Citation Nr: 21009002 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-41 954 DATE: February 18, 2021 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for left upper extremity diabetic peripheral neuropathy, secondary to diabetes mellitus type II is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s PTSD is manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW For the entire appeal period, the criteria for a rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969. He also served in the Army National Guard from December 1973 to December 1993, with periods of active and inactive duty for training. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of that hearing has been associated with the claims file. Subsequently, in September 2019, the Board denied the claim for service connection for left upper extremity diabetic peripheral neuropathy, secondary to diabetes mellitus type II. The Board remanded the issues of entitlement to a rating in excess of 10 percent for PTSD and service connection for bilateral hearing loss. The Veteran appealed to the Board’s denial of the left upper extremity issue to United States Court of Appeals for Veterans Claims (Court). In August 2020, the parties filed a Joint Motion for Partial Remand (JMPR) and the decision is vacated with regard to that issue. It is now returned to the Board to comply with the findings consistent with the JMPR. While in remand status in August 2020, the RO granted and increased rating of 50 percent for the PTSD, effective November 27, 2013 (the entire period on appeal). An August 2020 supplement statement of the case denied higher than 50 percent and the hearing loss issue. As the Veteran was as to provide relevant records in a November 2019 letter and provide a VA PTSD examination in January 2020, the Board finds there has been substantial compliance with the related directives from the 2019 remand.   Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. An initial rating in excess of 50 percent for PTSD The Veteran contends that a higher rating for his PTSD is warranted due to the severity of his symptoms. Such disability is rated under the criteria of DC 9411, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. 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 severity, frequency, 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). 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 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 cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. Turning to the evidence of record, private treatment records from January and August 2013 show that the Veteran had an appropriate mood and affect, appropriate judgment, incite, intact memory, and was oriented to person, place, and time. The Veteran underwent a VA examination in December 2014. He reported being married for almost forty-five years and he described the relationship as “very well, for the most part.” He had three children and five grandchildren with whom he had positive relationships. He was friendly with some co-workers, but he did not consider anyone as a close friend. He worked as a highway maintenance worker for forty-one years before retiring and denied any significant occupational problems. He was seasonally employed in security and enjoyed his work and had no significant occupational problems. His documented symptoms were anxiety, suspiciousness, chronic sleep impairment, and disturbance of motivation and mood. Upon examination, he had a euthymic mood, appropriate affect, and oriented to person, place, and time. He denied suicidal ideation. The examiner determined that his level of impairment was that a mental condition had been formally diagnosed, but the symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. At his May 2019 hearing, the Veteran reported that previous couple of years were overwhelming as he had various life changes occurring such as taking care of his mother, his dogs passing away, and becoming a home owner. The Veteran was afforded another VA examination in January 2020. He continued to describe his fifty-year marriage as very good. He also had real good relationships with his three sons. He spent his free time RVing, woodworking, and traveling. He was still retired. He reported attending therapy for two months and denied suicidal or homicidal ideations. Documented symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon examination, his speech was logical, and he was oriented to person, place, situation, and time. His concentration, judgment, and insight were good. The examiner determined the Veteran’s disability was productive of occupational and social impairment with reduced reliability and productivity. After reviewing the relevant competent and lay evidence, the Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. Throughout the appeal period, the Veteran’s PTSD manifested in symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. These symptoms are demonstrable of social and occupational impairment with reduced reliability and productivity. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. However, the Board further finds that the frequency, duration, and severity of the Veteran’s psychiatric symptoms did not result in occupational and social impairment, with deficiencies in most areas. In support, the record shows that he retained good relationships with his spouse and children. He also maintained various hobbies, such as woodworking. He was retired and did seasonal work at some points in the appeal period. There was no evidence of suicidal ideation, obsessional rituals which interfere with routine activities, near-continuous panic or depression, impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene. Here, the frequency, duration and severity of the Veteran’s symptoms do not cause occupational and social impairment to warrant the assignment of a higher rating. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the type and severity of symptoms that indicate a certain level of disability. After examining the Veteran’s displayed PTSD symptoms and the associated impairment, however, the Board concludes that the Veteran’s symptomatology more nearly approximates the criteria for a rating of 50 percent for this period on appeal. For the above reasons, the criteria for a 70 percent rating are not met and the appeal is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for left upper extremity diabetic peripheral neuropathy, secondary to diabetes mellitus type II is remanded. In the August 2020 JMPR, the parties agreed that the Board erred by not addressing relevant evidence. Specifically, an April 1991 service treatment record while he was in the Army National Guard that showed he reported numbness in the left fingers and was diagnosed with carpal tunnel syndrome. Additionally, it is noted that the Veteran indicated he was diagnosed with left upper extremity peripheral neuropathy after the November 2014 VA examination. At the November 2014 VA examination, the examiner found that he did not have symptoms attributable to peripheral neuropathy. However, the examiner did not consider or address the April 1991 medical record. After a military drill involving heavy artillery fire, he had numbness in his left fingers and was diagnosed with carpal tunnel syndrome. See 12/30/2013 STR-Medical, at 52. As such, an addendum opinion or examination to address the relevant evidence is warranted and to assist the Board in adjudication of this matter. 2. Service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is due to occupational noise exposure during active service. The Veteran’s Military Occupation Specialty (MOS)was as a truck driver. In the September 2019 decision, the Board found that the Veteran was exposed to loud/hazardous noise levels during service based on the places, types and circumstances of his service. 38 C.F.R. §3.303(a). The Veteran underwent a VA examination for his bilateral hearing loss in December 2014. The examiner could not obtain reliable thresholds for rating. Differences could not be resolved between speech reception and pure tone averages. The examiner noted that there was evidence that he did not suffer hearing loss because there were audiograms from within three years of discharge that were within normal limits without significant decrease in auditory thresholds beyond normal progression and test retest variability. The Board then remanded this matter in 2019 to afford the Veteran another VA examination to determine the level of his hearing loss. Thereafter, the Veteran underwent another VA examination in January 2020. The examiner opined that his bilateral hearing loss was less likely than not due to military service. It was noted that there was no separation test, but hearing sensitivities were within normal limits on multiple periodic examinations. An examination from 1978 revealed normal hearing sensitivities in both ears. A November 1990 periodical examination did reveal bilateral hearing loss. The examiner specified that this suggested that the onset of hearing loss was not related to active service. In rendering the above opinion, the 2020 examiner did not address the Veteran’s noise exposure in service as a truck driver. As previously noted, he was found to have been exposed to loud or hazardous noise levels. The examiner failed to explain why hearing loss such as the Veteran’s that was first documented many years after an acoustic trauma would not be related to that in-service loud noise exposure. The Court has held that absence of in-service evidence of hearing disability is not fatal to a claim for service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As such, the Board finds that an addendum opinion or examination, if necessary, is warranted to address the Veteran’s contentions and the circumstances of his service.   These matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. William Taylor from Heartland Primary Care. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. After completing directives #1, schedule the Veteran for a VA examination for his left upper extremity diabetic peripheral neuropathy, to include as secondary to diabetes mellitus type II. The examiner must review the claims file, including this Remand. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. Please complete the functional impact section of the examination report. The examiner is asked to provide a response to the following: a) Is the left upper extremity diabetic peripheral neuropathy at least as likely as not related to service was caused by an in-service injury, event, or disease? b) Is left upper extremity diabetic peripheral neuropathy at least as likely as not proximately due to service-connected diabetes mellitus type II? c) Is left upper extremity diabetic peripheral neuropathy at least as likely as not aggravated, i.e., worsened beyond its natural progression, by diabetes mellitus type II? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directives #1 and #2, return the claims file to the VA examiner who provided the January 2020 VA medical opinion regarding the Veteran’s bilateral hearing loss for a medical opinion. The examiner must review the entire claims file, including a copy of this Remand. If the VA examiner who provided the January 2020 opinion is not available, then forward the Veteran’s claims file to another appropriately qualified examiner to obtain the below requested medical opinion. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hearing loss was caused by his exposure to loud/hazardous noise during service, including as a truck driver, which is an occupation specialty that has a high probability of noise exposure. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.