Citation Nr: 21008633 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 190612-7632 DATE: February 17, 2021 ORDER A disability rating greater than 10 percent for bilateral hearing loss is denied. An initial disability rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. Pertinent to the appeal period, the Veteran’s hearing loss manifests with, at worst, Level IV hearing loss in both ears. 2. Pertinent to the appeal period, the Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in areas such as work, thinking and mood due to such symptoms as: depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; spatial disorientation; and inability to establish and maintain effective relationships. There have not been more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for an initial 70 percent disability rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1953 to January 1957. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for to seek review of VA decisions. The Veteran’s appeals are subject to this new AMA framework. This appeal to the Board of Veterans’ Appeals (Board) comes from a Department of Veterans Affairs (VA) rating decision that was issued in March 2019. Specifically, the March 2019 rating decision granted service connection for PTSD, assigning a 30 percent disability rating effective November 28, 2018 and reduced the disability rating for the Veteran’s service-connected bilateral hearing loss from 10 to 0 percent. The Veteran timely requested higher level review, and a rating decision was issued in April 2019, affirming the March 2019 decision. The Veteran then filed an appeal to the Board, asking for a hearing with a Veterans Law Judge (VLJ). The Veteran’s personal hearing with a VLJ was held in September 2019, and a transcript is of record. Under the AMA, the record closes on the date of the appealed decision; however, appellants to the Board wishing to have a hearing are permitted to submit additional evidence at the hearing and up to 90 days following the hearing. During the hearing, the Veteran presented additional medical evidence and expressly waived his right for an additional 90 days to submit any more evidence. In a December 2019 decision, the Board restored the previously assigned 10 percent disability rating for the Veteran’s bilateral hearing loss, denied a disability rating higher than 10 percent for the Veteran’s bilateral hearing loss, and granted an initial 50 percent disability rating, but no higher, for the Veteran’s PTSD.  The Veteran appealed the Board’s December 2019 decision to the United States Court of Appeals for Veterans Claims (Court).  In August 2020, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion), in which both parties to the Joint Motion requested that the Court vacate and remand the Board’s December 2019 decision regarding the denial of a disability rating higher than 10 percent for the Veteran’s bilateral hearing loss and the denial of an initial disability rating higher than 50 percent for the Veteran’s PTSD . The December 2019 Board decision restoring a 10 percent disability rating for bilateral hearing loss and granting an initial 50 percent disability rating for PTSD was not disturbed. As a preliminary matter, the Board notes that, in September 2020, after the appeal period in this case, the Veteran submitted a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) claiming that he was unable to secure or follow any substantially gainful employment due to his service-connected PTSD and bilateral hearing loss. This claim was denied in a December 2020 rating decision and the Veteran has not yet perfected an appeal of this issue. A January 2021 informal hearing presentation pertaining to this appeal includes the TDIU issue as currently on appeal, presumably as part and parcel of the increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board declines to take jurisdiction of the TDIU issue at this time as there were no allegations of unemployability due to either bilateral hearing loss or PTSD during the appeal period prior to March 14, 2019. Significantly, a February 2019 VA psychiatric examination report shows that the Veteran was “retired” and during the September 2019 Board hearing the Veteran’s representative noted that the Veteran was not working based on his age and not his disabilities. Also, in connection with the September 2020 claim for a TDIU, additional medical evidence pertinent to his appeal has been obtained by VA, particularly VA audiological and psychiatric examinations dated in December 2020. The Board notes that such evidence will not be considered as the Board gives consideration to only that evidence submitted on the date of the appealed decision. 38 C.F.R. § 20.300. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. A disability rating greater than 10 percent for bilateral hearing loss is denied. The Veteran has appealed for a higher disability rating for his bilateral hearing loss, which is currently rated as 10 percent disabling. The Veteran’s claim for an increased rating for his service-connected bilateral hearing loss was received in January 2019. Ordinarily, in cases where service connection has already been established, the rater may review evidence up to the 12 months preceding receipt of the claim. Here, the effective date of service connection is March 7, 2018, therefore, the Board may only review as far back as that. 38 C.F.R. § 3.400 (o)(2). Hearing loss is rated under DC 6100. 38 C.F.R. § 4.85. Once a hearing disability has been established, a numeric designation of hearing impairment is determined for each ear by applying the puretone threshold average and Maryland CNC percentage scores to Table VI (“Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination”), which results in a Roman numeral designation. 38 C.F.R. § 4.85 (b), Table VI. Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII (“Percentage Evaluation for Hearing Impairment”). 38 C.F.R. § 4.85 (e), Table VII; see Lendenmann v. Principi, 3 Vet. App. 345 (1992). Table VI is generally used to determine the Roman numeral designation (I through XI) for hearing impairment in each ear, unless an exceptional pattern of hearing loss is shown, in which case Table VIa may be used. 38 C.F.R. § 4.86. Here, the Veteran’s hearing loss does not show an exceptional pattern (as set forth in Section 4.86) and therefore Table VI will be used. Evidence relevant to the level of severity of the Veteran’s bilateral hearing loss includes audiological examination reports dated in September 2018, January 2019, March 2019, and August 2019. The Veteran’s worst test results were recorded at the September 2018 VA examination, where he averaged a loss of 55 decibels in the right ear, and 53.75 decibels in the left ear. His Maryland CNC test results were 82 percent in the right, and 80 percent in the left. These results correspond with Level IV hearing loss in both ears, which corresponds to a 10 percent rating. See Tables VI and VII, 38 C.F.R. § 4.85. His hearing acuity from a January 2019 private examination (showing Level II and Level I hearing loss), a March 2019 VA examination (showing Level II hearing loss in both ears), and an August 2019 private examination (showing Level II and Level IV hearing loss) each correspond with 0 percent ratings. Id. Accordingly, his 10 percent rating is the appropriate rating based upon the evidence. The Board considered whether the other evidence of record, including his statements, showed that a higher rating is warranted. He has reported functional loss in not being able to hear people speaking to him, conversation, or when there is background sound. This evidence is insufficient, without the commensurate audiometric testing, to warrant a higher rating. The Board finds the results of audiometric testing are more probative in determining the actual degree of disability as set forth by the Rating Schedule. This medical evidence is persuasive, as it objectively shows the level of severity of his hearing loss in terms that may be applied to the rating criteria. 38 C.F.R. § 4.85; Lendenmann, supra. Accordingly, without additional test results showing an objective difference, the Board finds that the evidence is insufficient to award a higher rating. 2. An initial disability rating of 70 percent, and no higher, for PTSD is granted. The Veteran has appealed for a higher initial rating for his PTSD, which is currently rated as 50 percent disabling. The Veteran’s claim for an increased rating for PTSD stems from his disagreement with the initial rating assigned to his PTSD when it was service connected, effective November 28, 2018. The period of review for this claim starts from then. The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, DC 9411. A 50 percent evaluation is warranted where 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 in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. 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); and inability to establish and maintain effective relationships. A 100 percent evaluation requires 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. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Evidence relevant to the level of severity of the Veteran’s PTSD during the appeal period from November 28, 2018 to March 14, 2019 includes a February 2019 VA psychiatric examination report, VA treatment records dated through March 2019, as well as the Veteran’s testimony during the September 2019 Board hearing. During the February 2019 VA psychiatric examination, the examiner diagnosed PTSD and found that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he had been married to his third wife for 33 years and had two adult sons from his first marriage. His first marriage lasted 25 years and ended due to his ex-wife’s alcoholism and his second marriage lasted 3 years and ended due to conflict with his step-daughter. Occupationally, the Veteran had a Master’s Degree in education and worked in education administration for 27 years until his retirement. It was noted that the Veteran suffered significant medical problems following a stroke and heart problems and that he was in a wheel-chair due to poor equilibrium. However, the examiner noted that the Veteran’s mind was “sharp” and the Veteran showed “humor and spontaneous outlook.” The Veteran reported that he first sought mental health treatment three months earlier following his disabling stroke and vascular disease. Specifically, the Veteran reported experiencing depression, startled response, hypervigilance, nightmares, intrusive thoughts, crying spells, and anger. He denied experiencing suicidal/homicidal ideation. On psychiatric examination, the examiner found that the Veteran experienced the following symptoms: depressed mood, anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. The examiner noted that the Veteran was intelligent, talkative, easily engaged, intact, oriented, logical, coherent, and relevant. VA treatment records during the appeal period show similar findings but also show some social impairment. Significantly, a December 2018 VA treatment record shows that the Veteran had not been wanting to do to church as he did not want to leave his home. It was also noted that the Veteran had become very short tempered with others and was interacting less. As was noted in the August 2020 Joint Motion, the Veteran’s September 2019 Board hearing testimony also shows some social impairment. Specifically, during the Board hearing, the Veteran testified that he does not like to be around anybody and stays to himself all the time. Furthermore, during the Board hearing the Veteran testified that he had experienced hallucinations a “couple times.” Upon review of the above evidence, the Board finds that a disability rating of 70 percent, and no higher, is warranted for the Veteran’s PTSD for the entire appeal period beginning November 28, 2018.  As noted in the August 2020 Joint Motion, during the appeal period, the Veteran has experienced significant social impairment such as not wanting to be around other people and has experienced hallucinations a “couple times.” As above, a 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as family relations or mood, due to such symptoms as spatial disorientation and inability to establish and maintain effective relationships. While the February 2019 VA examiner found that the Veteran’s PTSD more nearly approximated a 30 percent disability rating, the rationale did not discuss the pertinent evidence noted above which supports a 70 percent disability rating. As such, resolving doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent disability rating have been met. As for the potential of a disability rating higher than 70 percent, the Board finds that the evidence does not show the symptomatology required for a 100 percent rating.  The Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for a maximum 100 percent rating.  However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran’s capacity for adjustment, and the examiner’s assessments of the Veteran’s overall psychological, social and occupational functioning, the Board must conclude that the Veteran’s psychiatric disability has not met or more closely approximated the criteria for a 100 percent rating at any relevant time.   In this respect, the Veteran, even at his worst, can efficiently converse with the VA examiner, and can generally manage his daily activities on his own.  He is not psychotic or out of touch with reality.  Overall, his psychiatric disorder is not shown to manifest the type, extent and severity of symptoms demonstrating “total occupational and social impairment” within the meaning of the rating schedule at any point pertinent to this appeal.  As such, a disability rating of 70 percent, and no higher, is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.