Citation Nr: 21006774 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-22 131 DATE: February 5, 2021 ORDER Entitlement to a compensable evaluation for a bilateral hearing loss disability is denied. Entitlement to an increased evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with depression is denied. FINDINGS OF FACT 1. At most, the Veteran’s bilateral hearing loss disability has been manifested by a Level II hearing loss in the right ear and a Level IV hearing loss in the left ear. 2. The Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas such as work and family relations, with symptoms including near-continuous depression; recurring suicidal ideations without plan; difficulty interacting with people and maintaining relations; and by anxiety, flashbacks, isolation, hypervigilance, and startled response. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (Code) 6100 (2020). 2. For the entire appeal period, the criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1962 to January 1965. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The case was remanded by the Board in February 2019 for further development. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased evaluation, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). 1. Entitlement to a compensable evaluation for a bilateral hearing loss disability. The Veteran contends that he is entitled to a higher evaluation for his bilateral hearing loss disability. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the Veteran’s average puretone thresholds. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). In addition to dictating objective test results, a VA examination must provide the functional effects caused by a hearing disability. However, even if an examiner’s description of the functional effects of a Veteran’s hearing disability was somehow defective, the Veteran bears the burden of proving any prejudice caused by a deficiency in the examination. Martinak v. Nicholson, 21 Vet. App. 447 (2007). During the Veteran’s July 2013 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 10 25 60 55 38 LEFT 10 35 55 50 38 Speech audiometry revealed speech recognition ability of 96 percent for the right ear and 100 percent in the left ear. The Veteran reported difficulty understanding speech when in any environment, especially if he was not facing the person that was speaking. See July 2013 VA examination. During the Veteran’s March 2015 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 5 40 60 60 41 LEFT 10 40 55 55 40 Speech audiometry revealed speech recognition ability of 92 percent for the right ear and 92 percent in the left ear. The Veteran denied that the hearing loss impacted his ordinary conditions of daily life, however he did report that the hearing in his left ear fluctuated monthly and the hearing in his right ear would go “completely dead” for one to three days at a time. See March 2015 VA examination. During the Veteran’s October 2020 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 70 65 55 LEFT 35 50 65 65 54 Speech audiometry revealed speech recognition ability of 88 percent for the right ear and 80 percent in the left ear. The Veteran reported that he could hear but could not understand when in a crowded area or when watching television. The VA examiner noted that the Veteran’s hearing declined since his previous two VA examinations. See October 2020 VA examination. Applying the foregoing medical evidence to the rating criteria, the Veteran’s right ear is assigned a Level II designation and the left ear is assigned a Level IV designation under Table VI, at most. These categories correspond with a noncompensable disability rating under Table VII. 38 C.F.R. § 4.85, Code 6100. Moreover, the Veteran’s hearing loss does not meet the criteria for an exceptional pattern of hearing loss in either ear. 38 C.F.R. § 4.86(a)(b) (2020). Accordingly, the Board will not use Table VIA in its analysis. The Board acknowledges that the Veteran has difficulty hearing and wears a hearing aid. See April 2015 VA treatment records. However, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran’s service-connected hearing loss disability has ever warranted a compensable rating during the appeal period. Although the Veteran reported complete hearing loss in his left ear at times, such hearing loss was temporary and infrequent. Thus, the Board must rely on the audiometric results of record. Considering the results of the most recent VA examination, entitlement to a compensable rating for bilateral hearing loss disability must be denied. 2. Entitlement to an increased evaluation in excess of 70 percent for PTSD with depression. The Veteran’s PTSD is currently rated as 70 percent disabling under the General Rating Formula for Mental Disorders (General Formula). A 70 percent evaluation is warranted where there is 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9411. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. The list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, 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 on the basis of social impairment. 38 C.F.R. § 4.126. As relevant to this case, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court’s holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value, and will not discuss them specifically. See also Golden v. Shulkin, 29 Vet, App. 221 (2018). As an initial matter, the appeal period for this issue dates back to May 15, 2012. During a June 2013 VA examination, the Veteran was diagnosed with PTSD. The Veteran reported that he and his wife had a very active social life and several friends, some of whom the Veteran had known since childhood and adolescence. The Veteran also reported that he maintained contact with his siblings and saw his mother occasionally. The Veteran’s occupational and social impairment was found to have occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although the Veteran had satisfactory functioning with routine behavior, self-care, and conversation generally. See June 2013 VA examination. His symptoms included depressed moods, anxiety, and weekly panic attacks. Id. In December 2014, the Veteran’s symptoms included little interest in doing things, feeling down, a poor appetite, feeling bad about himself, and trouble concentrating. See VA treatment records. He also reported having sleep trouble, waking up every night between 1:00 and 2:00 am and struggling to get back to sleep afterwards. He attributes this to reoccurring dreams of the in-service accident that caused his PTSD. Id. At the time of the 2014 VA consultation, the Veteran reported that he had worked 60-70 hours per week for most of his career. While caring for his wife, the Veteran was working 50 hours per week as a mechanical engineer. The Veteran’s wife had cancer at the time, and the Veteran expressed that being the sole caregiver for her was difficult. The Veteran denied any suicidal or homicidal ideation or intent. See VA treatment records. During an April 2015 VA examination, the Veteran reported that he had good relationships with his two adult daughters and his grandsons. Outside of his familial relationships, the Veteran expressed that he would experience panic attacks at work three to four times a week. The Veteran’s symptoms at the time were depressed moods, anxiety, chronic sleep impairment, impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See April 2015 VA examination. The Veteran also complained of anxiety episodes that left him emotionally exhausted, in addition to the ongoing sleeping problems and recurrent intrusive memories of the aircraft incident. The VA examiner found that the Veteran’s occupational and social impairment reduced his reliability and productivity, as these symptoms appeared somewhat worse than on the Veteran’s previous examination. Id. In June 2015, the Veteran expressed regret to his social worker about having back surgery, reporting that he had been feeling anxious. He reported that there had been issues with other members of his family and that he would have to intervene and help resolve those issues. Apart from being the sole caregiver for his wife, he expressed that all of the responsibility had made him feel more temperamental and angrier. See June 2015 VA treatment records. In May 2016, the Veteran’s wife died. In September 2018, the Veteran reported feeling hopeless to the extent that he was barely able to complete essential tasks at home. He did report of suicide ideations but stated that he would not succumb to them. While coping with his wife’s death, the Veteran continued to work as a mechanical engineering consultant. The Veteran also reported that he had received social support from a church group for men. See September 2018 VA treatment records. The Board notes that in October 2020, the Veteran was diagnosed with Persistent Depressive Disorder, Insomnia Disorder, and Generalized Anxiety Disorder. The VA examiner opined that the symptoms from these new, non-serviced connected diagnoses could be distinguished from the Veteran’s service-connected PTSD. See October 2020 VA PTSD examination. Where a Veteran is diagnosed with multiple mental health disabilities, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology attributed to a non-service-connected disability and a service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the October 2020 examiner also opined that it was not possible to differentiate what portion of the Veteran’s occupational and social impairments were attributable to the four non-service connected disorders. Additionally, the VA examiner explained that each of the non-service connected disorders shared symptoms and each disorder alone could cause the Veteran significant impairments in occupational and social functioning. See October 2020 VA PTSD examination. As such, all identified mental health symptomatology shall be attributed to the service-connected PTSD. During the October 2020 VA PTSD examination, the Veteran reported that his last suicidal thoughts were about four years ago. At the time, the Veteran’s symptoms included depressed moods, anxiety, near-continuous panic, chronic sleep impairment, memory loss, and difficulty in establishing and maintaining effective work and social relationships. The October 2020 examiner concluded that the Veteran continued to show occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the Veteran’s fatigue, sleep problems, struggles with decision-making, destressing feelings, depression, and anxiety all contributed to some level of impairment of his occupational and social functioning. See October 2020 VA PTSD examination. The Board finds that the Veteran’s PTSD manifests in occupational and social impairment with deficiencies in most areas and thus, warrants a 70 percent evaluation. Notably, the Veteran is currently employed as a senior mechanical engineer and expressed that he has a good relationship with his coworkers. See November 2019 VA treatment records. The evidence reflects that the Veteran is generally able to function in a social setting appropriately. For instance, at his August 2018 Board hearing, the Veteran testified that he is a member of a men’s group that has met every week for the last 15 years. Although he reported isolative behavior, it does not appear his symptoms prevented him from socially interacting with other people. The Veteran reported that he has a supportive family and overall good social support. As a result, the evidence does not reflect total occupational and social impairment. CONTINUED ON NEXT PAGE The Board has considered, but not solely relied upon, the symptoms listed in the criteria for total occupational and social impairment. The Veteran’s suicidal ideation does not appear to have risen to the level where he was in a persistent danger of hurting himself, as he testified that he did not have a plan for suicide. Moreover, the record does not reflect any total impairment in the Veteran’s behavior, such as a lack of hygiene, severe memory impairment, disorientation to time or place, or gross impairment in thought processes or communication. As a result, the evidence does not reflect such severe symptoms as to manifest in total occupational and social impairment, and a rating in excess of 70 percent for PTSD must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus K. Jones, 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.