Citation Nr: A21018367 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 200601-90515 DATE: November 17, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for unspecified schizophrenia spectrum and other psychotic disorder with anxious distress is denied. REMANDED Entitlement to service connection for right ear conductive hearing loss is remanded. Entitlement to service connection for left ear conductive hearing loss, on an aggravation basis, is remanded. FINDING OF FACT The Veteran's unspecified schizophrenia spectrum and other psychotic disorder with anxious distress did not result in total social and industrial impairment. CONCLUSION OF LAW The criteria for a 100 percent disability evaluation for unspecified schizophrenia spectrum and other psychotic disorder with anxious distress have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.126, 4.130 (Diagnostic Code 9204). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to January 1975. This decision has been written consistent with the new Appeals Modernization Act (AMA) framework for Veterans dissatisfied with VA's decision on their claim to seek review. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2019 rating decision that granted the Veteran's petition to readjudicate his claim for service connection for conductive hearing loss but denied the claim on the merits, and a May 2020 rating decision that denied entitlement to a rating greater than 70 percent for unspecified schizophrenia spectrum and other psychotic disorder with anxious distress. In a June 2020 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), the Veteran timely appealed the December 2019 and May 2020 rating decisions and requested a Board hearing. In February 2021, the Veteran testified via videoconference hearing before the undersigned. A copy of the transcript has been associated with the Veteran's claim file. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Entitlement to an increased rating for unspecified schizophrenia Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is question as to which of two evaluations 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's unspecified schizophrenia spectrum and other psychotic disorder with anxious distress is rated under 38 C.F.R. § 4.130, Diagnostic Code 9204, and is rated under the General Rating Formula for Mental Disorders. The Veteran's service-connected mental disorder is rated 70 percent disabling. Under the General Rating Formula for Mental Disorders, a 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A maximum 100 percent disability rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. Under the General Rating 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, both listed and unlisted, caused the level of impairment required for a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran 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. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). Turning to the relevant evidence of record, in February 2020 the Veteran underwent VA examination. The examiner noted the Veteran's diagnosed unspecified schizophrenia spectrum and other psychotic disorder, with anxious distress. The examiner also noted occupational and social impairment with deficiencies in most areas. The Veteran had not maintained gainful employment for many years. He is currently enrolled at Purdue University-Fort Wayne, where he maintained that his classwork is "stressful." His current symptoms included depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including in a work or a worklike setting. The Veteran stated that he was "doing good until this past week" and attributed his anxiety to flunking a chemistry test. He denied suicidal or homicidal ideation and episodes of violence and risk taking behaviors/impulsivity. Regarding appearance, the examiner commented that the Veteran had good hygiene, grooming was fair and his hair and bear were somewhat unkept but clean. The Veteran's attitude was cooperative; behavior was appropriate; his thought process was coherent and logical; and there was no evidence of delusional thinking. The Veteran could manage his financial affairs. At the February 2021 Board hearing, the Veteran testified that he has never been violent. He stated that at times it can take up to a week to shower, but he usually brushes his teeth on a daily basis. The Veteran indicated that he does laundry every few weeks, he makes sure to eat (usually at a restaurant) and that he is well-oriented to the day and the time. He claims that he knows his family members and does not forget his name or age. The Veteran reported getting frustrated talking to VA case and social workers over the past few years and frequently must ask people to repeat themselves, but once he hears what they say he does not have any problems. Upon review of the relevant evidence of record, the Board concludes that the Veteran's disability picture does not more nearly approximate the criteria for a 100 percent rating criteria under DC 9204, 38 C.F.R. § 4.130. The weight of the evidence shows that the Veteran has not had total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name for any period. The February 2020 VA examination report as well as the Veteran's own testimony at the February 2021 Board hearing shows that the Veteran did not exhibit symptomatology of such severity as indicated for a 100 percent rating (i.e. gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name). While the VA examination indicates a history of psychosis (including visual hallucinations), the Veteran denied any disturbances over the last number of years, and he did not exhibit any other symptoms productive of complete social and occupational impairment. Notably, the Veteran indicated that he is able to perform basic living activities such as going out to eat, brushing his teeth, and showering at least once a week. In addition, he stated that he knows his own name, the name of his close relatives, and that he is well oriented to the time and place. Thus, the Veteran did not exhibit any other symptoms productive of complete social and occupational impairment. Vazquez-Claudio, 713 F.3d 112. The Board finds that the degree of severity of the Veteran's psychiatric symptoms and functional impairment is not consistent with a 100 percent rating for unspecified schizophrenia spectrum and other psychotic disorder with anxious distress. For these reasons, the Board finds that a preponderance of the evidence is against a 100 percent schedular rating for unspecified schizophrenia spectrum and other psychotic disorder with anxious distress. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND In its December 2019 rating decision, the RO found that the Veteran has a current hearing loss disability. 38 C.F.R. § 3.104(c). The Board is thus bound by the favorable findings identified by the RO. At the February 2021 Board hearing testimony, the Veteran stated that his current hearing loss began in active service as he was exposed to loud noise while working around the aircraft and on the flight line. At enlistment, the Veteran's was noted to have a history of left ear surgeries as a child, with normal hearing in his right ear. Service treatment records (STRs) dated in April 1974 indicate that the Veteran complained of not hearing properly after flight line duty and tympanic membrane was retracted. In addition, purulency in the left ear was documented in a July 1974 STR. The treating physician recommended that the Veteran not be exposed to hazardous noise and that whenever he possible he should "take all precautions to prevent hearing damage," including "wear[ing] ear plugs and mufflers when on the flight line." STRs dated in September 1974 indicate that the Veteran's hearing loss issues have worsened in severity. The military physician stated that the Veteran can no longer work on the flight line, commenting that the Veteran "should be retrained in another [Air Force unit] which does not entail exposure to hazardous noise environment." Notably, the Veteran's ear condition was noted to be "aggravated by environment." The Veteran's separation examination showed hearing acuity was within normal limits. In March 1975, shortly after discharge, the Veteran underwent VA examination. The examiner found that there were no secretions present in either ear and that speech reception in both ears was within normal limits. Likewise, the November 1986 VA examination report noted hearing loss but did not find a relationship between his hearing loss and active service. However, the Board finds that the March 1975 and November 1986 VA examinations are inadequate as they appear to have based their conclusions largely on the fact that the Veteran had normal hearing at separation. These opinions are flawed however, as normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss and are thus afforded little probative weight. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Therefore, the Board finds the March 1975 and November 1986 examination opinions to be inadequate as to his right and left ear conductive hearing loss disabilities. As remand for a new opinion is warranted because this this is a pre-decisional duty to assist error and the Board is required to remand AMA claims for correction of such errors. 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an audiologist to determine the nature and etiology of any conductive hearing loss. Following review of the claims file, the examiner should provide an opinion as to the following: (a) whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the currently diagnosed right ear conductive hearing loss had its onset in service or is otherwise related to the Veteran's military service, to include the claimed in-service noise exposure. (b) whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the currently diagnosed left ear conductive hearing loss increased in severity during service. If so, the examiner should then provide an opinion as to whether it is clear and unmistakable that the increase in severity was due to the natural progress of the disease. When rendering the requested opinions, the examiner must consider the Veteran's STRs documenting worsening hearing in-service as well as his lay statements, to include the February 2021 Board hearing testimony, with respect to the symptoms experienced during service. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.