Citation Nr: 21072353 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 20-10 200 DATE: December 2, 2021 ORDER Entitlement to an evaluation in excess of 50 percent, for the period prior to May 16, 2019, and in excess of 70 percent, for the period from May 16, 2019, to prior to April 17, 2020, for posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to a total disability based upon individual unemployability (TDIU), for the period prior to May 16, 2019, is remanded. FINDINGS OF FACT 1. During the period on appeal prior to May 16, 2019, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. During the period on appeal beginning May 16, 2019, to prior to April 17, 2020, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent, for the period prior to May 16, 2019, and in excess of 70 percent, for the period from May 16, 2019, to prior to April 17, 2020, for PTSD, have not 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. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1965 to May 1969. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2021. A transcript of the hearing has been associated with the record. In an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to TDIU, effective May 16, 2019. However, the TDIU claim was raised as part of the increased rating claims for PTSD and hearing loss that have been pending since before May 2019. The claim for TDIU for the period prior to May 16, 2019 remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In the August 2020 rating decision, the AOJ increased the rating for PTSD from 50 percent to 70 percent, effective May 16, 2019, and to 100 percent, effective April 17, 2020. As the evaluations assigned for the periods on appeal prior to May 16, 2019, and prior to April 17, 2020, are not the maximum available, these periods remain on appeal before the Board. However, as the Veteran is in receipt of the maximum 100 percent evaluation for the period beginning April 17, 2020, the issue is no longer on appeal during the period beginning April 17, 2020. A VA medical examination report was associated with the claims file in January 2021, after the most recent Supplemental Statements of the Case is not relevant to the claim decided here. 1. Entitlement to an evaluation in excess of 50 percent, for the period prior to May 16, 2019, and in excess of 70 percent, for the period from May 16, 2019, to prior to April 17, 2020, for PTSD. The Veteran his PTSD is more severe than currently evaluated. 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). 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, 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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The question for the Board is whether the PTSD symptoms caused the level of impairment required for evaluations in excess of 50 percent, for the period prior to May 16, 2019, and in excess of 70 percent, for the period from May 16, 2019, to prior to April 17, 2020. 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. 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. 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. The Board concludes that the Veteran's symptoms of PTSD did not cause the level of impairment required for a disability rating in excess of 50 percent, for the period prior to May 16, 2019, and in excess of 70 percent, for the period from May 16, 2019, to prior to April 17, 2020. In May 2016, July 2016, March 2017, and April 2017the Veteran was alert, oriented times three, neat and groomed. His affect was blunted to some range. His mood was described as doing "alright" ranging to "more mellow on the medication" and "occasionally down." His speech was clear, coherent and organized, normal in tone and rate. He denied suicidal and homicidal ideation, plan or intent. He was future oriented, denied psychosis and none was evident. He reported some sleep difficulty and getting between 4 and 7 hours of sleep. He described a history of depressive symptoms of intermittent sad mood, anhedonia, disturbed sleep, has heard his name called, and anxiety symptoms of some checking behaviors, hypervigilance, irritability, occasional nightmares or bad dreams about Vietnam. On VA examination in June 2017, the diagnosis was PTSD. The examiner characterized the related occupational and social impairment as "reduced reliability and productivity." The Veteran's symptoms were depressed mood, anxiety, chronic sleep impairment, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. Behavioral observations were that the Veteran was alert and oriented to person, place, time and circumstance, cooperative, pleasant, and with good eye contact. His speech was normal in rate, volume, and tone. The Veteran's mood was somewhat depressed and his affect was consistent with topic, had adequate range, there was no lability. He had linear, relevant, goal-directed thought processes. The Veteran denied suicidal and homicidal ideation and there were no hallucinations, ruminations or obsessional ideation. His memory was intact and his judgment were fair. The examiner concluded that the Veteran's psychiatric symptoms more likely than not result in a moderate impairment of occupational and social functioning. In June 2017 the Veteran reported that he was taking medication. He slept about 6 to 7 hours and occasionally woke up. He reported that he was still having some panic, has shortness of breath, anxiousness and was irritated. Occasionally gets shaky. He tried to calm himself down and used deep breathing exercises or showered. He felt depressed sometimes. The Veteran was alert, oriented times three, neat and groomed. His affect was blunted to full range. Mood was described as occasionally down. He had some anxiety. Speech was clear, coherent and organized, normal in tone and rate. He denied suicidal and homicidal ideation, plan or intent. He was future oriented and denied psychosis. He described a history of depressive symptoms of intermittent sad mood, anhedonia, disturbed sleep, has heard his name called, and anxiety symptoms of some checking behaviors, hypervigilance, irritability, occasional nightmares or bad dreams about Vietnam. In August 2017 and April 2018 the Veteran was alert, oriented times three, neat and groomed. His affect was blunted to full range. Mood was described as not too good due to psychosocial stressors ranging to "little depressed" secondary to recent fracture of right radius and decreased sleep. There was some anxiety in August 2017. Speech was clear, coherent and organized, normal in tone and rate. He denied suicidal and homicidal ideation, plan or intent. He was future oriented and denied psychosis. The Veteran described a history of depressive symptoms of intermittent sad mood, anhedonia, disturbed sleep, has heard his name called, and anxiety symptoms of some checking behaviors, hypervigilance, irritability, occasional nightmares or bad dreams about Vietnam. On VA examination in May 2018, the diagnosis was PTSD. The examiner characterized the related occupational and social impairment as "with reduced reliability and productivity." In the diagnostic criteria, the examiner identified irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. The Veteran's symptoms were depressed mood, anxiety, chronic sleep impairment, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was groomed, oriented times three, pleasant, cooperative and maintained good eye contact throughout the interview. His affect was appropriate to content. There were no psychomotor abnormalities. His speech was normal in rate, volume, and tone. His thought processes were linear and goal directed. His attention, concentration, and memory were intact. His insight and judgment were good. There was no evidence of psychosis or formal thought disorder and he denied active suicidal ideation and homicidal ideation. There did not appear to be any impairment in ability to attend to activities of daily living. Since the previous examination, the Veteran continued to experience nightmares, intrusive memories, avoidance, anxiety, emotional detachment, depression, sleep problems, hypervigilance, and hypervigilance. Since the prior examination the Veteran continued in counseling/medication management. The Veteran also continued in a PTSD support group. Having reviewed Veteran's treatment notes, as well as Veteran's report of symptoms during the examination, it was the opinion of the examiner that the Veteran's PTSD symptoms had not significantly improved or been exacerbated since the prior examination. It was the examiner's opinion that the Veteran's symptoms were within a similar range of frequency and severity, as well as occupational and social functioning, as assigned in last examination. In February 2019 the Veteran reported that he had been sleeping 7 to 8 hours a night. He was appropriately dressed and groomed. Speech was normal in rate, rhythm, volume, and prosody. Motor was within normal limits. Mood was pleasant and cooperative. Affect was inconsistent with mood, appropriately reactive and full range. Thought pattern was within normal limits. Thought content was reality-based and perception was within normal limits. Insight and judgment were good. The Veteran's memory was intact. In March 2019 he was appropriately dressed and groomed. Speech was normal in rate, rhythm, and volume. Motor was within normal limitations. Mood was irritable. Affect was appropriately reactive and full range. Thought pattern was linear and thought content was reality-based. Perception was within normal limitations. Insight and judgment were fair. Cognitive function and memory were intact. In May 2019 a private provider diagnosed the Veteran with PTSD and major depressive disorder; prognosis was stable and "will stay at this level." The Veteran had panic or depression affecting the ability to function independently, appropriately, and effectively. He had chronic sleep impairment, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience and inability to establish and maintain effective relationships. It was reported that the Veteran was never married. There was mild limitation in the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; the ability to travel to unfamiliar places or use public transportation; and the ability to set realistic goals or make plans independently. There was moderate limitation in the ability to maintain attention and concentration for extended periods; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; the ability to work in coordination with or proximity to others without being distracted by them; the ability to interact appropriately with the general public; the ability to accept instructions and respond appropriately to criticism from supervisors; and the ability to respond appropriately to changes in the work setting. The ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods was markedly limited. The provider stated that the Veteran was not able to work. It was noted that the Veteran never married as his relationships were difficult to sustain longterm, due to his emotional instability. Vet has continued to struggle with these issues. He has tried through the years to engage in different activities but it has always been a challenge for him. The Veteran continued to live alone. He had contact with family members which were a support system. Otherwise, he was fairly isolated. He did volunteer work a few hours a day. The provider noted that though the Veteran had some improvement in symptoms he still suffered from nightmares, lack of trust, isolating himself from others and loneliness. In May 2019 VA treatment record the Veteran reported that he continued to do fairly well though symptoms of PTSD have not changed. He felt he was at baseline and this was the best that it gets. He continued to isolate. The Veteran avoided going out too much, but continued to volunteer. He continued to have issues with intermittent depression, but overall he felt he was better than he was in the past, and tried to keep busy. He denied suicidal ideation or homicidal ideation. He was appropriately dressed, groomed, and well spoken. His speech was normal in rate, rhythm, and volume. Motor was within normal limitations. Mood was pleasant and cooperative. Affect was appropriately reactive and full range. Thought pattern was linear and thought content was reality-based. Perception was within normal limits. Insight and judgment were good. Cognitive function and memory were intact. He continued today with issues of isolation, limited contact with family and few friends. He lived alone did not like to leave the house but he forced himself to as he knows that it is important to go out and see people and does help his mood. In December 2019 the Veteran reported that the winter was somewhat difficult for him and that the felt more depressed. He spoke about his nightmares he has at times which keep him awake. He felt that he was struggling somewhat in relations to issues with depression, and getting out of the house. He went to his daughter's house for thanksgiving. He denied suicidal thoughts and homicidal ideation. The Veteran was appropriately dressed and groomed. His speech was normal in rate, rhythm, and volume. Motor was within normal limits. Mood was pleasant and cooperative. Affect was reactive and full range. Thought pattern was linear and thought content was reality-based. Perception was within normal limits. Insight and judgment were good. Cognitive function and memory were intact. On VA examination in April 2020, the diagnosis was PTSD. The examiner characterized the related occupational and social impairment as "with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." The examiner noted that since the time of his last VA examination, the Veteran had not attempted suicide or been psychiatrically hospitalized. He received his psychiatric care from the VA and was on medications. The symptoms that have worsened the most since the time of his last examination have been nightmares have increased in frequency and intensity, increased frequency of intrusive thoughts, has to avoid watching certain television programming, irritability is nearly out of control. He was considering re-taking the VAMC Anger Management Course that he completed about 8 years prior. He was depressed more days than not. He reported self-care/hygiene deficits. When under stress he developed headaches. He had olfactory hallucinations (oil on the ship) that happened on a monthly basis. Symptoms were identified as depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; persistent delusions or hallucinations; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran presented as dysphoric and with a constricted affect. He was alert and oriented. He did not evince any disturbances in speech, thought, memory, concentration, or behavior. His insight and judgment were estimated as fair. The examiner found that there was a worsening of the Veteran's symptoms. However, there was no change in the diagnosis and no additional diagnosis. Thereafter, the examiner discussed the impacts of the Veteran's symptoms on his ability to be employed. At the June 2021 hearing, the Veteran reported that his disability had worsened over time and had not remained essentially the same all along. However, the Veteran continued to discuss that he had never been able to sustain a real relationship and that his personality and sleep issues had been present since service. Entitlement to an evaluation in excess of 50 percent, for the period on appeal prior to May 16, 2019, is not warranted. During this period the Veteran had depressed mood, anxiety, chronic sleep impairment, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. In addition, he had occasional panic attacks and had irritability. Examiners identified the Veteran's level of impairment as occupational and social impairment with reduced reliability and productivity, and moderate impairment of occupational and social functioning. However, during this period the Veteran's disability did not manifest 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; 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. The Veteran had difficulty establishing relationships, but his judgment and thinking were intact. There was no indication that the psychiatric symptoms interfered with routine behavior or self-care. Therefore, during the period prior to May 16, 2019, the symptoms do not more nearly approximate an evaluation in excess of 50 percent, and the claim is denied. Entitlement to an evaluation in excess of 70 percent disabling, for the period beginning May 16, 2019, is not warranted. At no point during this period did the Veteran's PTSD manifest total occupational and social impairment. During this period the Veteran the Veteran had contact with family members who were a support system and spent time with his family. In addition, the Veteran did volunteer work during this period. There was no evidence that the Veteran was unable to function on a daily basis or precluded from performing simple activities of daily living or that his cognitive function and behavior were grossly impaired. Speech was normal, thought pattern was linear and reality-based; judgment, insight and cognitive function were normal. Therefore, entitlement to an evaluation in excess of 70 percent, for the period beginning May 16, 2019, to prior to April 17, 2020, is denied. The Board has considered whether the Veteran's psychiatric symptoms have remained the same for the entire period on appeal. However, review of the medical records and examinations show that the Veteran's disability has progressed over time. The examiner in May 2018 indicated that the Veteran's disability manifested symptoms that were within a similar range of frequency and severity, as well as occupational and social functioning, as assigned in last examination. The May 2019 private provider identified additional symptoms, including panic or depression affecting the ability to function independently, appropriately, and effectively. Finally, upon examination in April 2020 the Veteran was noted to have additional symptoms, such as hallucinations. As such, the symptoms of the Veteran's disability have worsened over the period on appeal. Therefore, the claim for a rating in excess of 50 percent, for the period prior to May 16, 2019, and in excess of 70 percent, for the period from May 16, 2019, to prior to April 17, 2020, for PTSD, is denied. The Veteran is already in receipt of the maximum evaluation of 100 percent for the period beginning April 17, 2020. Therefore, a higher evaluation from that point onward is not for consideration. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. The claim is remanded to obtain a current examination and updated treatment records. A January 2021 examination for tinnitus included audiometric testing results. These results indicate that the Veteran had moderate to severe hearing loss present binaurally that may make it difficult in some situations to hear. The examiner noted that the Veteran would benefit from and do well with the use of binaural hearing instruments. The examiner noted that the Veteran's auditory thresholds/tinnitus do not prevent him from performing any of his daily activities including his ability to obtain or maintain employment. At the hearing, the Veteran indicated that he still had ringing in his ears and that he was supposed to get hearing aids but had not heard anything about them. The Veteran reported difficulty hearing people and that he had to turn the volume up on the device used for the hearing in order to hear the judge. He also reported difficulties with using the telephone, having to ask people to repeat and that he was looking into getting hearing aids at the VA. As the Veteran has reported that he was attempting to get hearing aids from VA, has identified additional difficulties that his hearing loss causes that were not previously considered in the examination in January 2021, these indicate a change in the Veteran's disability since the January 2021 examination. Therefore, the Board finds that the claim must be remanded to afford the Veteran a contemporaneous VA medical examination regarding the severity of his hearing loss disability. The Veteran has reported that he receives consistent treatment from VA, but the last records associated with the file are dated in August 2020. Updated records should be obtained on remand. 38 C.F.R. § 3.159. 2. Entitlement to a TDIU, for the period prior to May 16, 2019, is remanded. The TDIU claim must be remanded as inextricably intertwined with the hearing loss claim being remanded. The Veteran's service-connected disabilities do not currently meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a), for the period on appeal prior to May 16, 2019. However, in statements of record, the Veteran indicated that he has not been able to work during the entire period on appeal due to his service-connected disabilities. After readjudicating the hearing loss claim being remanded, the AOJ should adjudicate the claim for TDIU, with consideration on an extraschedular basis is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2020 to the present. 2. Thereafter, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss alone and discuss the effect of the Veteran's bilateral hearing loss on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of the above, readjudicate the issue of entitlement to a higher evaluation for hearing loss. Thereafter, adjudicate the claim for TDIU prior to May 16, 2019, with consideration of whether consideration is warranted. 38 C.F.R. § 4.16 (b). 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.