Citation Nr: 21011089 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-06 711 DATE: February 26, 2021 ORDER 1. Entitlement to an increased initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. REMANDED 2. Entitlement to a compensable initial rating for bilateral hearing loss is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an increased initial rating for PTSD in excess of 50 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the Army from August 1966 to August 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a November 2018 rating decision that assigned a 50 percent initial rating for PTSD, effective August 19, 2013, and an April 2018 rating decision that assigned an initial noncompensable evaluation for bilateral hearing loss, effective August 19, 2013. The Veteran testified at a virtual Board hearing in January 2021. A transcript of the hearing has been associated with the claims file. The Veteran has alleged that he suffers from PTSD symptoms that have progressed over time, including anxiety, increased stress, concentration and memory deficits, depressed mood, increased hostility, nightmares, and social isolation. He reported that his symptoms caused his work performance to suffer prior to his retirement in approximately 2016. The Veteran also indicated that his hearing loss has worsened since the time of his last evaluation. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities, including PTSD: A 50 percent disability rating is warranted when 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 (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. A 70 percent rating 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas," i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 11718; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 50 percent for PTSD. The reasons follow. 1. Entitlement to an increased initial rating for PTSD in excess of 50 percent Treatment notes indicate that the Veteran has been followed at VA for PTSD since 2014. In 2015, the Veteran was seen for mental health treatment and noted to have longstanding symptoms of PTSD, including 45 years of intrusive recollections relating to his training to become a medic with ongoing nightmares. He stated that he was looking forward to retiring in the next year. He denied current hypervigilance, avoidance, and numbness, but described them as present in the past. He denied any history of suicidal behavior or inpatient psychiatric treatment. On mental status examination, he was found to have a reality-based and goal-direct thought process with fair insight, judgment, and impulse control. He denied perceptual disturbances and related well to the examiner. These unremarkable findings on mental status examination were repeated on follow-up in May 2016. The Veteran reported that he had found relief from nightmares and vivid dreams most days of the week and that he was able to sleep up to seven hours per night. He continued to deny mania, psychosis, suicidal ideation, and panic attacks. Similar findings were also noted in November and December 2016 and no acute concerns were noted during treatment. Improved sleep continued to be reported with no findings of hypervigilance, mania, psychosis, or panic attacks. In 2017, the Veteran reported some difficulty remembering small things, like recalling names, although he said they would eventually come to him. He also reported some difficulty remembering some things his wife told him, which made her more irritable with the Veteran. However, treatment notes stated that the Veteran continued to do well in terms of depression and PTSD symptoms. On multiple occasions, the Veteran reported continued independence in his activities of daily living without any decrease in functioning relating thereto. Treatment notes from 2018 continued to document that the Veteran was doing well in terms of mood and PTSD symptoms, despite some symptom exacerbations noted from life stressors such as attending funerals. He noted continued difficulty remembering names and words, which would later come to him, but no other cognitive deficits. On mental status examination, he was described as cooperative, alert, and attentive. His memory, insight, and judgment remained intact, and he had a goal-directed thought process without suicidal ideation, psychomotor disturbance, or perceptual abnormalities. The Veteran underwent a VA examination in October 2018 and was assessed with PTSD. The Veteran indicated that he had not worked since retiring from being a mental health worker at the local VA three years prior. He stated that symptoms of anxiety, poor concentration, and poor memory were problematic in his work before retirement. He stated that he opted to retire as he was getting worried about his notable forgetfulness and was increasingly anxious in the social environment. The Veteran stated that his overall symptoms included hypervigilance, anxiety, depressed mood, insomnia, irritability, avoidance, poor concentration, poor memory, and emotional numbing. He stated that he avoids crows and social interaction, is increasingly forgetful and suspicious, and has lost pleasure in activities he previously enjoyed. On examination, he was polite, cooperative, alert, and fully oriented with a logical, linear, and goal-directed thought process, and normal comprehension. Thereafter, the record does not indicate significant symptom exacerbations or the need for more than routine treatment. At the January 2021 hearing, the Veteran reported symptoms consistent with those reported at his October 2018 VA examination. He stated that he is prone to underreport the severity of his symptoms. However, by the Veteran’s own admissions, despite his reported concerns about psychiatric symptoms impacting his work performance, he indicated that he was still able to perform his job adequately prior to retiring. He stated that instead of receiving performance evaluations that he exceeded expectations, like he had in the past, he instead received evaluations indicating that he met expectations. The Board finds that the record fully accounts for the Veteran’s reported symptoms, but that the preponderance of the evidence is against a finding that the Veteran’s PTSD warrants a disability rating in excess of 50 percent. In the October 2018 VA examination report, when asked which of the following best summarized the Veteran’s level of occupational and social impairment, the examiner checked 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 the level of severity described under the 30 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the service-connected PTSD, the examiner’s conclusion that the Veteran’s PTSD was summarized best by the criteria described under the 30 percent rating is evidence against a finding that the Veteran’s psychiatric disorder causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood to warrant a 70 percent rating or higher. The totality of the evidence does not suggest a level of disability warranting an increased rating in excess of 50 percent. Specifically, the preponderance of the evidence is against a finding that the Veteran’s symptoms demonstrate the severity of symptoms described for a 70 percent rating, including 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. For example, the Veteran’s mental status examinations have been generally unremarkable, indicating no impairment in thought process or communication, a linear and goal-directed thought process, no delusions/hallucinations, and fair insight, judgment, and impulse control. The Veteran has routinely denied suicidal ideation and panic attacks and he is generally described as polite, cooperative, and attentive. He has remained fully independent in activities of daily living, has been married for five decades, and was able to function adequately in his job in a stressful social environment before opting to retire after age 70. The Veteran has received only routine counseling and has not required urgent or inpatient treatment. Rather, it appears that the Veteran’s symptoms of mood disturbances, irritability, anxiety, and memory/concentration difficulties are adequately addressed by a 50 percent disability rating, which specifically considers 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; and difficulty in establishing and maintaining effective work and social relationships. Thus, the weight of the evidence does not support an increased rating in excess of 50 percent. For all the reasons addressed above, the preponderance of the evidence is against the Veteran’s claim for increased rating. Accordingly, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 2. Entitlement to an increased initial rating for bilateral hearing loss The Veteran last received a VA audiological examination in October 2018, and he was subsequently assigned a noncompensable disability rating for bilateral hearing loss. At the January 2021 Board hearing, the Veteran reported that his hearing loss had recently worsened. VA regulations specifically require the performance of a new medical examination when evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Therefore, the Board finds that remand is warranted to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent, and severity of his bilateral hearing loss disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); 38 C.F.R. § 3.327. The matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected bilateral hearing loss disability. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.