Citation Nr: 21073528 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 20-15 911A DATE: December 9, 2021 ORDER Entitlement to an effective date prior to October 3, 2016 for the award of service connection for posttraumatic stress disorder (PTSD) is denied. Prior to May 22, 2018, a rating in excess of 40 percent for bilateral hearing loss is denied. From May 22, 2018 to July 27, 2018, a 50 percent rating, but no higher, for bilateral hearing loss is granted. From July 27, 2018 to April 21, 2021, a rating in excess of 50 percent for bilateral hearing loss is denied. From April 21, 2021, a 100 percent rating for bilateral hearing loss is granted. Entitlement to a 50 percent rating, but no higher, for PTSD is granted. Entitlement to an earlier effective date of October 3, 2016 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's petition to reopen his claim for service connection for PTSD was received on October 3, 2016. 2. Prior to May 22, 2018, the Veteran was shown to have no worse than Level VI hearing in the right ear and Level IX hearing in the left ear. 3. From May 22, 2018 to April 21, 2021, the Veteran was shown to have no worse than Level IX hearing in the right ear and Level VII hearing in the left ear. 4. From April 21, 2021, the Veteran was shown to have Level XI hearing in both ears. 5. The Veteran's PTSD is reasonably shown to have been manifested by occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas has not been shown. 6. As of October 3, 2016, the Veteran's service-connected disabilities have been reasonably shown to render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 3, 2016 for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155(a) (in effect prior to March 24, 2015); 3.400. 2. Prior to May 22, 2018, the criteria for entitlement to a rating in excess of 40 percent for bilateral hearing loss 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. From May 22, 2018 to April 21, 2021, the criteria for entitlement to a 50 percent rating, but no higher, for bilateral hearing loss 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. 4. From April 21, 2021, the criteria for a 100 percent rating for bilateral hearing loss 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. 5. The criteria for entitlement to a 50 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130 Diagnostic Code 9411. 6. From October 3, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1951 to October 1953. This matter is on appeal before the Board of Veterans Appeals (Board) from a February 2017 and December 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the February 2017 rating decision included a denial of a petition to reopen a claim for service connection for hypertension. The Veteran perfected an appeal of this issue to the Board in his April 2020 Form 9. Subsequently, in a February 2021 rating decision, the RO granted service connection for hypertension. Consequently, this matter is no longer on appeal before the Board. Entitlement to an effective date prior to October 3, 2016 for the award of service connection for PTSD. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). On March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case essentially involves an allegation that a claim was received prior to that date, the Board will apply the original regulations. Under these regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Rating decisions and Board decisions become final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). In August 2010, the Veteran filed an initial claim for service connection for PTSD. In a January 2011 rating decision, the RO denied service connection for PTSD. The Veteran initially appealed this decision and in a March 2012 statement of the case, the RO continued the denial. The Veteran perfected an appeal of the decision by filing a May 2012 Form 9. In an August 2015 decision, the Board denied entitlement to service connection for a psychiatric disorder, to include PTSD. The basis for the denial was that a nexus between current psychiatric disability and the Veteran's combat related stressors during service had not been established. The Veteran did not appeal this decision to the Court of Appeals for Veterans Claims (Court), and it became final. 38 U.S.C. § 7105. In an October 2016 statement in support of claim, the Veteran indicated that he was requesting service connection for PTSD and that he would like the effective date of the award to date back to his initial claim for service connection for the disability. He noted that under the amended evidentiary standards for establishing that a stressor occurred in service, he had previously established that he served in a combat zone and witnessed deaths related to fear of a hostile military environment. He also noted that there was a nexus between his current PTSD and stressor events in service and that he wanted to be reexamined for the disability. In the February 2017 rating decision, the RO granted service connection for PTSD. An effective date of October 3, 2016 was assigned based on this being the date of the Veteran's claim to reopen the previously denied Board decision. The RO noted that new and material evidence had been received, which did show a PTSD diagnosis related to the Veteran's combat service. In a March 2017 statement, the Veteran requested an earlier effective date for the award of service connection. The Veteran indicated that his DD 214 reflected the necessary and pertinent information required under 38 C.F.R. § 3.304 (i.e. the regulation that specifically pertains to service connection for PTSD), including his duty location, combat badges and unit. He noted that he had filed for service connection for PTSD several times and unfortunately, his DD 214, which identified his in-service stressor, had been overlooked. He stated that he believed a clear and unmistakable error had been made and that his effective date should be the date that he filed for service connection for PTSD because nothing had changed since that time and his condition had worsened. The above summarized evidence shows that the Veteran's appeal for service connection for psychiatric disorder was subject to final denial by the August 2015 Board decision. The Veteran then filed a claim to reopen this final denial, which was received by the RO on October 3, 2016. Pursuant to this claim, the RO ultimately granted service connection for PTSD and assigned the effective date of October 3, 2016 for the award based on this being the date of receipt of the reopened claim. As alluded to above, the effective date of a claim reopened after a final disallowance is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In this case, the RO assigned the effective date of October 3, 2016 based on it being the date of receipt of the claim for service connection for PTSD reopened after final disallowance. Given that the record does not show any earlier claim to reopen after the final disallowance by the August 2015 Board decision, there is no basis for assigning an effective date prior to October 3, 2016 for the award of service connection for PTSD. In in his October 2016 and March 2017 statements, the Veteran alleged that an earlier effective date should be warranted based on the presence of clear and unmistakable (CUE) error. A properly filed motion for CUE must identify the specific decision in which clear and unmistakable error is being alleged. In this case, the Veteran has not identified the specific decision in which CUE is being alleged. The Board also notes that while pro se litigants' motions for CUE must be construed liberally, in this case, the Veteran is represented by counsel. Accordingly, a valid CUE motion has not been advanced in this case. In his October 2016 and March 2017 statements, the Veteran also appeared to assert that an earlier effective date should be awarded based on liberalizing law (i.e. the amendment of 38 C.F.R. § 3.304 so as not to require corroborating evidence of certain stressor events involving fear of hostile enemy activity). However, in this case, the prior final denial of the Veteran's claim by the Board was not based on his stressor event in service not being corroborated. Rather, the Board specifically conceded that his combat related stressors had been established but found that a nexus between current psychiatric disability and those stressors had not been established. In sum, given that the Board's August 2015 decision denying service connection for psychiatric disability, to include PTSD, is final and the Veteran's claim to reopen this prior final denial was received on October 3, 2016, there is no basis for awarding an effective date for the award of service connection for PTSD. The preponderance of the evidence is against this claim and it must be denied. Increased rating for bilateral hearing loss. In October 2016, the Veteran filed the instant claim for increased rating for bilateral hearing loss. In a February 2017 rating decision, the RO continued the 40 percent rating assigned to the disability. In a March 2017 notice of disagreement, the Veteran disagreed with the 40 percent rating assigned and subsequently perfected an appeal to the Board seeking a higher rating. In an April 2020 rating decision, the RO increased the rating for the bilateral hearing loss to 50 percent effective July 27, 2018. As the Veteran has not expressed satisfaction with the ratings now assigned, his appeal continues. 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). At an April 2015 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 80 100 105 LEFT 20 35 75 95 100 The pure tone threshold average was 81 decibels in the right ear and 76 decibels in the left ear. Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 50 percent in the left ear. The Veteran reported that when he could not hear things, he felt confused. At a December 2016 VA contract audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 40 70 90 100 LEFT 15 40 65 90 100 The pure tone threshold average was 75 decibels in the right ear and 73.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 70 percent in the left ear. The Veteran reported that his social life was limited by the inability to hear conversations or enjoy music. He indicated that he could not enjoy activities with his family that included loud vibrating sounds. At a May 22, 2018 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 75 100 105+ LEFT 15 35 65 90 100 The pure tone threshold average was 81 decibels in the right ear and 73 decibels in the left ear. Speech audiometry revealed speech recognition ability of 48 percent in the right ear and 52 percent in the left ear. The Veteran reported that because of his limited hearing he would have to 'ask my wife the same thing over and over.' At an April 21, 2021 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 70 90 100 LEFT 40 45 75 105+ 105+ The pure tone threshold average was 77.5 decibels in the right ear and 82.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 20 percent in the right ear and 8 percent in the left ear. The Veteran reported that he sometimes had difficulty in noisy situations and in group situations, noting that he would need to read lips to understand what people were saying. The Veteran's existing 40 percent rating in effect prior to July 27, 2018 is based on the findings of the April 2015 VA audiological evaluation. This examination showed right ear pure tone threshold average of 81 decibels and right ear speech recognition of 70 percent. Entering this result into Table VI yields a numeric designation of Level VI hearing. Also, the April 2015 VA examination showed left ear pure tone threshold average of 76 decibels and left ear speech recognition of 50 percent. Entering this result into Table VI yields a numeric designation of Level IX hearing. Entering the resulting bilateral numeric designation of Level VI hearing in the right ear and Level IX hearing in the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Prior to May 22, 2018, hearing loss more severe than that measured during the April 2015 VA evaluation was not shown. Accordingly, prior to May 22, 2018, a rating in excess of 40 percent rating for bilateral hearing loss was not warranted. Notably, the May 22, 2018 examination showed right ear pure tone threshold average of 81 decibels and right ear speech recognition of 48 percent. Entering this result into Table VI yields a numeric designation of Level IX hearing. Also, the May 22, 2018 VA examination showed left ear pure tone threshold average of 72 decibels and left ear speech recognition of 52 percent. Entering this result into Table VI yields a numeric designation of Level VIII hearing. Entering the resulting bilateral numeric designation of Level IX for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Accordingly, effective May 22, 2018, a 50 percent rating for the Veteran's bilateral hearing loss is warranted. Subsequently, the April 21, 2021 VA contract examination showed right ear pure tone threshold average of 77.5 decibels and right ear speech recognition of 20 percent. Entering this result into Table VI yields a numeric designation of Level XI hearing. Also, the April 21, 2021 VA evaluation showed left ear pure tone threshold average of 82.5 decibels and left ear speech recognition of 8 percent. Entering this result into Table VI yields a numeric designation of Level XI hearing. Entering the resulting bilateral numeric designation of Level XI for the right ear and Level XI hearing for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 100 percent disability rating under Diagnostic Code 6100. Accordingly, effective April 21, 2021, a 100 percent rating for bilateral hearing loss is warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of functional loss from his hearing loss. 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 complaints pertain to reduced hearing acuity and clarity, which is what is contemplated in the ratings assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). In sum, a 40 percent rating is warranted prior to May 22, 2018. From May 22, 2018 to April 21, 2018, a higher 50 percent rating is warranted. From April 21, 2021, a 100 percent rating is warranted. Increased Rating for PTSD and TDIU Factual Background At a December 2016 VA mental health visit, the Veteran reported that he was troubled by his increasing symptoms. He was accompanied to the appointment by his wife and daughter. They reported that he was eating less and less and was not feeling well. They indicated that when the Veteran was moody, he sometimes wanted to be by himself. Then, if they tried to cheer him up, the Veteran became more irritated and would tell them to leave him alone. They reported that it seemed like the Veteran would rather sit outside with the dog than spend time with them. The Veteran reported having nightmares pertaining to service about once or twice a month. He also reported that he could be startled by being touched and his family members reported him being startled by noises when his hearing aids were turned up too high. The Veteran noted that his symptoms were interfering with his domestic life. The clinician noted that the Veteran's entire interview was conducted with the door open as he did not like to feel confined. He avoided crowds and required additional space at the dinner table. The Veteran's mood was noted to be somewhat agitated because of encountering a traffic jam. Regarding sleep, he reported some good nights and some bad nights. He noted that his interests included watching sports on tv and that his focus would come and go. His appetite was fair, and he denied suicidal or homicidal ideation. Mental status examination showed that the Veteran had adequate grooming and hygiene. He exhibited good eye contact and he was cooperative. His speech was fluent with normal rate, volume, and articulation. His thought process was logical, organized and goal directed. There were no loose associations or flight of ideas. There was no suicidal ideation, plan, or intent. There was no homicidal ideation, plan, or intent. There were no delusions or paranoid ideation. There were no auditory or visual hallucinations and no overt psychosis was noted. Insight and judgment were fair, the Veteran was alert and oriented x 4, remote and recent memory was grossly intact, fund of knowledge was appropriate to educational level, and attention and concentration were sufficient for the interview. At a February 2017 VA mental health follow-up visit, the Veteran was found to be exhibiting symptomatology similar to that found during the December 2016 visit. At a January 2017 VA contract examination, the diagnosis was PTSD. The examiner found that the disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It was noted that the Veteran worked in maintenance for 20 years and had last worked in February 1996. It was also noted that he was being treated at VA for PTSD and was taking Citalopram, Sertraline and Meclizine for the disorder. The Veteran reported no history of legal problems and no history of substance abuse. The examiner found that the symptoms of the Veteran's PTSD included depressed mood, suspiciousness, panic attacks occurring weekly or less often, mild memory loss, such as forgetting names, directions or recent events and difficulty to adapting to stressful circumstances, including work or worklike setting. The examiner observed that the Veteran was uneasy about having the door shut in the interview room for privacy purposes but was relaxed during the interview. He was pleasant and cooperative despite his anxiety. He was oriented in all spheres. His thought processes were logical and goal oriented. No hallucinations or delusions were reported. The Veteran denied homicidal or suicidal ideation. The examiner commented that the Veteran generally appeared to be currently struggling. Based upon the examination, the examiner found that the Veteran needed to seek follow up treatment and could benefit from counseling to deal with his current mental health issues. At a February 2018 VA examination, the diagnosis was PTSD. The examiner found that the disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, thought generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It was noted that the Veteran was a high school graduate and had one year of college. It was also noted that he was currently being treated with medications, citalopram, and Seroquel. The examiner found that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events and difficulty to adapting to stressful circumstances, including work or worklike setting. The examiner noted that the Veteran was pleasant and cooperative, was oriented to all spheres and his thought processes were logical and goal oriented. The Veteran did not report any hallucinations, delusions, or suicidal ideation. At an October 2018 VA examination, the diagnosis was PTSD. The examiner found that the Veteran's PTSD related irritability, hypervigilance, and decreased motivation could lead to mild difficulty in a physical or sedentary work environment, with the following types of functional limitations: reduced productivity, low frustration tolerance, and difficulty working with others. The Veteran also reported daytime fatigue due to insomnia and the examiner noted that this symptom could lead to mild difficulty with the completion of complex tasks. Overall, the examiner found that the Veteran's PTSD was manifested by occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. When asked to describe his marital relationship, the Veteran reported that "some things could be better." He stated that his wife and other family members have accused him of being "moody" due to his verbal outbursts and tendency to isolate. He indicated that he and his wife went to church and occasional "ballgames" together, but he stated that he had lost interest in sports over the years. He described his relationship with his four children as good and noted he had some friends in his church circle who he did not visit with frequently. The examiner noted that the Veteran had retired from his job in 1996. The Veteran reported that he had not taken any psychiatric medications since the last examination and per the VA treatment records, he had not seen a mental health provider since 2017. He stated that he was no longer taking psychotropic medications because he did not feel he had benefitted from them. He continued to report a full range of PTSD symptoms secondary to combat exposure in Korea. He noted recurrent intrusive memories of in-service events that made him feel sad. He had recurrent war related dreams, usually several times per week, that sometimes disrupted his sleep. He avoided talking about his war experiences. He had few leisure interests and was irritable and hypervigilant. He had intermittent difficulty falling and staying asleep, even in the absence of nightmares. He described his appetite as fair. No psychomotor agitation or retardation was observed. There was a full range of affect. No excessive fatigue was reported. He indicated that he sometimes has passive thoughts of death but denied suicidal plans or intent. Homicidal ideation was also denied. No symptoms of psychosis were reported. The examiner found that the Veteran's PTSD symptoms included depressed mood, anxiety, chronic sleep impairment and disturbances of motivation and mood. In an October 2018 claim for TDIU, the Veteran reported working full time from July 1976 to February 1996. He also reported that he graduated high school and attended one year of college. In a November 2019 statement, the Veteran's wife indicated that she had witnessed the Veteran having panic attacks where he began to have trouble breathing, would sweat and could not calm down. She reported that if the Veteran was watching something on TV and witnessed a killing, it upset him, and he got worked up. She noted that he struggled with anxiety and sometimes re-lived his experiences from service over and over. She reported that he stayed nervous a lot of the time and did not like it when things got off plan. She noted that they did not go out to do things anymore because he would get nervous around crowds. She reported that he got uncomfortable leaving the house because he would be worried something was going to go wrong. She stated that the Veteran would go to the restroom prior to leaving the house to try to pull himself together before being out in the public. She indicated that he was very alert when he was out in public and when out in the community, if he felt ready to leave to go home and was not able to leave right away, he would get nervous and fidgety. The wife reported that the Veteran struggled with his memory and their daughter usually kept his schedule. She noted that he also struggled with conversation, saying things that did not make sense or were tangential. She reported that he would generally feel exhausted even after getting a good night of sleep. She indicated that he had mood swings and temper problems and that stress overwhelmed him. She noted that the Veteran had times where he just had outbursts due to his experiences in the military, yelling the name of one of the corporals that was killed while he served. She indicated that the Veteran cut conversations short due to not being able to hear and becoming frustrated. At a December 2019 private psychological evaluation, the diagnosis was PTSD. The examiner found that the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was noted to keep his struggles to himself, not wanting to burden others and to be socially isolated and withdrawn. The psychologist indicated that the Veteran left his job in 1996 because he was no longer able to maintain gainful employment. The examiner commented that the Veteran detailed great ongoing difficulty with his symptom pattern. He remarked that he could no longer enjoy the simplest of activities. Upon mental status interview, the Veteran's attention was normal, and his concentration appeared variable. He complained of trouble with short and long-term memory and struggled with remembering basic information. The Veteran's speech flow was normal, although he was brief with information offered. On examination, his thought content was appropriate to the circumstances. His organization of thought was goal-directed and there was no report of overt hallucinations. The Veteran's fund of knowledge seemed to be slightly below average, as did his intellectual abilities. His capacity for abstraction, ability to interpret proverbs and judgment were all found to be average. The Veteran's mood was anxious and nervous, and his affect was restricted. He reported that he did feel anxious and depressed. He exhibited symptomatology of PTSD in that he was vague with response, seemed rather vigilant when speaking to the examiner and seemed cautious of the importance of the interaction with the examiner. The examiner noted that the Veteran was insecure and unsure of himself over the course of the social interaction. The examiner also noted that the Veteran's wife handled the household finances. In an accompanying report, the December 2019 psychologist noted that the Veteran lived with his wife and that she did the food shopping, meal preparation, maintained the household chores, managed the finances, and reminded him to shower, shave and get a haircut. The Veteran reported that he showered 2 to 3 times per week. The psychologist commented that the Veteran's symptom complex related back to his original claim for service connection for PTSD received in October 2016. The psychologist indicated that the Veteran suffered from chronic sleep impairment including insomnia, broken sleep, and nightmares. The psychologist noted that the Veteran reported psychological and physiological reactions to internal and external cues because of their resemblance to his traumatic military experience. Regarding employability, the psychologist found that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. The psychologist noted that the Veteran reported not getting enough restful sleep and feeling fatigued nearly every day which would be a safety issue in the workplace. The psychologist indicated that the Veteran reported difficulty remembering events or requests and occasionally forgot details or sequencing that would affect his employment. The psychologist also noted that the Veteran had difficulty maintaining and sustaining a steady mood and this inconsistent mood tended to lead to problems in his social and work life. The psychologist indicated that the Veteran reported that he had not been able to have meaningful occupational or social relationships and believed that he could not let others into his life because of issues with trust. He remarked that he felt nervous and worried and struggled with ongoing anxiety issues. The psychologist commented that this sort of anxiety was a safety hazard in the workplace. The psychologist also commented that with poor interpersonal skills and workplace trust issues, the Veteran would have an increase in paranoia and would struggle with appropriate work interaction. Additionally, the examiner commented that the Veteran had physical signs of depression that interfered in daily work manifesting as extreme fatigue, hypersomnia, appetite issues, weight fluctuation and emotional outbursts. The psychologist noted that individuals with higher distractibility, absenteeism and emotional turmoil could be deemed as inappropriate in the workplace. The psychologist commented that there is a body of literature detailing the connection between PTSD and unemployment. In fact, studies confirmed the association of higher unemployment and PTSD related to the presence of a sense of foreshortened future by those suffering from PTSD. Additionally, another study found that veterans diagnosed with PTSD and chronic unemployment and/or underemployment have social struggles (e.g., inadequate transportation, poor housing options, family care burdens, and other social responsibilities) which serve as barriers to gainful employment. Furthermore, research indicated that a PTSD diagnosis leads to occupational dysfunction and poor work-related quality of life. Therefore, not sustaining and maintaining meaningful gainful employment is a resulting social and occupational symptom of debilitating PTSD. The psychologist concluded that the Veteran struggled with depressed mood, hypervigilance, and disturbances of motivation and mood. Also, his difficulty maintaining effective relationships indicated that he struggled with a severe impairment. It was the belief of the psychologist that these symptoms were indeed related to his service and should be reflected in the rating assigned for his PTSD and in determining whether he met the criteria for TDIU. Additionally, the psychologist noted that the Veteran's symptoms had been in existence since his return from military service and had continued through the date of filing for benefits with his deterioration continuing to the present. The psychologist found that the Veteran's troubling PTSD symptoms were preventing him from maintaining substantially gainful employment. An accompanying December 2019 residual functional capacity (RFC) assessment indicates that the Veteran was expected to miss three or more days per month of work due to his mental disorder; to leave early from work 3 or more days per month due to mental disorder; to not stay focused for at least 7 hours of an 8 hour work day due to mental disorder; and more than once per month, respond in an angry manner without becoming violent to normal pressures and constructive criticisms in the workplace. In a March 2020 consultation, a private physician opined that after reviewing the claims file and interviewing the Veteran, it was at least as likely as not that the Veteran's symptoms of PTSD, hearing loss, and tinnitus, with accompanying concentration, memory, and communications limitations rendered him unable to maintain substantial gainful employment. She noted that her opinion was based on his service-connected impairments alone and did not include non-service-connected impairments. The physician noted that the Veteran informed her that he retired in 1996 after working in the maintenance department starting in 1976 and that he had not worked since retirement. He reported that as time had gone on, he had suffered from increasing symptoms of PTSD and worsening hearing loss. The issues with his PTSD and hearing loss over the past decade had increased to the point where he did not leave the house much and did not want to be around people. He stated that he would lash out at his family and often times he could not carry on conversations because of his hearing loss. After consulting with the Veteran, the physician found that he would be required to miss work or leave early three or more days per month due to the limitations from his PTSD and hearing loss particularly, would need more than one additional break per day aside from normally scheduled morning, lunch, and afternoon breaks so he could calm down, get away from others, etc., and for more than three days per month he would not stay focused for at least 7 hours of an eight-hour workday due to extra needed breaks, anger outbursts, issues concentrating, and medication side effects. The physician commented that the Veteran was constantly suffering from symptoms of his PTSD and often had difficulty concentrating and staying focused. She also commented that due to the Veteran's PTSD and tinnitus, he slept poorly at night. The physician concluded that after consultation with the Veteran, review of his records, and her medical experience, it was her opinion that it was at least as likely as not that the symptoms of his PTSD, hearing loss, and tinnitus, as well as the concentration, memory, and communications limitations stemming from these disabilities, rendered the Veteran unable to maintain substantial gainful employment as a result of his service connected hearing loss, PTSD, and tinnitus. In a July 2020 statement, the Veteran's wife indicated that the Veteran would remember stressful experiences suffered in service and that this would affect his behavior. She reported that loud noises triggered flashbacks and hallucinations. She noted that he was restless and could not go to sleep or relax. She also noted that he was unable to accept reality. She also indicated that he would yell or speak in loud tones, which was detrimental to a harmonious family relationship and that generally help was needed for his disposition. At a November 2020 VA contract examination, the diagnosis was PTSD. The examiner commented that the Veteran continued to meet the DSM V criteria for PTSD, that sleep difficulties are subsumed in this diagnosis and that no separate sleep diagnosis was warranted. Prominent deficits in focus/concentration and mild impairment in orientation were noted, and receptive language skills also seemed impaired. The Veteran stated that inability to "comprehend" the content of verbal discussions leads to "vexation," and clarified that he can "hear the words but can't make sense of them." The examiner indicated that cognitive changes were not believed to indicate worsening of PTSD symptoms and the data derived during the evaluation did not sufficiently warrant a diagnosis of a separate neurocognitive disorder. The examiner noted that the Veteran claimant did report hearing loss (wearing hearing aids), however this did not contribute to his comprehension deficits. The examiner found that the Veteran's psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, thought generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that he lived with his wife and daughter and reported that his family was supportive. No interpersonal discord was reported. He stated that he enjoyed walking in his yard. The examiner noted that the Veteran was enrolled in VA mental health treatment and received case management services but was not taking psychotropic medications. The examiner found that the Veteran's symptoms included chronic sleep impairment, disturbances of motivation and mood and disorientation to time or place. The examiner observed that the Veteran completed personal hygiene independently except that he needed getting help out of the tub from time to time. He was still driving short distances although he did not drive himself to appointments. He took his medications independently and seldom prepared his meals. He was oriented to person, place, date and situation and his speech had a normal rate, volume, and tone. He described his current mood that day as fair "until I lost my pocketbook." The examiner found that the Veteran's insight was fair. Memory for remote recall was adequate. Immediate recall was 2/3 words and five minutes delayed recall was 0/3. Attention and concentration were inadequate. The Veteran inadequately demonstrated the ability to add and subtract simple mathematical equations using addition, subtraction, division, and multiplication. He inaccurately answered simple questions related to making change and was unable to respond to proverb interpretation test, stating could not make sense of the words. He was unable to understand similarities testing and indicated that he could hear but not comprehend. His estimated intelligence was average, his judgment (via hypothetical situations) was fair and this thought content was logical, and goal directed. He denied currently experiencing audio or visual hallucinations and did not appear to be responding to internal stimuli at the time of interview. There was no paranoia or delusional thought patterns reported at the time of the evaluation. There was also no poverty of speech or disturbances of consciousness reported. The Veteran denied any suicidal or homicidal ideation. At a May 2021 VA contract examination, the diagnosis was unspecified insomnia disorder. The examiner found that the disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, thought generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that his marriage and relationship with his children were both good. The Veteran reported problems staying and falling asleep. He expressed that his sleep problems began around 1953. He stated he was diagnosed with sleep apnea, and explained he sometimes used his CPAP machine. He explained he slept in a different bedroom from his wife because he snored so loudly. With respect to appetite, he denied any changes. The veteran reported "I'm not what I was in my younger years." He expressed "sometimes I'm despondent and wish some things were not what they were." He explained he sometimes had a "bad night" where he was "disturbed about things I wish was otherwise." The Veteran stated he had some days where he wanted to be alone. Additionally, he noted he did not recall information or remember names but felt that this was due to his age. He explained his mood was "not at an all-time high or all-time low." The examiner found that the Veteran's symptoms included chronic sleep impairment and difficulty adapting to stressful circumstances, including work or work-like setting. Mental status examination showed the Veteran was alert and oriented. He was calm, cooperative, and pleasant and exhibited good eye contact. Psychomotor functioning was within normal limits and his speech showed appropriate rate, volume, and tone. His language was appropriate to his level of age and education. His described his mood and affect as about 5 out of 10 with some good days and bad days. Affect was euthymic, full range, appropriate and mood congruent. Thought process was logical and goal directed and thought content showed no evidence of psychosis, suicidal ideation, or homicidal ideation. Associations were intact and recent, remote, and immediate memory were grossly intact to conversation, as were attention span and concentration. In a June 2021 brief, the Veteran's attorney argued that the Veteran should receive an increased rating for PTSD effective October 3, 2016, the effective date of service connection, and should be granted TDIU effective this date. Increased Rating for PTSD. As noted above, in the February 2017 rating decision, the RO granted service connection for PTSD. A 30 percent rating was assigned effective October 3, 2016. The Veteran appealed the rating assigned in a June 2017 notice of disagreement and subsequently perfected this appeal to the Board by filing an April 2020 Form 9. The Veteran's PTSD is rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this Code, 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). 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. When evaluating mental health disorders, the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are not meant to be exhaustive. Id. Also, when evaluating mental health disorders, 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 standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Notably the VA and VA contract examinations during the appeal period have generally found that the Veteran's PTSD has been manifested by 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). However, the evidence indicates that the Veteran has some symptoms, which the rating criteria indicate are specifically compatible with a higher, 50 percent rating, including disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. Also, at the October 2018 VA examination, the examiner found that the Veteran's PTSD related irritability, hypervigilance and decreased motivation could lead to functional limitations in the work setting, including reduced productivity, low frustration tolerance and difficulty working with others. The examiner also noted that the Veteran reported daytime fatigue due to insomnia (which is reasonably shown to be a symptom of the PTSD) that could lead to mild difficulty in the completion of tasks. Additionally, the Veteran's wife described the Veteran as having significant anxiety when going out in public, problems with temper and feeling overwhelmed by stress, and significant difficulty with conversation, including some nonsensical and tangential content. She also reported that the Veteran had problems with memory and that his daughter usually kept his schedule. Further, in the March 2020 consultation, the private physician concluded that it was at least as likely as not that the Veteran's symptoms of PTSD, hearing loss and tinnitus, in combination, rendered him unable to maintain substantial gainful employment, finding that the PTSD symptomatology was a highly significant contributor to this unemployability. Also, the November 2020 VA contract examiner found prominent deficits in focus/concentration, mild impairment in orientation and impaired receptive language skills, which were not attributed to any separate neurocognitive disorder. The Board finds that the findings of the above symptomatology places the evidence in equipoise as to whether the Veteran's occupational and social impairment results in reduced reliability and productivity, particularly given the findings indicative of highly significant employment-related impairment from the PTSD. Thus, affording the Veteran the benefit of the doubt, a higher 50 percent rating is warranted for the Veteran's PTSD for the entire appeal period. A higher 70 percent rating is not warranted as the Veteran's PTSD is not shown to result in deficiencies in most areas. In this regard, as noted, the VA and VA contract examinations show overall generalized findings of a less severe level of impairment. The Veteran is reasonably shown to have deficiencies in mood, and work. However, he is not shown to have a deficiency in family relations, judgment or thinking compatible with assignment of a 70 percent rating for severe PTSD symptomatology. In regard to family relations, while there is evidence of difficulties, including sometimes preferring to be alone or to be with the family dog and exhibiting irritability and anger, the Veteran continues to maintain a consistent relationship with his wife and daughter and also has been noted to get along well with his other children. Regarding judgment and thinking, the December 2016 and February 2017 VA mental status examinations showed the Veteran's thought process was logical, organized and goal directed and that his judgment was fair. Also, at the January 2017 and February 2018 VA examinations, thought processes were logical and goal oriented. Additionally, the May 2021 examiner found that the Veteran's judgment was fair, and his thought content was logical, and goal directed. Notably, the December 2019 private psychologist did find that the Veteran's PTSD symptomatology resulted in occupational and social impairment with deficiencies in most areas. However, the psychologist also found that the Veteran's thought content was appropriate to the circumstances; his organization of thought was goal-directed with no report of overt hallucinations; and his capacity for abstraction, ability to interpret proverbs and judgment were average. More generally, although the December 2019 VA private psychologist did assess symptomatology resulting in deficiencies in most areas, this assessment is inconsistent with those of the January 2017, February 2018, October 2018, November 2020, and May 2021 examiners. Accordingly, given the isolated nature of the December 2019 determination, the weight of the medical evidence is against a finding that the Veteran's PTSD symptomatology resulted in deficiencies in most areas at any time during the appeal period. The Veteran's wife did also report that the Veteran experienced some difficulty associated with thinking, indicating that he sometimes said things that did not make sense or were tangential and that "he was unable to accept reality." However, given the overall consistent professional assessments that the Veteran's level of thinking and judgment has been at least fair (aside from the isolated findings of the December 2019 psychologist); and given the relatively limited and non-specific account by the Veteran's wife of his problems with thought processes, the Board finds that the weight of the overall evidence is against a finding that the Veteran has had deficiencies in thinking or judgment compatible with assignment of a higher, 70 percent rating for severe PTSD during the appeal period. The Veteran has also not generally been shown to exhibit symptoms compatible with assignment of a higher, 70 percent rating. In this regard, he is generally not shown to have suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (to a level of unprovoked irritability with periods of violence); spatial disorientation; or inability to establish and maintain effective relationships. The December 2019 private psychologist did find that the Veteran had near continuous panic affecting the ability to function independently, appropriately and effectively, neglect of personal appearance and hygiene with intermittent ability to perform activities of daily living and inability to establish and maintain effective relationships but these are isolated findings, which are inconsistent with the other numerous VA and VA contract examinations summarized above. Notably, the Veteran is shown to have some difficulty with establishing and maintaining relationships, but he has not been demonstrated to be unable to do so. The Veteran's wife also referred to him having significant difficulty with conversation, including some nonsensical and tangential content. Thus, there is some evidence of intermittently illogical, obscure, or irrelevant speech. However, to the extent this (or any other symptom that might be compatible with a higher 70 percent rating) has been present, it has not been shown to result in deficiencies in most areas. Accordingly, as occupational and social impairment with deficiencies in most areas has not been shown during the appeal period, a higher 70 percent rating for the Veteran's PTSD is not warranted. Entitlement to TDIU. In a May 2021 supplemental statement of the case, entitlement to TDIU was granted effective June 15, 2017 but was denied prior to that date. The Veteran asserts that TDIU should be awarded effective October 3, 2016, the effective date of the award of service connection for PTSD. The Board notes that as the Veteran's claim for increase for PTSD was pending as of October 3, 2016 (due to him disagreeing with initial rating assigned for PTSD by the February 2017 rating decision) and as there is evidence going back to this date suggesting that he may have been unemployable due to his service-connected disabilities (e.g. evidence indicating that he stopped working in 1996 and evidence showing significant impairment from psychiatric disability and hearing loss and tinnitus disability), his TDIU claim can be considered as part and parcel as his claim for increase and can be considered as dating back to October 3, 2016. See Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). Thus, the remaining question is whether the Veteran's service-connected disabilities met the criteria for TDIU going back to this date. A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. As of October 3, 2016, the Veteran's service-connected disabilities included PTSD, rated 50 percent; hearing loss, rated 40 percent; and tinnitus, rated 10 percent. Thus, the combined disability rating is 70 percent and the Veteran meets the schedular criteria for assignment of TDIU. Also, in the March 2020 medical opinion, the private physician determined that the Veteran's combination of PTSD, hearing loss and tinnitus rendered him unable to maintain substantial gainful employment. There is no specific medical or vocational opinion of record to the contrary. Moreover, the Veteran's past work experience is primarily limited to maintenance and his educational experience is limited to one year of college. Given his significant impairment from PTSD, hearing loss and tinnitus, it does not appear that he could return to a substantially gainful level of maintenance work and given his limited educational background, it does not appear he could be retrained to work in a position that might be able to accommodate these significant disabilities. Thus, the evidence is at least in equipoise as to whether the Veteran has been unable to obtain or retain substantially gainful employment due to his service-connected disabilities since October 3, 2016. Accordingly, a TDIU award is warranted effective this date. (Continued on the next page) The Board notes that this constitutes a full grant of the benefit sought as the Veteran and his attorney specifically requested a TDIU award effective October 3, 2016. Moreover, there is no basis for assigning an earlier effective date as the Veteran was not service connected for PTSD prior to this date and the impairment from this disability is a component of the award of TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.