Citation Nr: 21077643 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 03-12 237 DATE: December 30, 2021 ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) for the period prior to November 20, 2007. 2. Entitlement to service connection for loss of fingernails due to diabetes mellitus, type II. 3. Entitlement to service connection for bilateral hearing loss. ORDER Entitlement to an increased initial evaluation of 100 percent for service-connected posttraumatic stress disorder (PTSD) for the period prior to November 20, 2007 is granted. REMANDED Entitlement to service connection for loss of fingernails due to diabetes mellitus, type II is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, for the entire period on appeal, the Veteran's PTSD has been manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 100 percent for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1956 to June 1960 and from July 1960 to September 1975. He died in September 2010. The appellant is his surviving spouse. The Board notes that in a December 2020 correspondence the appellant was informed that she was determined to meet the basic eligibility for substitution as the Veteran's spouse. This matter was previously remanded by the Board in December 2020. The Board finds that there has been substantial compliance with its remand directives and proceeds to decide the issue of entitlement to an increased rating for PTSD as discussed below. See Stegall v. West, 11 Vet. App. at 270-71 (1998). Since the Board's December 2020 remand, the AOJ has granted an increased rating of 100 percent for PTSD from November 20, 2007, forward. The 100 percent rating represents a full grant of the benefits sought; and therefore, the appeal was granted in full as of November 20, 2007. As the period on appeal includes the period prior to November 20, 2007 (for which the Veteran was assigned a 50 percent disability rating for his PTSD), the Board has rephrased the issue on appeal as entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) for the period prior to November 20, 2007, as reflected on the first page of this decision. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board.to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to an increased initial evaluation of 100 percent for service-connected posttraumatic stress disorder (PTSD) for the period prior to November 20, 2007 is granted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. The General Rating Formula for Mental Disorders provides a 50 percent rating for 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 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria for a 70 percent rating are 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); and inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. Id. Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit) has explained, 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (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." See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall 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. See 38 C.F.R. § 4.126 (a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. In this case, the Veteran underwent an evaluation in October 2003. The Veteran was noted to be neat in appearance but anxious in his manner and demonstrated a retarded pace in his speech. The Veteran was oriented as to time, place, and person, but his memory function was impaired. His intelligence was noted to be average, and his judgment was good. His affect was flat, blunted, and his motor activity was agitated, restless. The Veteran reported to experience delusions but no hallucinations. The Veteran experienced disorganized thinking and symptoms of depression, to include poor appetite, sleep disturbances, change in sex drive, low energy level, and recent losses in general healthy and ability to perform. The Veteran reported experiencing suicidal thoughts but no homicidal thoughts. In July 2004 the Veteran underwent a VA examination. The examiner noted a diagnosis of PTSD and the Veteran reported symptoms that include avoiding crowds, depression, and anxiety. The Veteran reported being able to maintain self-care with the assistance of his wife. The examiner found that the Veteran did not have impairment of thought process or communication, and the Veteran denied delusions or hallucinations. Although the Veteran had good eye contact, he was tearful when talking about the trauma he experienced in service. The Veteran was oriented in time, person, and place and the examiner did not see evidence of memory loss. The Veteran was noted to have latency in his speech. The Veteran reported depressive symptoms, such as crying spells and lack of interest, energy, and concentration with depressed mood more days than not. The Veteran also noted sleep impairment in which he sleeps only a few hours per night and experiences nightmares. He reported hyperarousal and avoidance symptoms and noted that he gets startled easily. He explained that he had been re-experiencing trauma and avoids activities or events that remind him of the trauma. He experiences significant nightmares and flashbacks of trauma and noted that he keeps to himself and hardly goes out. The Veteran was afforded another VA examination in August 2005. The Veteran reported that he gets frustrated, emotional, and loses his temper. The Veteran explained that he tries to avoid social interactions. The Veteran reported problems with sleep due to nightmares that wake him up throughout the night. The Veteran and his wife explained that they avoid war movies and war news. The examiner noted that his PTSD is likely exacerbated by his growing impairment of his neurological functioning. The examiner did not find any impairment of thought process or communication, and the Veteran denied delusions or hallucinations. He had good eye contact but again got tearful when talking about the trauma from service. The Veteran denied suicidal or homicidal thoughts or plans. The examiner again noted latency in his speech. A February 2006 VA treatment note reports that the Veteran was both depressed and anxious. He reported his mood was low and health was poor with poor memory. He reported his long-term goal was to improve his quality of life with stable mental status and optimal level of functioning. The Veteran was observed to have increased latency of response in speech, his affect was depressed, his judgment was impulsive and impaired, and his memory was poor. He was not found to be a danger to himself or others. A February 2006 VA treatment record also indicates that the Veteran recently walked in front of traffic and wanders. The Veteran was reported to be anxious with poor sleep. An August 2007 VA memo from treating mental health nurse practitioner, F.M.D., states that his physical problems have exacerbated his mental health issues, that his conditions are deteriorating, and that he is unemployable. Given the medical and lay evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial disability rating of 100 percent is warranted for the Veteran's PTSD for the entire period on appeal. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.130, DC 9411; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While some of the symptoms experienced by the Veteran approximate those listed in the 70 percent criteria, the Board finds that, overall, his symptoms, to include impairment in communication, suicidal ideation, intermittent inability to perform activities of daily living, chronic sleep impairment, memory issues, disorientation, anxiety, avoidance behavior, and flashbacks are of similar duration, frequency, and severity as those described for the 100 percent rating under total social and occupational impairment. Accordingly, a disability rating of 100 percent for the Veteran's service-connected PTSD for the period prior to November 20, 2007 is granted. REASONS FOR REMAND 1. Entitlement to service connection for loss of fingernails due to diabetes mellitus, type II is remanded. The appellant asserts that the Veteran suffered from loss of fingernails as a result of his diabetes mellitus, type II. VA treatment records indicate some thickening of the Veteran's nails, discoloration, and a previous possible infection with fungus. See August 2001, June 1999, June 2010, April 2010 VA treatment records. It is unclear if the Veteran suffered from loss of fingernails during the period on appeal. The Board notes that the Veteran was not afforded a VA examination of nails and that no opinion has been furnished regarding this appeal. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. In this case, the Veteran was service connected for diabetes mellitus, type II, the appellant asserts loss of fingernails due to diabetes mellitus, type II, and there is some indication of nail abnormalities during the pendency of the appeal. Therefore, the remaining issue is whether there is a nexus between the Veteran's fingernail disability(ies) and his service-connected disability. As there is evidence of in-service occurrence (exposure to Agent Orange), a service-connected disability, a current disability, and a potential link between the Veteran's service and current disability, examination is required. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 79. Thus, the Board remands this matter for a VA medical opinion to determine the nature and etiology of the Veteran's fingernail disability. See McLendon, 20 Vet. App. at 81; Colvin, 1 Vet. App. 171 (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran claimed that he developed hearing loss and tinnitus as a result of noise exposure during his military service. The record indicates noise exposure while serving onboard aircraft carriers. The Veteran reported being assigned to the gunline and also being assigned to count aircrafts going in and out of airstrikes. The Veteran reported being onboard ship when torpedoes were fired. See April 2010 Correspondence; see April 2005 Statement in Support of Claim. Moreover, the Veteran reported that his hearing loss is the result of being on deck and sending a signal message when the 5-inch gun was fired. The Veteran reported going to sick bay and being treated for a busted ear drum and being told he would be "all right." The Veteran asserted that his problems with hearing continued and even worsened. See June 2004 Statement in Support of Claim. The Veteran's DD-214 indicates that the Veteran served as a signalman. As the Veteran's prior assertions as to noise exposure in service are consistent with his assigned MOS in service, the Board finds that the Veteran is a reliable historian as to his experienced acoustic trauma in service and concedes acoustic trauma in service. Post-service, a July 2001 VA treatment record indicates right ear hearing loss and vertigo. A July 2003 VA treatment record indicates "no residual hearing AD since a stroke about 2 years ago," with "mild, high-frequency loss AS." He reported episodes of decreased hearing and aphasia that were assumed to be caused by "TIAs." The Veteran's wife reported that during these times he sets the TV uncomfortably loud, but he reported no significant problems hearing except during these episodes." The July 2003 treatment record noted that the audiology staff and examiner believed that "hearing aid use is not recommended due to the lack of routine difficulty hearing and the probability that the episodes of poor hearing are most likely central in nature. Otoscopy was unremarkable, AU." The VA treatment record continued to explain that a brief trial of "Mega Ear" personal amplifying system was successful. A May 2003 VA treatment record indicates that "about 2 months ago, he experienced an episode of decreased hearing and worsened aphasia that lasted 48 hours." The Veteran reported having experienced two similar but shorter episodes since then. In addition, he reported that "hearing at the left ear seems to fluctuate during the day." The treatment record reports, "He reported the presence of constant tinnitus at the right ear since the hearing 'went out.' He denied ear discomfort or drainage. Otoscopy was unremarkable, AU." The treatment record goes on to recognize that "There is significant history of military noise exposure including a boiler room explosion and bleeding from one ear when a 5"-54 gun fired near him. There was minimal civilian noise exposure from some shooting in distant past." The May 2003 treatment record includes audiometric test results, which measured kHz at .25, .5, 1, 2, 3, and 4 in air and bone. In air and bone on the right ear no response was reported at every level. In the left ear, air measured 25, 25, 25, 30, 55, and 60 respectively, and in bone measured 15, 20, 20, 30, 55, and 60 respectively. Speech audiometry is reported with SRT measuring 95+ dB HL in the right ear and 30 dB HL in the left ear, and word recognition reported as "could not test" in the right ear and 84 percent at 70 dB HL, 88 percent at 90 dB HL in the left ear. "Tympanometry was normal, contralateral and ipsilateral acoustic reflexes were present at levels consistent with tones when stimulus was at the left ear. Acoustic reflexes were absent stimulus right. Acoustic reflex decay was negative for retrocochlear involvement, for right contralateral stimulation." Based on the May 2003 VA audiogram noted above, the Board finds that the Veteran had bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385 during the pendency of the appeal. VA treatment records indicate decreased hearing in the right ear. See, e.g., August 2005 and January 2006 VA treatment records. A July 2001 private treatment record indicates "a right inner ear problem that has resulted in vertigo that has resolved and permanent hearing loss in that ear." The Board notes that the Veteran was not afforded a VA examination of his bilateral hearing loss and that no opinion has been furnished regarding this appeal. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. In this case, the Veteran has conceded in-service noise exposure, service-connected aphasia, and evidence indicating hearing loss, to include episodes of hearing loss. Therefore, the remaining issue is whether there is a nexus between the Veteran's hearing loss disability and his service and/or service-connected disability. As there is evidence of in-service occurrence, a current disability, and a potential link between the two, examination is required. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 79. Thus, the Board remands this matter for a VA medical opinion to determine the nature and etiology of the Veteran's fingernail disability. See McLendon, 20 Vet. App. at 81; Colvin, 1 Vet. App. 171 (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. For all outstanding private treatment records, ask the appellant to identify any relevant private treatment records and request that the appellant submit or authorize for release such private treatment records. If no records are available, a negative response should be associated with the claims file. The appellant and her representative are to be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The appellant should also be offered the option to provide any such record herself. 2. Contact the appellant and notify her that she is welcome and encouraged to provide any medical evidence and lay statements related to the claim, to include any evidence and/or statements regarding the Veteran's loss of fingernails and the Veteran's bilateral hearing loss. 3. Thereafter, provide the electronic claims file to an appropriate medical professional to provide an opinion as to the nature and etiology of the claimed Veteran's fingernail disability. After review of the claims folder and all the medical and lay evidence therein, the examiner should opine as to the following: (a) The examiner should identify if the Veteran had a fingernail disability(ies) during the pendency of the Veteran's claim, even if such became asymptomatic or resolved during the pendency of the appeal. The examiner should review the entire claims file but is directed to August 2001, June 1999, June 2010, April 2010 VA treatment records that indicate some thickening of the Veteran's nails, discoloration, and a previous possible infection with fungus. If a diagnosis cannot be provided but the Veteran's condition manifested in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b) For each disability noted in (a.), is it at least as likely as not (50 percent probability or greater) that the Veteran's fingernail disability was incurred in or was otherwise related to the Veteran's service, to include as due to exposure to herbicide agents such as Agent Orange? This opinion should focus on whether, in this Veteran's particular case, there was a relationship between conceded exposure to herbicide agents and this Veteran's development of a fingernail disability. It is understood that such disability is not on the list of diseases considered presumptively caused by exposure to herbicides. This opinion seeks a discussion as to direct causation. (c) For each disability noted in (a.), is it at least as likely as not that the Veteran's fingernail disability was proximately due to, or caused by, his service-connected diabetes mellitus, type II? (d) For each disability noted in (a.), is it at least as likely as not that the Veteran's fingernail disability was aggravated by the Veteran's service-connected diabetes mellitus, type II? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. After completing directive 1-2 above, provide the electronic claims file to an appropriate medical professional to provide an opinion as to the nature and etiology of the claimed Veteran's bilateral hearing loss disability. After review of the claims folder and all the medical and lay evidence therein, the examiner should opine as to the following: (a) Is it at least as likely as not (a 50 percent or better probability) that a bilateral hearing loss disability was incurred in or otherwise related to the Veteran's military service, to include the conceded noise exposure onboard ship? The examiner is reminded that a disability is one that existed during the pendency of the claim, even if such became asymptomatic or resolved during the pendency of the appeal. The examiner is reminded that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). (b) Is it at least as likely as not that the Veteran's bilateral hearing loss disability was proximately due to, or caused by, a service-connected disability, to include any related aphasia? The examiner is directed to the July 2003 and May 2003 VA treatment records noting decreased hearing during and due to aphasia. (c) Is it at least as likely as not that the Veteran's bilateral hearing loss disability was aggravated by the Veteran's service-connected disability, to include any related aphasia? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The examiner is directed to the July 2003 and May 2003 VA treatment records noting decreased hearing during and due to aphasia. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the appellant and her representative opportunity to respond, and return the record to the Board. L. Baskerville Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.