Citation Nr: A21020447 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200918-110220 DATE: December 22, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for other specified trauma and stressor related disorder is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) (claimed as GERD/acid reflux) is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's psychiatric symptoms have resulted in occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 30 percent for other specified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1953 to October 1956. The Board notes that the July 2020 rating decision on appeal was issued after February 19, 2019, so was subject to the Appeals Modernization Act (2019) (herein after "AMA"). 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran timely appealed this rating decision to the Board and, in a September 2020 Decision Review Request, requested a hearing before a Veterans Law Judge followed by review of the evidence considered by the Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a July 2021 hearing before the Board of Veterans' Appeals (Board). In his September 2020 VA Form 10182 and July 2021 Board hearing, the Veteran reported that he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. As such, a claim for a TDIU has been raised and is considered on appeal. 1. Entitlement to a disability rating in excess of 30 percent for other specified trauma and stressor related disorder The Veteran asserts that his service-connected psychiatric disability is more severe than is reflected by his current evaluation. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For increased rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating to determine whether and when an ascertainable increase has occurred. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Id. at 509-10. Where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. The Veteran's disability is rated under the General Rating Formula for mental disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is assigned when the evidence shows 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when the evidence shows 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. Id. Higher disability ratings are available for more severe symptoms. In this case, the Veteran filed a claim for service connection in January 2020. His VA treatment records reflect treatment for mental health problems but are negative for evidence of symptoms consistent with a higher disability rating. For example, in November 2019, the Veteran was screened for depression and scored a zero. His VA treatment records are negative for evidence of suicidal or homicidal ideation, hallucinations or delusions, or other moderate to severe symptoms. In a February 2020 statement in support of his claim, the Veteran asserted that in 2010 he began experiencing nightmares and sleep problems on a daily basis. In a May 2020 statement in support of his claim, the Veteran asserted that he was depressed, self-medicated by drinking, and experienced chronic nightmares. During the Veteran's July 2020 VA mental health examination, the VA examiner found that his psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms, consistent with a 10 percent disability rating. His symptoms included depression, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment and difficulty in adapting to stressful circumstances. During the Veteran's July 2021 Board hearing, he testified that his mental health had deteriorated since the VA examination. He stated that he did not have problems being around people, working, or concentrating, but he had begun urinating while asleep, and he continued to experience chronic nightmares. Self-medication with alcohol was still present as well. He also attributed his marital problems to his psychiatric disability symptoms. While the Veteran is competent to observe his psychiatric disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his psychiatric disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board concludes that the preponderance of the evidence is against finding that the Veteran's disability has resulted in occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent rating. He is negative for most or all the symptoms contemplated by the criteria for a 50 percent rating, such as flattened affect, panic attacks more than once a week, impairment or short or long-term memory, or impaired judgment. While the Veteran has asserted that his disability causes him to self-medicate with alcohol and leaves him depressed, the medical evidence of record does not indicate that his symptoms are generally more than mild in severity. Based on these facts, the Board finds that the preponderance of the evidence is against his claim, and a 30 percent initial rating remains warranted. Accordingly, the claim for an increased rating is denied. In reaching the above conclusions, 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 in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, other than those discussed below, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. The Veteran has a current diagnosis for GERD. See January 2020 VA treatment records. He asserts that his GERD arose during or as a result of his active service. See January 2020 claim. These facts were before the Regional Office (RO) prior to the July 2020 rating decision, but the RO did not afford him a VA examination to determine the nature and etiology of his claimed condition. Additionally, during his July 2021 Board hearing, the Veteran testified under oath that he experienced GERD symptoms during service but did not seek medical treatment for the condition because he was embarrassed by the symptoms. Under the AMA, a REMAND is permissible only to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802. The evidence of record is sufficient to require a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The pre-decisional error requires REMAND, and the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed GERD disability. 2. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. The Veteran asserts that his service-connected hearing loss is more severe than is reflected by his current noncompensable evaluation. During the Veteran's most recent VA examination for hearing loss, conducted in February 2020, the VA examiner was unable to provide specific audiometric test scores due to a lack of agreement between tested Pure Tone Averages (PTA) and Speech Reception Thresholds (SRT). Despite this lack of specific findings, the RO did not attempt to schedule the Veteran for another VA examination and used the February 2020 VA examination's findings as the basis for a denying the Veteran's claim. Under the AMA, a REMAND is permissible only to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802. The Board finds that the RO committed a pre-decisional duty-to-assist error by failing to provide a VA examination that fully assessed the current severity of the Veteran's condition. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, this claim is remanded so that the Veteran can be afforded another VA examination. In issuing this remand, the Board observes the duty to assist a veteran in developing evidence is not always a "one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). When called upon to participate in an examination, it is incumbent upon the claimant to fully cooperate. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. Entitlement to TDIU is remanded. The Veteran asserts that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. These include his hearing loss disability, and that disability is being addressed again on examination on remand. The Board cannot decide the TDIU claim until hearing findings are clarified, and more information is provided as to the effect of hearing loss on occupational functioning. As noted above, the lack of adequate hearing loss findings represents a pre-decisional duty to assist error that must be corrected on remand. The matters are REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter regarding the TDIU claim and request that he provide information regarding all recent and relevant treatment pertaining to his service-connected disabilities. He should be encouraged to submit any additional relevant evidence in support of his assertion that his service-connected psychiatric, hearing loss, and tinnitus disabilities prevent him from securing and following substantially gainful employment. 2. Schedule the Veteran for a VA examination by an appropriate examiner as to the etiology of his diagnosed GERD. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should first identify whether the Veteran has GERD or any related condition. For each identified digestive disability, the examiner should indicate whether it is at least as likely as not (a 50 percent or greater probability) that such disability had its onset during service or is otherwise related to service. The examiner must provide a rationale for the opinions given. The VA examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the VA examiner rejects these reports of symptomatology, he or she must provide a reason for doing so. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 3. Schedule the Veteran for a new VA audiological examination by an appropriate examiner to assess the current severity of his bilateral hearing loss disability. The VA examiner must measure and supply pure tone threshold scores bilaterally. In addition, the VA examiner must supply speech discrimination scores, using the Maryland CNC. Detailed information is requested on the functional effects of hearing loss, including on occupational functioning. Again, the Veteran is reminded that the duty to assist is not a one-way street. When called upon to participate in an examination, it is incumbent upon the claimant to fully cooperate. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.