Citation Nr: 21005442 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-20 032 DATE: February 1, 2021 ORDER Entitlement to an initial rating in excess of 50 percent prior to February 3, 2020, and in excess of 70 percent thereafter, for service-connected posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to an initial rating in excess of 10 percent prior to January 23, 2020, and in excess of 40 percent thereafter, for service-connected bilateral hearing loss, is remanded. FINDINGS OF FACT 1. At no point, prior to February 3, 2020, did the frequency, severity, and duration of the Veteran’s PTSD symptomatology more closely approximate occupational and social impairment with deficiencies in most areas. 2. At no point during the period on appeal did the frequency, severity, and duration of the Veteran’s PTSD symptomatology more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW The criteria for an initial rating in excess of 50 percent prior to February 3, 2020, and in excess of 70 percent thereafter, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1966 to August 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in June 2019. As an initial matter, the Board notes that in a September 2020 rating decision, the Veteran’s PTSD was assigned a rating of 70 percent, effective February 3, 2020, and the Veteran’s bilateral hearing loss was assigned a rating of 40 percent, effective January 23, 2020. As these increases do not represent a total grant of benefits sought on appeal, the claims for higher initial ratings remain before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). Entitlement to an initial rating in excess of 50 percent prior to February 3, 2020, and in excess of 70 percent thereafter, for service-connected PTSD, is denied Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where a claimant timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the claimant is entitled to “staged” ratings to compensate them for times since filing the claim when their disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. 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 Board must determine whether unlisted symptoms are similar in frequency, severity, 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). Under the General Formula, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 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 there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood), and the impairment is attributable to 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. A 100 percent rating is assigned when there is total occupational and social impairment due to symptoms such 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. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the list of examples set forth for each rating does provide guidance as to the severity of symptoms contemplated for that rating. Id. Accordingly, while each of the examples needs not be proven in any one case, the symptoms must be analyzed considering those given examples. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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 examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Factual and Procedural Background. In December 2010, the Veteran submitted a claim of entitlement to service connection for, inter alia, PTSD. See December 2010 VA Form 21-526. In a November 2011 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and assigned a 50 percent rating, effective December 22, 2010. Thereafter, in December 2011, the Veteran submitted a Notice of Disagreement (NOD) as to the initial rating assigned. This matter was ultimately perfected and is the matter currently before the Board. In a September 2020 rating decision, the AOJ increased the rating for the Veteran’s service-connected PTSD to 70 percent, effective February 3, 2020. In December 2011 and September 2012, The Veteran asserted that a 75 percent rating was warranted due to a history of three failed marriages, legal issues, 43 years of nightmares, and that he believes he likely will not live more than 15 years. See December 2011 NOD; July 2012 VA Form 9. The Veteran’s VA treatment records indicate that he has consistently presented as alert and oriented, with good hygiene, normal speech, intact memory, and logical thought processes. The Veteran has consistently denied suicidal or homicidal ideation. See Tucson VA Medical Center (VAMC) records, received January 2011, October 2017, and February 2020 in CAPRI. In an August 2011 VA evaluation, the Veteran was diagnosed with PTSD. In this evaluation, the Veteran reported having been married since 1995 and having close relationships with his children, a brother, and one non-familial friend. The Veteran also reported having shot at his wife’s friend six years prior and having been arrested for attempted murder and assault with a deadly weapon, ultimately being found guilty and sentenced to community service. The examiner noted that the Veteran’s symptoms consisted of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of mood and motivation, and impaired impulse control. The examiner also noted that the Veteran had passive suicidal and homicidal ideation, noting that the Veteran has totaled four vehicles and imagines cars hitting him; however, such suicidal and homicidal ideation was noted as being without any plan or intent. Ultimately, the examiner concluded that the Veteran’s PTSD presented with 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. See August 2011 VA Initial PTSD Disability Benefits Questionnaire (DBQ). In a February 2020 VA evaluation, the Veteran reported having relationships with his adult children, though not as good with one of his sons. The Veteran also reported experiencing irritability and anger with verbal aggression and some violence towards objects. Additionally, the Veteran reported that he had been charged with domestic violence two years prior but that charges were ultimately dismissed. The examiner noted that the Veteran’s symptoms consisted of: depressed mood; anxiety; suspiciousness; near continuous panic or depression affecting the ability to function independently; mild memory loss; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. With the exception of the December 2011 NOD and July 2012 VA Form 9, the Veteran has not submitted any lay statements regarding the severity of his PTSD during the period on appeal. Analysis. As an initial matter, the Board notes that the Veteran contends that a rating of at least 70 percent is warranted due to his history of failed marriages, legal issues, and 43 years of nightmares, as well as his life expectancy. See December 2011 NOD; July 2012 VA Form 9. While the Board sympathizes with the reported historical severity of his PTSD, disability ratings are based on current levels of disability, not historical levels or life expectancy. Upon review of the Veteran’s entire history, the Board concludes that the preponderance of the evidence is against a rating in excess of 50 percent prior to February 3, 2020, and in excess of 70 percent thereafter, for the Veteran’s service-connected PTSD. Importantly, as this is an appeal as to the initial rating assigned, the relevant temporal focus is from December 22, 2010, the effective date of the award of service-connection, to present. See 38 C.F.R. § 3.400. The Period Prior to February 3, 2020. The Veteran is currently rated at 50 percent for his PTSD prior to February 3, 2020. As such, to warrant an increased rating, the evidence must show that the Veteran’s symptoms, at the very least, more nearly approximate a rating of 70 percent at some point prior to February 3, 2020. See 38 C.F.R. § 4.7. A s discussed above, a 70 percent rating is assigned when symptoms, such 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 hygiene or appearance; difficulty in adapting to stressful circumstances (including work or a worklike setting); and 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. At no point during the period on appeal, prior to February 3, 2020, has the Veteran reported, nor has the Veteran’s symptomatology been noted as including, symptoms such as: obsessional rituals; illogical, obscure, or irrelevant speech; near-continuous panic or depression; 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. Indeed, the evidence shows that, prior to February 3, 2020, the Veteran’s symptomatology more nearly approximated a 30 percent or 50 percent rating. Specifically, prior to February 3, 2020, the record reveals that the Veteran experienced: depressed mood, anxiety, suspiciousness, and chronic sleep impairment (30 percent), as well as disturbances of mood and motivation (50 percent). See August 2011 VA Initial PTSD DBQ. Additionally, the Veteran has consistently presented as alert and oriented, with good hygiene, normal speech, logical and goal-directed thought processes, intact memory, fair insight and judgment, and no evidence of delusions or feelings of helplessness or hopelessness. See Tucson VAMC records. The Board acknowledges that there is evidence that is potentially suggestive of a 70 percent rating; specifically, suicidal ideation and impaired impulse control. See August 2011 VA Initial PTSD DBQ. With respect to suicidal ideation, the Board acknowledges that the August 2011 examiner noted that though the Veteran does not possess suicidal plan or intent, he has totaled four vehicles and imagines cars hitting him and he does not care. However, the examiner ultimately concluded that the Veteran’s PTSD symptomatology did not include suicidal ideation. Id. Further, the Veteran’s VA treatment records indicate that he has consistently denied suicidal ideation. See Tucson VAMC records. With respect to impaired impulse control, in the August 2011 examination report, the Veteran reported that he had shot at his wife’s friend six years prior, and the examiner noted that his symptoms included impaired impulse control. See August 2011 VA Initial PTSD DBQ. However, the Veteran’s VA treatment records indicate that the shooting occurred in 1990, approximately two decades prior to the period on appeal. See Tucson VAMC records. Moreover, having one or more symptoms within the identified criteria for a higher rating does not automatically trigger the granting of a higher rating; it is the overall disability picture that the Board must consider. See 38 C.F.R. § 4.7. For the reasons above, the Board finds that, prior to February 3, 2020, the Veteran’s PTSD primarily presented with depressed mood, anxiety, suspiciousness, and chronic sleep impairment, as well as disturbances of mood and motivation, which are contemplated by the 50 percent rating currently assigned. The Board further finds that the frequency, severity, and duration of the Veteran’s reported symptoms of suicidal ideation and impaired impulse control do not create an overall disability picture resulting in occupational and social impairment with deficiencies in most areas, as discussed previously. As such, a rating in excess of the 50 percent already assigned is not supported by the evidence of record, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Period Beginning February 3, 2020. The Veteran is currently rated at 70 percent for his PTSD beginning February 3, 2020. As such, to warrant an increased rating, the evidence must show that the Veteran’s symptoms, at the very least, more nearly approximate a rating of 100 percent at some point beginning February 3, 2020. See 38 C.F.R. § 4.7. As discussed above, a 100 percent rating is assigned when there is total occupational and social impairment due to symptoms such 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. At no point since February 3, 2020, has the Veteran reported, nor has the Veteran’s symptomatology been noted as including, symptoms of or such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Specifically, since February 3, 2020, the record reveals that the Veteran has experienced: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss (30 percent); disturbances of mood and motivation, and difficulty establishing and maintaining relationships (50 percent); and difficulty adapting to stressful circumstances, impaired impulse control, suicidal ideation, and near continuous panic or depression (70 percent). See February 2020 VA Review PTSD DBQ. The Board acknowledges that there is evidence that is potentially suggestive of a 100 percent rating; specifically, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). The Veteran did not provide, nor did the February 2020 examiner elicit, any information regarding the frequency, severity, or duration of his inability to perform activities of daily living. See id. However, though the February 2020 examiner noted that the Veteran experiences an intermittent inability to perform activities of daily living, the examiner ultimately concluded that the Veteran’s PTSD symptomatology manifested as occupational and social impairment with occasional decrease in work efficiency (30 percent). Further, the Veteran has consistently presented as alert and oriented, with good hygiene, normal speech, logical and goal-directed thought processes, intact memory, fair insight and judgment, and no evidence of delusions or feelings of helplessness or hopelessness. See Tucson VAMC records; February 2020 VA Review PTSD DBQ. Moreover, as discussed above, having one or more symptoms within the identified criteria for a higher rating does not automatically trigger the granting of a higher rating; it is the overall disability picture that the Board must consider. See 38 C.F.R. § 4.7. For the reasons above, the Board finds that, since February 3, 2020, the Veteran’s PTSD primarily presented with depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of mood and motivation, difficulty establishing and maintaining relationships, difficulty adapting to stressful circumstances, impaired impulse control, suicidal ideation, and near continuous panic or depression, which are all contemplated by the 70 percent rating currently assigned. The Board further finds that the frequency, severity, and duration of the Veteran’s reported intermittent inability to perform activities of daily living do not create an overall disability picture resulting in occupational and social impairment with deficiencies in most areas, as contemplated by a 70 percent rating. As such, a rating in excess of the 70 percent already assigned is not supported by the evidence of record, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent prior to January 23, 2020, and in excess of 40 percent thereafter, for service-connected bilateral hearing loss, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, a remand is necessary as the evidence indicates that there may be relevant VA records not associated with the claims file. The record shows that the Veteran underwent audiological evaluations at Tucson VAMC in December 2013, March 2018, and February 2019. See Tucson VAMC records. Though general summaries of these evaluations are included in the records, no audiograms have been associated with the claims file. Id. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. 38 U.S.C. § 5013A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to allow the AOJ to afford the Veteran with an adequate examination regarding the severity of his service-connected bilateral hearing loss. The Veteran was last afforded a VA examination regarding his bilateral hearing loss in January 2020. See January 2020 VA Hearing Loss and Tinnitus DBQ. However, as discussed above, relevant VA records have not been associated with the claims file. As such, though it is unclear what effect such records would have in determining the current severity of the Veteran’s bilateral hearing loss, the Board finds the January 2020 examination to be inadequate as the examiner was unable to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Therefore, a remand is necessary to provide the Veteran with an adequate examination. See Barr v. Nicholson, 21 Vet. App. 120, 123 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding treatment records, whether VA or private, including the results of audiological evaluations conducted at Tucson VAMC in December 2013, March 2018, and February 2019. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, as well as any additional development warranted by the record, arrange for an examination reassessing the severity of the Veteran’s service-connected bilateral hearing loss disability. All relevant evidence regarding the history of the disability must be made available to the examiner in conjunction with the examination. Pathology, symptoms (frequency, severity, and duration), and all associated impairment of daily and occupational functioning should be described in detail. For each ear, the examiner should: (a.) Conduct appropriate audiometric and speech discrimination testing in conformity with the requirements of 38 C.F.R. § 4.85. (b.) Provide numeric interpretation of any hearing tests/audiograms conducted, setting forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. The examiner is also asked to provide the average pure tone threshold for these four frequencies. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.