Citation Nr: 21010844 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-15 297 DATE: February 25, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether current bilateral hearing loss had its onset in or is otherwise related to the Veteran’s period of active service. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran’s tinnitus had its onset in or is otherwise related to the Veteran’s period of active service. 3. The competent and probative evidence warrants a finding that the Veteran’s PTSD has resulted in no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking and mood. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an initial rating of 70 percent, but not higher, for posttraumatic stress disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1967 during the Vietnam era. This case is before the Board of Veterans’ Appeals (BVA) on appeal from a December 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900. This matter was previously before the Board and remanded in May 2019 for additional development. There has been substantial compliance with the remand directives and there is no need for additional remands. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. Certain chronic diseases, including hearing loss and tinnitus, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. The Veteran contends that his bilateral hearing loss and tinnitus were caused by exposure to jet engine noise while working on the hangar deck as a tractor driver aboard the USS Forrestal and to loud explosions during a fire on the flight deck of the USS Forrestal in 1967. See February 27, 2004, Statement in Support of Claim. 1. Bilateral hearing loss and tinnitus In December 2014, a VA audiologist examined the Veteran, and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 30 25 35 LEFT 30 30 20 35 50 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. December 17, 2014, VA Examination. The competent and probative evidence warrants a finding that the Veteran has the current disabilities of bilateral hearing loss and tinnitus. Auditory thresholds for at least three frequencies was 26 decibels or greater in both ears. The December 2014 VA examination also confirmed a current diagnosis for tinnitus. Id. The first Shedden element and the requirements of § 3.385 are met for hearing loss and tinnitus. The weight of the competent and probative evidence warrants a finding that the second Shedden element of an in-service event or injury is satisfied for bilateral hearing loss and tinnitus. The Veteran contends that his hearing loss and tinnitus are due to exposure to jet engine noise and explosive noise during his service onboard the USS Forrestal. The Veteran’s military occupational specialty was aircraft handler. See October 10, 2014, DD 214. The tragic events onboard the USS Forrestal in July 1967 are well documented in the record and confirm the Veteran’s contentions. During the crisis onboard the Forrestal, seven major explosions shook the ship while a fire raged, and the heat began to cook-off bombs, rockets and 20 mm rounds. See October 10, 2014 Correspondence. Giving due consideration to the places, types and circumstances of the Veteran’s service, the preponderance of the evidence warrants a finding of noise exposure during service. See 38 C.F.R. § 3.303(a). Turning to the third and final element, the nexus requirement, the record contains conflicting medical opinions as to whether the Veteran’s bilateral hearing loss and tinnitus are at least as likely as not related to the in-service noise exposure. The Veteran contends that ringing in his ears began shortly after the Forrestal incident and he noticed hearing loss shortly after separation from service. October 10, 2014, Statement in Support of Claim. The Veteran was afforded VA examinations in December 2014 and February 2020. Both VA examiners opined that bilateral hearing loss and tinnitus were less likely than not related to military noise exposure. See December 17, 2014, VA Examination; February 3, 2020, VA Examination. The rationale for the negative nexus opinions for bilateral hearing loss centered around the lack of a significant shift in hearing from enlistment to separation. Id. In finding no nexus between in-service noise exposure and tinnitus, the examiners reasoned that because noise-induced hearing loss was not found, noise induced tinnitus could not be found. Id. The February 2020 examiner’s rationale for a negative bilateral hearing loss nexus was further supported by medical literature explaining the ranges in which early noise-induced hearing loss displays itself and how that damage progresses. See February 3, 2020, VA Examination. In October 2014, the Veteran submitted private opinions for each disability. In a June 2014 audiogram report, the audiologist opined that it was more likely than not that tinnitus was related to in-service noise exposure. October 10, 2014, Medical Treatment Record, Non-Government. Similarly, in a January 2005 correspondence, Dr. W.A. opined that bilateral hearing loss was as likely as not related to the Veteran’s service. See October 10, 2014, Third Party Correspondence. The clinician reasoned that hearing loss likely occurred during the episode of noise and acoustic trauma the Veteran was exposed to during the Forrestal incident. Id. The clinician explained that the Forrestal incident was the type of trauma to the ears that can routinely cause tinnitus and longstanding hearing loss that often only shows in the future. Id. The evidence is in equipoise as to whether the Veteran’s bilateral hearing loss and tinnitus are related to the in-service noise exposure. The 2014 VA examination is given little probative value as the sole reason for the negative nexus opinion is normal hearing at separation. Normal hearing upon separation from service is not necessarily fatal to a claim of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The January 2014 private opinion is given little probative value as the clinician failed to explain the reasons and bases supporting the positive nexus opinion. The conflicting February 2020 VA examination and January 2005 private opinion are both given great probative value as they are based on in-person examinations, consideration of medical and lay evidence and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Any doubt on the material issue of a nexus requirement is resolved in the Veteran’s favor, and service connection for bilateral hearing loss and tinnitus is warranted. 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. §§ 3.321(a), 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). In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). 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. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). All regulations that are potentially applicable must be acknowledged and considered. Schafrath, 1 Vet. App. at 593. Psychiatric disabilities are rated based on the General rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that “the presence of all, most, or even some, of the enumerated symptoms” is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. It is not enough for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula, a 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 38 C.F.R. § 4.130. A 30 percent rating will be assigned when there is evidence of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), 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, and recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted for 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 difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. The criteria for a 70 percent rating are as follows: 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; obsessive 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 an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The criteria for a 100 percent rating are as follows: 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, own name. 38 C.F.R. § 4.130. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. An evaluation is assigned based on all the evidence of record that bears on occupational and social impairment. 38 C.F.R. § 4.126. 2. Entitlement to an initial rating in excess of 10 percent for PTSD The Veteran contends that he is entitled to an initial rating in excess of 10 percent for posttraumatic stress syndrome (PTSD), evaluated under Diagnostic Code 9411. The competent and probative evidence warrants a finding that, throughout the period on appeal, the Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking and mood. On October 10, 2014, the Veteran submitted a private PTSD evaluation conducted in September 2014 by a clinical social worker. The Veteran presented with symptoms of high levels of anxiety and stress related to intrusive thoughts associated with his military trauma. See October 10, 2014, Medical Treatment Record, Non-Government. Veteran reported the use of alcohol to calm his nerves. He also indicated that thoughts of death did not bother him and at times he feels he and others would be better off but had no active plans to harm himself or others. The Veteran described difficulty sleeping due to nightmares reliving traumatic events onboard the Forrestal. The Veteran admitted to problems with marital relationship and parental role, and reported difficulty concentrating. During a December 2014 VA examination, the examiner noted symptoms of recurrent distressing dreams, persistent negative emotional state (e.g., fear, horror, anger, guilt or shame), feelings of detachment from others, sleep disturbance, irritable behavior and angry outbursts. See December 19, 2014, VA Examination. The Veteran stated that he had few friends and got along with co-worker and bosses. He retired as manager of a bus company in 2008. The Veteran further reported that he is restricted by his medical condition, which includes diabetes, heart difficulties, cancer, sleep apnea, high blood pressure and neuropathy. The Veteran answered in the affirmative when asked if he was suicidal. When asked what he meant, the Veteran explained that he was at the end of his rope in 2008 and had a hard time regaining the respect of his wife and children due to an extramarital affair. The Veteran indicated that he had no current plans to harm himself or others. The Veteran’s spouse reports that the Veteran has experienced flashbacks about the explosions and fire on the ship since they married in 1968 and has always had a difficult time sleeping. See October 10, 2014, Statement in Support of Claim. The spouse has observed poor judgment, problems completing tasks, and paranoia. The wife further described depression, feelings of worthlessness and survivor’s guilt, indicating that the Veteran questions why his life was spared and believes he should have died on the ship. According to the spouse, the Veteran drinks in excess, is angry and emotionally detached, avoids large groups of people, and has been incapable of attending any functions for the children over the years. See August 26, 2020, Buddy Statement. Private treatment records demonstrate that the Veteran received treatment and counseling for anxiety, depression and alcohol use disorder in 2018 and 2019. See December 10, 2019, Medical Treatment Record, Non-Government. Treatment was intermittent, and sobriety was not sustained. The record contains several statements from the Veteran describing his psychological symptoms. From the outset, the Veteran admitted that he abused alcohol as a mechanism of coping with his military trauma. See October 10, 2014, Statement in Support of Claim. The Veteran consistently reports symptoms of social isolation, anger problems, nightmares, problems sleeping, problems concentrating, depression, anxiety, feelings of worthlessness, forgetfulness, and thoughts of death. See id.; April 5, 2016, Form 9; March 18, 2015, Statement in Support of Claim; January 4, 2021, Appellate Brief. In compliance with the May 2019 remand, the Veteran was afforded a second VA examination in February 2020 to evaluate the severity of the Veteran’s symptoms attributable to PTSD. During the examination the Veteran recounted symptoms consistent with the evidence of record. See February 3, 2020, VA Examination. He endorsed difficulty sleeping, nightmares, intrusive thoughts regarding his military trauma, avoidance of large crowds and social settings, anger issues, alcohol abuse, feelings of worthlessness and thoughts of suicide, with no current plans to harm himself or others. The Veteran indicated that he engages socially with a group of men he meets for coffee. The 2020 examiner opined that there were no social or occupational impairments evidence due to PTSD and the Veteran’s physical conditions are voluntary choices were the more proximate etiologies governing social and occupational functioning. The examiner’s rationale noted that the Veteran was retired due to physical conditions and the Veteran was successfully treated for alcohol use disorder January 2017 through October 2019. The February 2020 VA examiner’s opinion is given no probative value as it is based upon the inaccurate premise that alcohol use disorder was successfully treated and does not adequately consider lay statements of the Veteran and his spouse. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate premise has no probative value). Conversely, the lay statements of the Veteran and his spouse, the 2014 VA examination and 2014 private PTSD evaluation are deemed competent, credible, and highly probative. In light of the foregoing, an initial rating of 70 percent, but no higher, is warranted as the competent and probative evidence demonstrates that the Veteran’s symptoms resulted in occupational and social impairment, with deficiencies in most areas, such as family relationships, judgment, thinking and mood. The evidence demonstrating depressed mood, anxiety, chronic sleep impairment due to intrusive thoughts and nightmares, social isolation/withdrawal, impaired concentration and memory, and suicidal ideation more nearly approximate a 70 percent rating. After analyzing the severity, frequency, and duration of the signs and symptoms of the Veteran’s PTSD, the Veteran’s mental health symptoms are not found to more nearly approximate a 100 percent rating. In fact, the Veteran’s symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory impairment, disturbances of mood, and impaired impulse control are specifically contemplated under the rating criteria for a 70 percent (or lower) evaluation. See 38 C.F.R. § 4.130. The Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm as contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The severity, frequency, and duration of the Veteran’s suicidal ideation, however, has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied present thoughts, intent, or a plan involving self-harm in the evidence of record. In finding that the weight of the competent evidence does not support a finding of total occupational and social impairment, consideration has been given to the fact that the evidence does not indicate gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130. Total inability to function socially and occupationally has therefore not been shown by the relevant evidence. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), but the Veteran could not receive a higher or separate rating for his PTSD. See 38 C.F.R. § 4.130. When a disorder is listed in the Rating Schedule, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). The benefit of the doubt has been applied, where applicable. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.