Citation Nr: 21073597 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-22 601A DATE: December 9, 2021 ORDER Entitlement to an initial rating in excess of 70 percent prior to June 20, 2019, for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence fails to demonstrate that the Veteran's service-connected PTSD was manifested by total occupational and social impairment prior to June 20, 2019. 2. The preponderance of the evidence demonstrates that the Veteran's bilateral hearing loss disability was not incurred in, or otherwise related to, his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for service-connected PTSD prior to June 20, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to July 1970, and from September 1970 to March 1972. In March 2021, the Board remanded the Veteran's appeal to the agency of original jurisdiction (AOJ) for further development. The appeal has now been returned for further appellate consideration. In its March 2021 remand, the Board directed the AOJ to associate with the claims file the results of a July 2012 audiogram. Despite its efforts, the AOJ received notice in June 2021 that the audiogram results were not in the system. The AOJ then informed the Veteran of the response it received, and it gave him another opportunity to submit the audiogram; however, he did not do so. The Board finds that there is substantial compliance with the Board's prior remand instructions, and that further attempts to obtain the July 2012 audiogram would be futile. I. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation under the general rating formula, the primary consideration of the Board of Veterans' Appeals (Board) is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id. at 117-18. The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio, 713 F.3d at 117; 38 C.F.R. § 4.130. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The discussion and analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran's PTSD has been rated 70 percent disabling for all times prior to June 20, 2019. After that date, a maximum 100 percent rating is in effect. The key question before the Board is whether there is sufficient evidence of record to award a 100 percent rating (the only rating under the Schedule higher than the 70 percent currently assigned) prior to June 20, 2019. Based on the evidence of record, an increased rating prior to June 20, 2019 is not warranted. A December 2014 VA treatment record noted the Veteran's report of a depressed mood and frustration due to his job situation. He also reported a decrease in interest, only three to four hours of sleep, and waking up in the middle of the night. He also reported a decreased appetite, poor energy, and feeling hopeless. He denied feelings of guilt and suicidal ideation. He also denied feelings of irritability. He reported not liking elevators, but he denied other phobias. He reported problems with hypervigilance and hearing things, and he stated that the auditory hallucinations come and go. The Veteran was noted to be cooperative, he maintained fair eye contact, his speech was regular, and his thoughts were logical and goal-directed without delusions. He denied suicidal and homicidal ideations, and his insight and judgment were good with no obvious deficits in cognition. He was diagnosed with mood disorder versus major depressive disorder, mild. Another December 2014 VA treatment record noted that he denied memory problems. A February 2015 VA treatment record noted that the Veteran was getting an extra hour of sleep and his mind was racing less. Upon examination, the Veteran was cooperative, polite, and attentive. His cognitive functioning was grossly intact, his affect was restricted but stable, his thought processes were sequential and goal-directed, and he denied suicidal and homicidal ideation. He also denied perceptual disturbances, and his insight and judgment were fair. A March 2015 VA treatment record noted that the Veteran appeared to be pleasant, attentive, and cooperative. His speech, including his thought processes and content, were logical, coherent comprehensible, organized, and goal directed. His mood was angry and irritable, his affect was appropriate, and his cognitive functioning was within normal limits with a memory impairment and a good fund of knowledge. An April 2015 VA treatment record noted the Veteran's report of ongoing sleep problems and nightmares. He reported that he continued to hear voices in his head, but they come and go. Upon examination, the Veteran was cooperative, polite, and attentive. His cognitive functioning was grossly intact, his affect was mildly restricted but stable, his thought processes were sequential and goal-directed, and he denied suicidal and homicidal ideation. He also denied perceptual disturbances, and his insight and judgment were fair. An October 2015 VA treatment record noted that the Veteran worked as a security guard. A May 2016 VA treatment record noted that the Veteran continued to have flashbacks related to people jumping off of a plane, and he also experienced panic attacks when going through tunnels or bridges. Upon examination, the Veteran was cooperative and attentive. His cognitive functioning was grossly intact, his thought processes were sequential and goal-directed, and he denied suicidal and homicidal ideation. He also denied perceptual disturbances, and his insight and judgment were fair. The Veteran underwent a VA examination in December 2017, and he was diagnosed with PTSD with social withdrawal, dysphoric mood, sleep disturbances, and memory challenges. The examiner concluded that his psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The examiner then noted that the Veteran's symptoms included recurrent distressing dreams; intense or prolonged psychological distress; avoidance behaviors; persistent negative emotional state; feelings of detachment; persistent inability to experience positive emotions; irritable behavior and angry outbursts; reckless or self-destructive behavior; hypervigilance; problems with concentration; and sleep disturbances. Other symptoms included depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory loss for names of close relative, own occupation, or own name; and impaired impulse control, such as unprovoked irritability with periods of violence. A February 2018 VA treatment record noted that the Veteran had been hearing voices in his head for the past month, and he felt paranoid when he left the house with his girlfriend. It was noted that the Veteran worked part-time with a security company. A May 2018 VA treatment record noted that the Veteran worked as a security guard. A September 2018 VA treatment record noted that the Veteran continued to hear voices, and that he would get angry. Upon examination, the Veteran was cognitively intact. His mood was euthymic, his thought processes were linear and goal-directed, and he denied suicidal and homicidal ideation. He also denied perceptual disturbances, and his insight and judgment were fair. An October 2018 VA treatment record indicated that the Veteran worked the night shift from 2:00pm to 10:00pm. A June 2019 VA examiner noted that, since the Veteran's report noted that since his last VA examination, the Veteran had become more isolative, and he denied any friendships Upon consideration of the entire record, prior to June 20, 2019, the Veteran's PTSD was generally been manifested by the following: depressed mood, anxiety, sleep disturbances, nightmares, suspiciousness, irritability and angry outbursts, disinterest in activities, social isolation, feelings of hopelessness, hallucinations, persistent negative emotional state, reckless or self-destructive behavior, hypervigilance, panic attacks, chronic sleep impairment, memory loss for names of close relative, own occupation, or own name; impaired impulse control, such as unprovoked irritability with periods of violence. Nevertheless, the Veteran was able to maintain employment as a security guard, and he was able to maintain a relationship with his longtime girlfriend and family. Collectively, the lay and medical evidence of record does not demonstrate that the Veteran's PTSD manifested in symptoms so severe as to cause total occupational and social impairment prior to June 20, 2019. Despite deficiencies in most areas of occupational and social impairment, he has generally been shown to have logical and organized thought processes. Throughout the appeal period prior to June 20, 2019 he has generally been alert, cooperative, and oriented. Despite his social avoidance behaviors, he was still able to maintain familial relationships. The evidence of record indicates the Veteran was generally able to perform activities of daily living. He did not exhibit gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting herself or others, intermittent inability to perform activities of daily living, or disorientation to time or place. Although he at times experienced hallucinations as well as memory problems, such are not shown to be so severe as to cause the Veteran occupational or social impairment to a degree where he could not maintain his employment as a security guard and/or maintain the relationships with his girlfriend and family. The Board acknowledges that the symptoms contained in the General Rating Formula for Mental Disorders are not exhaustive, but serve as examples of the type and degree of symptoms or effects that would justify a particular rating. Mauerhan, 16 Vet. App. at 442. Additionally, the Board has not required the presence of a specified quantity of symptoms to warrant a higher rating for a mental disorder. However, the Board finds that the type and degree of symptoms associated with the Veteran's service-connected PTSD have not resulted in total occupational and social impairment justifying a rating of 100 percent. Overall, the Veteran has demonstrated symptoms consistent with the 70 percent rating. Accordingly, based on all of the evidence documented above, the Board finds that the Veteran's service-connected PTSD warrants no more than an initial 70 percent rating for the period prior to June 20, 2019. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Service Connection The Veteran claims entitlement to service connection for bilateral hearing loss. During his August 2019 hearing, the Veteran stated that he was exposed to hazardous noise as a result of his duties in a field artillery unit in the Army, that he started to experience hearing problems in service, and that his hearing problems have continued since service. See August 2019 Hearing Transcript, pp. 23-26. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition to the general elements for service connection, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). As noted above, the Veteran attributes his hearing loss to in-service noise exposure as a result of his duties in a field artillery unit. Initially, the Board notes that the Veteran's bilateral hearing loss meets VA's definition of a hearing loss disability under 38 C.F.R. § 3.385. In this regard, a February 2020 VA examination revealed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 50 45 50 LEFT 45 45 55 70 70 Speech audiometry revealed speech recognition ability of 78 percent in the right ear, and 80 percent in the left ear. Thus, the Board finds that the Veteran has a present bilateral hearing loss disability for VA purposes. Concerning in-service noise exposure, the Veteran is competent to report his in-service noise exposure. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2). Moreover, given that his DD Form 214 confirms that his military occupational specialty was as field artillery specialist, the Board finds that his reports of in-service noise exposure are credible and consistent with the type and circumstances of his military service. 38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran's service). Accordingly, the Board finds that his assertions concerning his in-service noise exposure are competent and credible lay evidence of such. Therefore, the remaining inquiry is whether there is nexus, or link, between the Veteran's bilateral hearing loss and his in-service noise exposure. Initially, the Board notes that a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 was not demonstrated during service. His September 1970 discharge audiogram revealed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 0 A July 2012 VA audiology consultation noted that the Veteran's air conduction thresholds were within normal limits from 250 Hertz to 8000 Hertz. As noted in the introduction, the Board previously attempted to obtain the precise results of the July 2012 audiogram; however, despite its efforts, the AOJ received noticed in June 2021 that the audiogram results were not available. In connection with his claim, the Veteran underwent a VA examination in February 2020. Upon review of the evidence of record, including his service treatment records and his lay statements concerning his in-service noise exposure, the examiner opined that it was less likely as not that his bilateral hearing loss disability was related to his in-service noise exposure. The examiner noted that there was no significant permanent shift in his hearing thresholds beyond test variability from entrance to separation. Furthermore, the examiner noted that the Veteran did not complain of, or receive treatment for hearing loss during service. The examiner then noted that, although noise exposure had been conceded, auditory damage was not demonstrated. The examiner continued that there must be a nexus of auditory damage to relate the current hearing loss to his military service. Thus, the examiner concluded that, it was less likely as not that the Veteran's bilateral hearing loss was related to his in-service noise exposure. Based on the above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The February 2020 VA opinion is the only probative evidence of record, as it reflects consideration of the Veteran's history, to include his in-service noise exposure. Moreover, it makes clear the basis for the opinionnamely, that auditory damage, not just noise exposure, causes hearing loss, and that the Veteran's in-service test results show no auditory damage. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran has had ample opportunity to submit medical evidence in favor of his claim, and against the findings of the February 2020 VA examiner, but he has not done so. The Board acknowledges the Veteran's contention that his bilateral hearing loss is related to his military service, to include his in-service noise exposure. While he is competent to report his in-service noise exposure, he is not competent to opine on complex medical questions such as the etiology of his current bilateral hearing loss. Specifically, where the determinative issue is one of medical causation as presented here, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The question of causation of hearing loss involves a medical subject of an internal physical process extending beyond the immediate observable cause-and-effect relationship. As such, the determination of the etiology of his bilateral hearing loss requires a specialized understanding of the medical nature and pathology of the diagnosis, which he has not been shown to have. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Veteran's lay statements are not considered competent on that issue. The Board adds that there is no evidence of record to suggest that the Veteran's bilateral hearing loss disability manifested to a degree of 10 percent within one year of separation from service. To the extent that he claims bilateral hearing loss began during service, such is not the case. In fact, as noted above, his hearing acuity was assessed as normal at discharge. Accordingly, service connection on a presumptive basis for a chronic disease is also not warranted. To the extent the Veteran asserts he noticed hearing loss during and since service, the Board finds such recollections to be not credible, as he specifically denied experiencing ear trouble, running ears, and hearing loss during service on his May 13, 1970, June 16, 1970 and September 15, 1970 Reports of Medical History, and his hearing test upon discharge was pertinently normal. In addition, a July 18, 2012 VA Audiology Consult notes that the Veteran, at the time, sought an audiological evaluation for his commercial driver's license, and that his air conduction scores were within normal limits form 250 to 8000 Hz, bilaterally. The Veteran did not report a history of hearing loss at that assessment, nor were complaints of hearing loss noted in treatment records on file that pre-date the July 2012 Consult. These normal test results, both in service and after, coupled with the Veteran's denial of hearing loss symptoms in service, and failure to report a history of the same at his audiological test in 2012 weigh against a finding that hearing loss was present since service, and cuts against the credibility of the Veteran's recollections to the contrary. (Continued on Next Page) In conclusion, the Board finds that the claim for service connection for bilateral hearing loss must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as no competent and probative evidence supports the required elements of his claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.