many flashbacks and made him irate. Entitlement to an evaluation of 70 percent disabling, and no higher, is warranted for the Veteran's PTSD. The Board finds the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The preponderance of the evidence indicated that the Veteran had impaired impulse control, including unprovoked irritability with periods of violence. In addition, the Veteran reported suicidal and homicidal ideation. The Veteran had impaired concentration. Furthermore, a private evaluator indicated near-continuous panic or depression affecting the Veteran's ability to function independently and inability to establish and maintain effective relationships. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran denied suicidal ideation in the bulk of records and has reported that he does not entertain the thoughts of suicide and did not have actual thoughts of killing himself. Although the private evaluation provider noted that the Veteran had total occupational and social impairment, the Board notes that the Veteran remained married, got along with family, friends, neighbors, co-workers, bosses, and wife, attended church and community events, and was employed part-time. Therefore, the preponderance of the evidence is against a finding that the Veteran's disability manifested symptoms that more nearly approximated total occupational and social impairment. The the evidence supports entitlement to an evaluation of 70 percent, and no higher, for PTSD. 2. Entitlement to a compensable evaluation for bilateral hearing loss. The Veteran contends that he is entitled to higher evaluations for his hearing loss disability. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86 (a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). The Veteran was afforded a VA examination in June 2015. The Veteran reported that his wife constantly got upset because he was saying "what?" Friends get impatient with him for missing what they say. He has to turn the television up loud and cannot understand the television often. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 30 40 70 70 53 LEFT 25 40 65 75 51 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Applying these results to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in either ear. In a statement dated in June 2016 the Veteran reported that there were problems with the hearing test and that while he could hear some tones, he could not hear as many as the results have shown. He indicated that concern was the use of a man's voice which tended to be easier for him to hear. The voice was perfectly enunciated, slow and deliberate and was in a controlled situation. He stated that he had problems with background noise or if someone has their head turned away. He read lips to assist with understanding. In February 2019 the Veteran underwent a hearing evaluation and was noted to have right ear hearing within normal limits from 0.25 to 1.5 kHz, sloping from mild to moderately-severe sensorineural hearing loss from 2 to 8 kHz. He had left ear hearing within normal limits from 0.25 to 1 kHz, sloping from moderate to moderately-severe sensorineural hearing loss from 1.5 to 8 kHz. When compared to 2012 testing; thresholds in the right ear diminished 15 to 25 dB at 2 and 4 to 8 kHz and thresholds in the left ear diminished 15 to 30 dB at 2 and 6 to 8 kHz. Significant asymmetry (15dB or greater) was noted from 1.5 to 2 kHz, left ear worse. Maryland CMC word list results were 100 percent in the right ear and 96 percent in the left ear. Although the audiometric chart has not been obtained for the February 2019 evaluation, as the data identified, at its worst, will not result in a higher evaluation, remand would only result in additional delay and is not necessary. See Soyini v. Principi, 1 Vet. App. 540, 546 (1991). On the authorized audiological evaluation in February 2020, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 30 45 65 70 53 LEFT 30 60 65 70 56 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Applying these results 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in either ear. On the authorized audiological evaluation in April 2021, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 35 55 75 75 60 LEFT 35 65 70 70 60 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 percent in the left ear. The Veteran was noted to report having a great deal more difficulty hearing in meetings. Even with the hearing aids he felt he was struggling. Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level IV in the left ear. Applying these results to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in either ear. At the hearing before the undersigned, the Veteran reported that he had difficulty with background noise and with higher pitch voices. He indicated that up to the last hearing test, all of the tests were performed by men. Based on the evidence above, entitlement to a compensable evaluation, for the period prior to April 12, 2021, for the Veteran's bilateral hearing loss, is not warranted because the Veteran's audiological testing does not warrant a higher evaluation. Based on the evidence above, entitlement to an evaluation of 10 percent, and no higher, for the period beginning April 12, 2021, for the Veteran's bilateral hearing loss is warranted because the audiological testing warrants a 10 percent evaluation. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reported need to have people repeat themselves, the need to listen to the television at a high volume, the difficulty understanding speech with background noise, the aggravation caused by miscommunications, and the increased difficulty hearing higher-pitched, women's voices. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim for an increased rating prior to April 12, 2021. Furthermore, the evidence warrants and an evaluation of 10 percent, and no higher, for the period beginning April 12, 2021, for bilateral hearing loss, is granted, subject to regulations governing payment of monetary awards. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU is remanded. In January 2020 a private evaluator noted that based on the Veteran's education, training, past work experience, and current level of symptoms related to PTSD alone, he was not a viable rehabilitation candidate or capable of substantial, gainful work activity. The evaluator concluded that the Veteran was unemployable. However, review of the claims file shows that the Veteran has been employed part-time. See, e.g., VA Examination, April 2021. It is unclear whether the Veteran's part-time work is substantial and, to date, the Veteran has not submitted a VA Form 21-8940, Application for TDIU. On remand, he should be asked again to submit the completed form and for any other necessary development of the issue of entitlement to TDIU. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. 2. Thereafter, take all additional appropriate action regarding the claim of entitlement to TDIU. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.