Citation Nr: 21009239 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-31 779A DATE: February 22, 2021 ORDER A rating of 50 percent, no higher, for posttraumatic stress disorder (PTSD) is granted. A rating in excess of 10 percent for tinnitus is denied. REMANDED Service connection for bilateral hearing loss is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD symptoms during the appeal period most closely approximated occupational and social impairment with reduced reliability and productivity. 2. The Veteran’s tinnitus is assigned the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from October 1968 to November 1969. Increased Rating 1. A rating of 50 percent, no higher, for PTSD is granted. The Veteran was assigned a 30 percent rating for other specified trauma and stressor related disorder (OSTSRD). The Veteran’s psychiatric disability was characterized as OSTSRD instead of PTSD because an April 2020 VA examiner found the Veteran met the DSM-5 PTSD criterion A (stressor exposure), criterion B (re-experiencing symptoms), criterion C (avoidance symptoms), and criterion E (hyperarousal symptoms), but did not find sufficient symptoms to meet criterion D (persistent negative changes in cognition/mood). This finding is inconsistent with VA mental health treatment records diagnosing the Veteran with PTSD, chronic. As such, the Board re-characterized the claim as one for PTSD. Under the General Formula for Mental Disorders (General Formula), 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. The Board finds the Veteran’s PTSD meets the criteria for a 50 percent rating for the entire appeal period. A review of the evidence shows a July 2010 Veteran statement reporting nightmares, sleep problems, sabotaged relationships, job problems, depression, and low motivation. At an October 2010 VA examination, the Veteran reported being married 38 years and having two children. He reported having few other social contacts. He reported starting a security job. He reported having 1 to 8 nightmares a month about Vietnam. He reported difficulty sustaining relationships, intermittent nightmares about Vietnam, distressed mood, and losing interest in things. At a July 2012 VA treatment visit, the Veteran reported nightmares and intrusive memories about Vietnam. He reported irritability, flat mood, poor attention, and poor sleep. He reported he used to have a lot of friends, but now just socializes with his wife. He reported working as an armed guard, which he enjoys because he doesn't have to deal with people. At a June 2013 VA treatment visit, the Veteran reported feeling down. He reported recently seeing a fishing line on the ground and panicking as if it was a booby trap. He reported switching to a regular day shift at work to spend more time with his grandchildren. At a February 2014 VA treatment visit, the Veteran reported hearing screaming and seeing faces in his peripheral vision. He reported ongoing intrusive memories and a strong accompanying feeling of guilt. At a March 2014 VA treatment visit, the Veteran reported depression, increased nightmares, and increased intrusive thoughts. At an April 2014 VA treatment visit, the Veteran reported difficulty sleeping, anger, and irritability. He reported decreased occurrence of visual hallucinations. At a June 2014 VA treatment visit, the Veteran reported a new recurring nightmare about Vietnam. He reported hearing voices saying his name that were not commanding or dangerous. He reported recently having a panic attack in a confined space. At a June 2014 VA treatment visit, the Veteran reported feeling like he wanted to choke somebody for the past couple months. He stated visual hallucinations were improved. At an August 2014 VA treatment visit, the Veteran reported improvement with auditory hallucinations and aggression. At an April 2015 VA treatment visit, the Veteran reported doing well overall, except for getting aggravated at little things and irrational anger. He reported working full time doing security for federal buildings and taking courses at WGU. At a May 2015 treatment visit, the Veteran reported being promoted at work and doing well with his schoolwork. He reported fear of crowded spaces and issues with intense feelings of anger, sometimes multiple times per day. At a September 2015 VA treatment visit, the Veteran reported feeling bad about self, feeling depressed, poor appetite, and trouble concentrating, with these symptoms occurring more than half the days in a month or nearly every day. He endorsed little interest in doing things, trouble falling and staying asleep, and feeling low energy. At a December 2015 VA treatment visit, the Veteran reported poor sleep, feeling anxious during the day, and low mood. He reported not wanting to see people outside his family. His wife sent a note to the therapist indicating concerns about her husband’s perceived social withdrawal. At a March 2016 VA treatment visit, the Veteran reported doing well. He felt less angry, sleeping better, and emotionally stable. The Veteran reported being awakened by the sounds of a radio, similar to white noise and faint music. He reported it awakens him, but he does not hear it after he is fully awake. The clinician opined it was a possible hypnopompic hallucination associated with his medication. At an April 2016 VA treatment visit, he reported still having mild hypnopompic hallucinations of radio sounds, but not as often. He reported still working full-time doing security at federal office buildings. In April 2018, the Veteran requested to restart his mental health services. He reported being short-tempered and easily tearful. He reported struggling with memories related to Vietnam. He stated he stopped taking his medications a couple years ago at the request of his family because they stated it made him “zombie like.” At a September 2018 VA treatment visit, the Veteran reported nightmares and anger. At an October 2018 VA treatment visit, the Veteran reported nightmares, feeling of restlessness, exaggerated startle response, avoidance of crowds and war related media, anger, irritability, and chronic pain. At a November 2018 VA treatment visit, he reported wanting to make an effort to re-engage with friends with his wife, although it would feel forced at first. He reported giving two weeks notice at his job, where he had been working the last eight years, to concentrate on an entrepreneurial venture. At a December 2018 VA treatment visit, the Veteran reported struggling with frustration about the wasted years spent in distress about his trauma. He reported his wife expressed frustration with his motivation and concentration. At an April 2019 VA treatment visit, the Veteran reported having a flashback while on vacation with his family. He heard a small child scream, which triggered a vivid flashback. The Veteran reported feelings of sadness, grief, and regret. At an August 2019 VA neuropsychological consult, the Veteran reported increased memory loss. He reported anger and discontent about Vietnam. The clinician noted persistent PTSD symptoms, prominent anxiety, violent dreams, reliving of traumatic events, and hallucinations. At a November 2019 VA treatment visit, the Veteran stated he had not felt so good since before joining the military. At an April 2020 VA examination, the Veteran reported a good relationship with his wife and adult children. He reported having 3 grandchildren that he helps transport to their activities. He reported having a couple of friends, after running off most of his friends. He denied hobbies. He reported his typical day involves sitting around and watching television. The clinician noted the symptoms of suspiciousness and chronic sleep impairment. The Veteran reported occasional visual hallucinations in his peripheral vision and hearing voices. He denied suicidal ideation. He reported nightmares 2 to 3 times a week. He reported hypervigilance, feeling lethargic, ongoing irritability, and intrusive recollections of his military stressors. He reported forgetfulness and confusion since a prostate procedure the year prior. At a June 2020 VA treatment visit, the Veteran reported his anger is quick, but he learned to better manage it. At a July 2020 VA treatment visit, the Veteran described his mood as the best it had been since Vietnam. He reported continued nightmares. At an October 2020 VA treatment visit, the Veteran reported being excited to be visiting a friend. He reported fluctuating mood. At a January 2021 VA treatment visit, the Veteran reported his PTSD was managed, but far from controlled. He reported being hypervigilant and described his mood as “desperate.” He endorsed visual hallucinations every once in a while, last time a couple days ago. He reported nightmares were better. The Board gives probative weight to the Veteran’s and his wife’s lay statements describing his psychological symptoms. The statements are consistent with his seeking regular mental health treatment for the majority of the appeal period. The Veteran demonstrated a serious commitment to controlling his psychological symptoms, so the Board finds statements made to his treatment providers highly credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds the Veteran’s PTSD symptoms during the appeal period most closely approximated occupational and social impairment with reduced reliability and productivity. Looking to the 50 percent criteria, the Veteran experienced flattened affect; impairment of short and long-term memory; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. The Veteran also experienced nightmares, sleep impairment, irritability, isolation, hypervigilance, low motivation, impaired concentration, intrusive recollections, low self worth, depression, anxiety, and periods of visual and auditory hallucinations. The Board finds the severity, frequency, and duration of the Veteran’s PTSD symptoms most closely approximate occupational and social impairment with reduced reliability and productivity. The evidence is against finding the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. From July 2010 until December 2018, the Veteran maintained full-time employment at the same job. In May 2015, the Veteran reported receiving a work promotion and taking college courses. In October 2017, the Veteran’s psychologist wrote a letter to the Veteran’s employer stating at no time was it believed the Veteran’s condition impaired his judgment, reliability, cognitive function, or ability to safely and efficiently perform the tasks required of his job as a security officer. At a November 2018 VA treatment visit, the Veteran reported he retired to pursue an entrepreneurial venture. A January 2021 Application for Increased Compensation Based on Unemployability indicated the Veteran was currently unable to work due to a prostate cancer procedure and residuals. During the appeal period, the Veteran maintained a good relationship with his wife and children. The Veteran reported assisting with watching and transporting his grandchildren. He reported a few close friends. The Board considered the Veteran’s reported hallucinations and memory loss in assigning a 50 percent rating for PTSD. The Board finds the frequency and severity of these symptoms did not warrant a higher rating. The Veteran’s hallucinations, as described by the Veteran in his treatment records, did not amount to persistent delusions or hallucinations. While experiencing these symptoms, the Veteran was able to maintain full-time employment and his relationships. His family permitted him to transport and spend time with his grandchildren. He did not require inpatient treatment. The Board considered the Veteran’s reports of memory loss and confusion following his February 2019 prostate cancer surgery. Although the etiology of his memory loss and confusion is unclear, the evidence does not support a severity of memory loss for names of close relatives, own occupation, or own name. In summary, the Board finds the preponderance of the evidence supports a 50 percent rating, no higher, for PTSD. 2. A rating in excess of 10 percent for tinnitus is denied. The Veteran’s tinnitus is assigned a 10 percent rating under DC 6260. Under DC 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). Here, the Veteran’s tinnitus has been assigned the maximum schedular rating available for tinnitus under Diagnostic Code 6260. As such, there is no legal basis upon which to award a higher rating. Accordingly, a rating for tinnitus in excess of 10 percent is denied. REASONS FOR REMAND 1. Service connection for bilateral hearing loss disability is remanded. The Veteran contends bilateral hearing loss related to noise exposure during service. An October 2010 VA examiner opined the Veteran’s hearing loss was at least as likely as not related to in-service noise exposure. However, audiological testing did not show bilateral hearing loss disability for VA purposes. As the Veteran was last provided audiological testing over 10 years prior, the Board requests an examination to determine the current severity of his bilateral hearing loss. 2. Entitlement to TDIU is remanded. The Veteran retired from a security job in December 2018. A November 2018 treatment record indicated the Veteran retired to pursue an entrepreneurial venture. A December 2019 VA treatment visit indicated the Veteran opened a business delivering meals to various worksites and he had a team of truck drivers. A February 2019 VA treatment visit indicated he was experiencing stress related to his business. Clarification of the Veteran’s current work status and/or self-employment is needed before proceeding with adjudication of TDIU. The matters are REMANDED for the following action: 1. Schedule a VA examination to address the severity of the Veteran’s hearing loss. Audiological testing must include, in numeric decibels, the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz and must provide speech recognition scores using the Maryland CNC test. 2. Obtain clarification from the Veteran of any employment or self-employment after December 2018. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.