Citation Nr: 21010779 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-11 291 DATE: February 25, 2021 ORDER A 50 percent disability rating, but no higher, for anxiety disorder is granted for the entire period on appeal. Service connection for hearing loss of the left ear is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s service connected anxiety disorder has been manifested by symptomatology more nearly approximating occupational and social impairment with reduced reliability and productivity due to symptoms of hypervigilance, chronic sleep impairment, anxiety, social withdrawal, depressed mood, anxiety, irritability, and difficulty in establishing and maintaining effective work and social relationships; deficiencies in most areas is not shown. 2. A hearing loss disability of the left ear for VA purposes has not been manifested at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for disability rating of 50 percent for the entire period on appeal, but no higher, for anxiety disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9400. 2. The criteria for service connection for hearing loss of the left ear have not been met. 38 U.S.C. § § § 1101, 1110, 1112, 5107; 38 C.F.R. § § § 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran and his wife testified before the undersigned Veterans Law Judge in an October 2019 video conference hearing. A transcript of that hearing has been associated with the file. The Board remanded the matter in December 2019 for additional development. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. The Veteran served on active duty in the United States Army from August 1974 to August 1977 and from November 1990 to May 1991. Increased Disability Rating Psychiatric disabilities, such as anxiety disorder, are evaluated under the General Rating Formula for Mental Disorders (pertinent portions listed below). See 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent disability rating requires 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 30 percent disability rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “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, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The Veteran contends that his anxiety disorder is more severe than contemplated by the disability rating assigned. Specifically, he is requesting a 50 percent disability rating and testified that an assignment of 50 percent would satisfy his appeal. See June 2014 notice of disagreement and October 2019 hearing transcript. In an August 2020 statement, the Veteran described the severity of his anxiety disorder symptoms. Last year the episodes of anxiety attacks have increased tremendously. Trips to the grocery story have become a dreaded a task because he panics and becomes very anxious when in large crowds. He described an incident that happened on Mother’s Day where he was in a very crowded store and just hearing the crowd caused his hands to become clammy, his heart to palpitate and his breathing to become labored. He felt as if the walls were closing in on him. He stated that he experiences anxiety attacks about three times a week, causing him to avoid family gatherings and to avoid going out to dinner with family and friends. His desire to do things he once loved such as gardening, fishing, and playing outside with his grandchildren have been greatly altered. During the hearing the Veteran testified that he has a hard time with crowds and that he suffers from panic attacks daily. The Veteran filed his claim for an increased disability rating in July 2013. Under the governing law and regulations outlined above, the Board generally reviews the evidence dating back to one year prior to the date of the claim to determine whether, within that one-year period, an increase in a disability was factually ascertainable. See 38 C.F.R. § 3.400(o). Therefore, the Board will assess VA medical treatment records dated outside of the appeal period, noting that one the records discussed below goes back a little further than a year. The Board recognizes that there are private mental health treatment records in evidence. However, a review of these documents illustrates that these records are not substantive and therefore will not be discussed. The Veteran has received mental health treatment at VA from 2012 through at least 2018. Following the filing of his claim for an increased rating he has been provided three VA examinations for his anxiety disorder. The pertinent information from treatment and the examinations will be summarized below. During a March 2012 VA mental health appointment, he reported that he continues to struggle with restless sleep and war-related nightmares. He has continued to isolate from others to avoid conflict and has continued to avoid talking about his war experiences. He has continued to have a hyper startle response to loud unexpected noises and to being approached from behind. He has continued to isolate to the point of not making new friends and neglecting his personal needs. He may skip a meal, skip taking medication, or refrain from engaging in the care of his personal hygiene. During a July 2014 VA mental health appointment, he endorsed symptoms of hypervigilance and hyper startle response. He still avoids crowds and has had anxiety attacks when he goes to stores. During an April 2015 VA mental health appointment, he denied current suicidal and homicidal ideation but stated there are times he has thoughts. He described the thoughts as fleeing. He denied plan or intent to act on these thoughts. He identified his faith and family as barriers. During a September 2018 VA mental health appointment, the Veteran expressed his desire to resume mental health services. “I have had some things going on and need to get back in contact with MH services.” He has been involved with mental health (MH) since 2011. The examiner listed his diagnostic impression. The Veteran’s anxiety is more prevalent when around unknown persons in crowds. He avoids outings with large groups and has anxiety in grocery stores. He has developed a good set of coping skills. During the March 2014 VA examination, the examiner concluded that the Veteran’s level of impairment 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. He reported conflict with his wife of 30 years due to his irritability. He has not worked since 2010 when he had to take an early retirement from the State after his job ended. At the time of the examination he was attending his second year of college, full time, studying automotive technology and reported doing well in school. He underwent 12 weeks of counseling for anxiety. The symptoms for VA rating purposes were anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. Upon mental examination, the Veteran was alert and oriented. He provided an accurate history and insight was adequate. His response times were normal. Affect was blunted. Attention was normal and he was not distractible. Spontaneous speech was fluent and grammatic and free of paraphasis. His immediate, recent, and remote memories were within normal limits. During the February 2017 VA examination, the examiner concluded that the Veteran’s level of impairment 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 living in South Carolina, with his wife. He has two adult children. He lost his mother four years prior and lost a cousin a week prior. His sister recently found out that she has breast cancer. He reported having two close friends and reported that he enjoys playing basketball and fishing. His employment status remained unchanged. He was last employed with the State of South Carolina in 2010. He described receiving mental health counseling through VAMC, attending about once every six months. He did not take any medications to treat his mental health. He reported having excessive anxiety and worry about the losses in his family and depressed mood about his sister’s health. He endorsed feelings of concern regarding the decrease in his retirement pension as he depends on it to pay his bills. He reported decreased sleep over the last four weeks, due to the recent stressors, averaging four hours os sleep per night. He had a panic attack two weeks ago at a Walmart, due to a big crowd. He stated that panic attacks happen when he is in a big crowd. The symptoms for VA rating purposes were depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. Upon mental examination, the Veteran was alert and oriented. He was cooperative. Mood was euthymic and affect was full range. He denied current suicidal and homicidal ideation as well as auditory or visual hallucinations. Speech was fluent and normal in rate and tone. He registered 3/3 words and recalled 2/3 words at five minutes. During the March 2020 VA examination, the examiner concluded that the Veteran’s level of impairment 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. He has been married 36 years. He described his relationship with his wife and kids as “great.” He described how he loves to read and play sports. He reported that he goes to the gym and meets up with a group of veterans where they are mutually supportive of one another. His employment status remained unchanged. He stated that while employed by the State, large gatherings would bother him. He received an associate degree in Automotive Technology in 2015. He has had not mental health hospitalizations or suicide attempts. Five years prior, he had suicidal ideation but no intent when he lost loved ones. He denied current suicidal ideation, plan or intent and he has the VA Crisis Line number. He stated that his wife, children, and two grandchildren are deterrents to self-harm. He reported that the other veterans and his wife are his best therapy. He does not participate in outpatient counseling nor does he take any psychotropic medications. The symptoms for VA rating purposes were depressed mood, anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. Upon mental examination, the Veteran presented as neatly groomed and oriented to all four spheres. His motor activity and speech rhythm, rate, tone, and volume were within normal limits. Memory and concentration were grossly within normal limits. Mood was slightly anxious and affect at times was tearful when speaking of people he lost, to include his sister. He did not have current suicidal or homicidal ideation, plan, or intent. Thought process was linear and goal-directed with appropriate content. There was no evidence of hallucinations or delusions. Insight and judgement were good. He was cooperative. The examiner noted that the Veteran had other symptoms attributable to his mental disorder that was not listed above. The symptom was described as irritability without physical aggression. The examiner provided additional detail in the remark’s section of the report. The Veteran has continued difficulty with crowds and loud noises. He has experienced both mental and physiological signs of anxiety and has continued to experience panic attacks less than weekly in response to these triggers. He does have occasional nightmares about the losses he has had in his life to include his sister and the friend he lost during Desert Storm. The examiner concluded that generally the Veteran is generally functioning satisfactorily with only intermittent difficulties and normal routine behavior, self-care and conversation. His status remains unchanged from time of the prior examination. The Board acknowledges that the record indicates suicidal ideation. However, suicidal ideation is just one symptom when assessing whether a 70 percent rating is warranted and at no point was the suicidal ideation described as active with thoughts of self-directed violence and death. There was no indication of a plan or intent to harm. His symptoms did not rise to a level of causing occupational and social impairment with deficiencies in most areas, even considering all the symptoms outlined above. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Lastly, the Veteran is not seeking a 70 percent rating. As referenced above, the Veteran has consistently requested a 50 percent rating. A claimant may limit his appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the Board’s discussion will focus on whether the Veteran’s anxiety disorder most nearly approximates a 30 percent rating or a 50 percent rating. The question before the Board is whether the symptoms of the Veteran’s anxiety disorder most nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, consistent with the criteria for a 30 percent rating; or whether the symptoms most nearly approximates occupational and social impairment with reduced reliability and productivity consistent, with the criteria for a 50 percent rating. Affording all reasonable doubt in the Veteran’s favor, the Board finds that a 50 percent rating is warranted for the entire period on appeal. The Board acknowledges all three VA examiners opined that the severity of the Veteran’s anxiety disorder was best summarized by 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, which is consistent with a 30 percent rating. However, the Veteran has provided competent, credible and consistent statements and testimony detailing the frequency and severity of his panic attacks and the Board finds these to be highly probative. Additionally, the VA treatment records consistently note isolation, hyper startle response, hypervigilance and anxiety. The Board finds that this is most consistent with occupational and social impairment with reduced reliability and productivity. Therefore, a 50 percent rating for his service-connected anxiety disorder is warranted for the entire appeal period. This decision represents a full grant of the benefit sought on the appeal by the Veteran. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic diseases, which are listed in 38 C.F.R. § § 3.309(a), including organic diseases of the nervous system (to include sensorineural hearing loss) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § § § 1112, 1113, 1137; 38 C.F.R. § § § 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § § 3.385. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Of note, in-service noise exposure has been conceded. Therefore, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease to include his presumed exposure to noise. A review of the Veteran’s service treatment records does not reflect audiometric testing showing a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in January 2017, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG LEFT 10 15 15 25 25 20 Maryland CNC speech discrimination testing showed recognition of 94 percent in the left ear. The examiner indicated that the Veteran has sensorineural hearing loss, but only in the frequency range of 6000Hz or higher. The examiner concluded that the Veteran’s hearing loss does not rise to a level that is considered to be a disability for VA purposes. The examiner did opine that the Veteran’s left hearing loss is not related to service, stating that his puretone thresholds and speech recognition scores do not meet the criteria for disability under VA regulations. The Veteran was afforded a VA audiological examination in March 2020, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG LEFT 20 25 15 25 30 24 The examiner indicated that the Veteran has sensorineural hearing loss, in the frequency range of 500 to 4000Hz and in the frequency range of 6000Hz or higher. The examiner concluded that the test results are valid for rating purposes. The examiner opined that the Veteran’s hearing loss is not at least as likely as not caused by or a result of an event in military service, stating that there were no significant shifts when comparing the enlistment examination to the separation examination. Although noise exposure is conceded, and the relationship of noise, auditory damage and hearing loss is well established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage related to current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case as there were no significant permanent threshold shifts, therefore the hearing loss is less likely than not related to military service. The Board recognizes that there is no Maryland CNC speech discrimination testing indicated in the report. The examiner concluded that the use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make the combined use of puretone average and speech discrimination scores inappropriate. The actual audiological evaluation report has comments. It notes that Maryland CNC testing was done and that the scores for the left ear ranged from 68 to 82 percent. She concluded that the responses were not valid as the Veteran skipped several words even after being reinstructed and did a lot of rhyming or changing the endings of words. Speech testing was not valid for rating purposes. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran’s claim of service connection for hearing loss of the left ear. The Board recognizes that the March 2020 VA examiner indicated speech recognition scores using the Maryland CNC Test that was less than 94 percent. However, as detailed above she found this speech testing to be invalid. As such, the Board places no probative weight on the March 2020 speech testing. Additionally, the January 2017 VA audiogram is valid for rating purposes and indicates a speech recognition score of 94 percent, showing a lack of a disability for VA purposes. The Board appreciates the Veteran’s contentions and statements related to his claimed hearing loss of the left ear. Although the Veteran was exposed noise while in service, there is no evidence that he has been diagnosed with a hearing loss disability of the left ear by VA standards at any point during the timeframe on appeal. There is no audiogram of record to indicate hearing loss to constitute a hearing loss disability of the left ear for VA benefits purposes. In other words, the clinically valid audiological examination (s) during the timeframe on appeal did not reveal auditory thresholds of 40 decibels or greater at any of the prescribed auditory thresholds or speech recognition scores of less than 94 percent in either ear. Likewise, no single examination shows at least three auditory thresholds of 26 decibels or greater or during the time frame on appeal. With respect to the Veteran’s contention that he currently has a hearing loss disability of the left ear, a layperson is competent to attest to the onset and continuity of symptomatology. As a layperson, the Veteran is competent to report that he experiences difficulty hearing. However, he is not competent to render a diagnosis of a hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § § 3.385. The Board acknowledges receipt of the private handwritten audiograms dated July 2017, November 2019, and August 2020. All three records come from the same Speech, Language and Hearing Center. All three records have handwritten values for the thresholds in the frequencies from 500 to 8000Hz. It appears that the Ambco Model 1000 Audiometer + Oto Screen was used. Neither of records have any indication as to what trained, qualified professional administered any of the audiological examinations. All three records show illegible signatures and the two that have printed names are nearly illegible. The is nothing written to show that this was performed by an audiologist. Additionally, there is no indication that Maryland CNC speech testing recognition was performed. As such, these records are not substantive as they do not provide valid testing results. Also, of note, only one of these records reflect thresholds that could be considered hearing loss by VA regulations. The Board recognizes that although there is no disability of a hearing loss of the left ear, the March 2020 examiner provided an opinion with detailed rationale. Absent competent and reliable evidence of a hearing loss disability the Board concludes that the claim of entitlement to service connection for a hearing loss disability of the left ear must be denied. The preponderance of the evidence is against the Veteran’s claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § § 3.102. In closing, the Board recognizes the Veteran’s active service. The decision contained herein certainly does not preclude the Veteran from reapplying for service connection for hearing loss of the left ear, should he find that this disability presents itself. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.