Citation Nr: 21074603 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-45 790 DATE: December 15, 2021 ORDER Entitlement to a compensable disability rating for left ear hearing loss is denied. Entitlement to a disability rating in excess of 50 percent prior to May 27, 2021, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a disability rating of 100 percent from May 27, 2021, for PTSD is granted. FINDINGS OF FACT 1. Throughout the period of appeal, the Veteran's left ear hearing loss manifested in no worse than Level V hearing impairment. 2. Prior to May 27, 2021, the Veteran's PTSD was manifested by symptoms that more closely approximated occupational and social impairment with reduced reliability and productivity. 3. From May 27, 2021, the Veteran's PTSD was manifested by symptoms that more closely approximated total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 1160, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.1-4.16, 4.85, Diagnostic Code (DC) 6100. 2. Prior to May 27, 2021, the criteria for entitlement to a rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.125, 4.130, Diagnostic Code 9411. 3. From May 27, 2021, the criteria for entitlement to a rating of 100 percent for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.125, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1948 to September 1954. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Oakland, California. In a May 2021 hearing, the Veteran testified his PTSD symptoms and hearing loss had gotten worse. In a July 2021 decision, the Board remand the claims for PTSD and left ear hearing loss for new VA examinations. The RO issued an October 2021 rating decision granting a rating of 100 percent effective August 12, 2021 for PTSD and an October 2021 supplemental statement of case (SSOC) denying a compensable rating for left ear hearing loss or a rating in excess of 50 percent prior to August 12, 2021. The case was then returned to the Board. This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.902(c). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking wok. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a compensable rating for left ear hearing loss To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes 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. 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 38 C.F.R. § 4.85 provides Table VI to determine a Roman numeral designation (I through XI) for hearing impairment for each ear based on puretone thresholds and Maryland CNC testing. Table VII is then utilized to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. The "puretone threshold average" as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. Where there are one of two exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. The first is where the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second is where the puretone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. 38 C.F.R. § 4.86(b). When the evidence fails to show an exceptional pattern of hearing impairment is present, then Table VI will be used to assign a Roman numeral designation. In describing the evidence, the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383. Compensation is payable for the combinations of certain service-connected and nonservice-connected disabilities as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.383. For hearing impairment, one ear must be compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability must meet the provisions of 38 U.S.C. § 3.385 in the other ear. 38 C.F.R. § 3.383(a)(3). Stated another way, if a veteran has hearing loss in the service-connected ear that is independently ratable as at least 10 percent disabling, then the hearing loss of the nonservice-connected ear can be considered for compensation. See 69 Fed. Reg. 48,148, 48,149 (Aug. 9, 2004). An August 2017 VA examination indicated puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 30 45 60 65 50 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 0 percent in the right ear and of 84 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85, Table VI and Table VII, the Veteran's left ear hearing loss is assigned a numeric designation of II. In accordance with 38 C.F.R. § 3.383, his nonservice-connected right ear is assigned a numeric designation of I. According to Table VII, a numeric designation of II and I indicate that the Veteran does not meet the criteria for a compensable rating for his left ear hearing loss. An October 2021 VA examination indicated puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 35 55 60 70 55 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 0 percent in the right ear and of 68 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85, Table VI and Table VII, the Veteran's left ear hearing loss is assigned a numeric designation of V. In accordance with 38 C.F.R. § 3.383, his nonservice-connected right ear is assigned a numeric designation of I. According to Table VII, a numeric designation of V and I indicate that the Veteran does not meet the criteria for a compensable rating for his left ear hearing loss. Therefore, the claim for a compensable rating for his service-connected left ear hearing loss is not warranted under Table VII. See 38 C.F.R. § 4.85, DC 6100. The Board considered whether the Veteran's left ear hearing loss could be rated as bilateral hearing loss pursuant to 38 C.F.R. § 3.383(a)(3). However, because the Veteran's left ear hearing loss is independently ratable as at least 10 percent disabling, § 3.383 is not applicable. For the foregoing reasons, the preponderance of the evidence is against the claim for a compensable rating for left ear hearing loss. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 50 percent prior to August 21, 2021 As discussed above, the Veteran is presently in receipt of a 50 percent rating for PTSD prior to August 21, 2021. For the reasons that follow, the Board finds that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity prior to May 27, 2021, and total occupational and social impairment thereafter. The Board grants the appeal as of May 27, 2021. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). 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" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). The Veteran's service-connected PTSD has been evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 throughout the appeal period. Under DC 9411, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. The highest rating of 100 percent is warranted where there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. a) Prior to May 27, 2021 The Veteran contends in his September 2017 notice of disagreement that he is entitled to a higher rating for PTSD. During a July 2015 medical appointment, the Veteran reported he was content with life, drove, walked, traveled, and denied depression or anxiety. See April 2018 VA Medical Treatment Records. During an April 2016 medical appointment, the Veteran reported he was content with his health and denied depression or anxiety. Id. He stated he walked for exercise and helped his daughter with estate sales. Id. During a December 2016 medical appointment, he reported occasional panic attacks due to situational stress, but denied depression. Id. During an August 2017 VA examination, the Veteran reported nightmares, flashbacks, and intrusive thoughts. The examiner opined that the Veteran's symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included depressed mood, anxiety, and panic attacks that occurred weekly or less, chronic sleep impairment and mild memory loss. Id. A July 2019 psychological counseling note indicated the Veteran had a negative depression screen. See August 2019 VA Medical Treatment Records. In August 2019, the Veteran requested a medical appointment to discuss increasing anxiety and stated he needed an evaluation for his claim. See October 2019 VA Medical Treatment Records. The Board finds that prior to May 27, 2021 the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood. The Veteran reported symptoms of depressed mood, anxiety, and panic attacks that occurred weekly or less, chronic sleep impairment and mild memory loss. See August 2017 VA Examination. However, he also denied depression and anxiety, reported being content with his health and life, traveling, and helping his daughter with her business. See April 2018 VA Medical Treatment Records. Therefore, while the Board acknowledges the Veteran's symptoms caused some social impairment, the record in total reflects his symptoms are not productive of occupational and social impairment with deficiencies in most areas. A rating in excess of 50 percent for PTSD is not warranted. 38 C.F.R. § 4.130. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 50 percent for PTSD. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. b) From May 27, 2021 During his May 2021 hearing, the Veteran testified that his PTSD symptoms had increased in severity including panic attacks, depression and impulse control. He stated that sometimes he can't function. In an October 2021 rating decision, the RO granted a rating of 100 percent for PTSD, effective August 12, 2021, the date of his VA examination for PTSD. The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose if factually ascertainable, whichever is earlier so long as the application is received within one year from such date. See 38 U.S.C. § 5110 (a); see also 38 C.F.R. § 3.400 (o)(1); Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). Accordingly, in order to determine the appropriate effective date to be assigned, the Board must determine (1) the date the claim for an increased rating was received by VA and (2) the earliest date that it is factually ascertainable that an increase in disability had occurred. See Swain, 27 Vet. App. at 224. As stated above, the Veteran testified during his May 2021 hearing that his PTSD symptoms had worsened. Based on the evidence of record, it is not factually ascertainable when the Veteran's increase in his disability occurred prior to his May 27, 2021 testimony. Swain, at 224. The RO granted a rating increase effective August 12, 2021, the date of the VA examination, however the Board finds that his testimony regarding his panic attacks, depression and impulse control is the first time it is factually ascertainable an increase in his disability occurred. Therefore, the effective date for the Veteran's award of increase in compensation must be May 27, 2021. A rating of 100 percent for Veteran's PTSD is warranted effective May 27, 2021. 38 C.F.R. § 4.130. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.