Citation Nr: 21012017 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-29 115 DATE: March 3, 2021 ORDER Entitlement to an increased rating of 70 percent for posttraumatic stress disorder (PTSD) beginning March 2, 2016, but not before then, is granted. Entitlement to a rating in excess of 70 percent for PTSD is denied. Entitlement to an earlier effective date of March 2, 2016 for a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an initial compensable rating for bilateral hearing loss, and a rating in excess of 10 percent beginning April 25, 2017 is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Prior to March 2, 2016, the Veteran’s PTSD was manifested by symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances in motivation and mood; these symptoms most nearly approximate a 30 percent rating. 2. Beginning March 2, 2016, the preponderance of the evidence shows that the Veteran’s PTSD symptoms increased and included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, impaired impulse control, and intermittent inability to perform activities of daily living; these symptoms most nearly approximate a 70 percent rating. 3. Beginning March 2, 2016, the Veteran met the schedular requirements for a TDIU and the evidence shows that he was unable to follow a substantially gainful occupation. 4. Prior to April 25, 2017, the Veteran’s bilateral hearing loss manifested as no worse than a Level I in the right ear and a Level II in the left ear; beginning April 25, 2017, the Veteran’s bilateral hearing loss manifested as no worse than a Level IV in the right ear and a Level IV in the left ear. 5. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 70 percent for PTSD beginning March 2, 2016, but not before then, have been met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.130, Diagnostic Code (DC) 9411 (2019).  2. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.130, Diagnostic Code (DC) 9411 (2019).  3. The criteria for an earlier effective date of March 2, 2016 for a TDIU have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 4. The criteria for an initial compensable rating for bilateral hearing loss, and a rating in excess of 10 percent beginning April 25, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.385, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.85, Diagnostic Code (DC) 6100, 4.86 (2019). 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to June 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from July 2015 and May 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2020. A transcript of the hearing is associated with the electronic claims file. I. Increased Rating for PTSD Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.  PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, a 70 percent evaluation 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; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. An evaluation shall be assigned 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 the examination. See 38 C.F.R. § 4.126 (2019). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. Id. It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2.  The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. The Federal Circuit held previously that a Veteran may only qualify for a given disability rating “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, 117 (Fed. Cir. 2013) (“Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the ‘frequency, severity, and duration’ of a Veteran’s symptoms must play an important role in determining his disability level.”).  1. Entitlement to an increased rating of 70 percent for PTSD beginning March 2, 2016, but not before then. 2. Entitlement to a rating in excess of 70 percent for PTSD. The Veteran was first granted service connection for PTSD in a July 2015 rating decision, evaluated at 30 percent, effective October 8, 2014. This rating was based on a July 2015 VA examination wherein the examiner opined that the Veteran’s PTSD was mild to moderate, causing 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’s PTSD symptoms were noted as depressed mood, anxiety, chronic sleep impairment, and mild memory loss. While the examiner also noted disturbances of motivation and mood, the examiner assessed that the overall impact of the Veteran’s symptoms on his functioning was occupational and social impairment with occasional decrease in work efficiency. The Board finds this functional impairment is consistent with the assigned 30 percent rating. In fact, at his August 2020 Board hearing, the Veteran testified that he was “fine with the disability ratings.” However, on March 2, 2016, the Veteran presented for an initial behavioral health consultation at a VA facility wherein he stated that he “has been experiencing increased irritability and tearfulness. He continues to experience nightmares and strange dreams. He also has noticed increased social isolation. He is also experiencing increased road rage. No concerns about his appetite. Describes mood as ‘angry.’ Decreased libido.” It was noted that the Veteran was currently taking Effexor 75mg daily, but he agreed to speak with his primary care physician about an increase in his dosage to 150mg daily. It was also noted that the Veteran accepted a referral to the PTSD program for further evaluation and treatment. Additional treatment records noted that by April 2016, the Veteran’s Effexor had been increased to 150mg daily. In June 2016, the Veteran’s wife provided a statement noting that in November the Veteran had what she would consider “a complete breakdown.” She noted that a similar breakdown occurred in March. The Veteran’s wife also noted more angry outbursts, yelling, an inability to partake in large family gatherings, the Veteran not wanting to be with new people, and increased forgetfulness. The Veteran was given another VA examination for his PTSD in May 2017. Here, the examiner opined that the Veteran suffered from occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner listed the Veteran’s PTSD symptoms as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, impaired impulse control, and intermittent inability to perform activities of daily living. Under behavioral observations the examiner noted “Veteran reports increased levels of anxiety and depression over the last year. He reported that in November of 2016 was the last time he experienced fleeting suicidal ideation. He endorsed symptoms of irritability, yelling, and screaming at others. He feels this has worsen [sic] since his last C&P examination. His wife provided a buddy statement in support of his claims that his PTSD symptoms have worsen [sic]. No symptoms of psychosis noted.” Finally, under remarks section, the examiner notes “Veteran and his wife both indicated increased symptoms of PTSD (depression, anxiety, irritability, dissociation, avoidant behaviors). Veteran himself endorsed fleeting suicidal ideation. He did not have any psychiatric hospitalizations. Veteran’s PTSD is having at least a moderate impact upon his psychosocial and occupational functioning.” In a May 2017 rating decision, the RO increased the Veteran’s PTSD evaluation up to 70 percent, effective May 3, 2017, the date of his most recent VA examination. While the Board agrees that the Veteran’s current PTSD symptoms most nearly approximate a 70 percent rating, the Board disagrees with the effective date of the evaluation. As noted above, it is factually ascertainable that the Veteran was suffering from increased PTSD symptoms from March 2, 2016, when he went to a VA facility for help. Moreover, his medication dosage was doubled the next month in an attempt to better control his worsening symptoms. Accordingly, entitlement to an increased rating of 70 percent for PTSD beginning March 2, 2016, but not before then, is granted. As noted above, in order for a 100 percent rating to be warranted, the Veteran must have total occupational and social impairment with symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, and/or be a persistent danger to hurting self or others. A review of the record does not support a finding that the Veteran is suffering from any of these symptoms. The May 2017 VA examiner noted the Veteran to be oriented times three with flat affect and fair eye contact. She only found his PTSD symptoms to be having at least a moderate impact on his psychosocial and occupational functioning. Moreover, as also noted above, the Veteran testified at his August 2020 hearing that he was satisfied with his current disability ratings, but agreed to a full review of the record stating “No, like I said, I’m, I’m kind of happy with the main stuff. I mean, if you can do something better, that’s fine, but the thing I really wanted to get done, to get on record is that I did not deny tinnitus ever.” As the record does not support a finding of total occupational and social impairment, a 100 percent rating is not warranted for the Veteran’s PTSD. Accordingly, entitlement to a rating in excess of 70 percent for PTSD is denied. 3. Entitlement to an earlier effective date of March 2, 2016 for a TDIU. The Veteran first applied for a TDIU in May 2017, following a rating decision of the same month wherein the RO increased his PTSD evaluation to 70 percent, effective May 3, 2017. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As decided above, based on a review of evidence, the Veteran’s effective date for a rating of 70 percent for his PTSD should have been March 2, 2016. In a July 2017 rating decision, the RO granted a TDIU effective May 3, 2017, the date that the Veteran first met the schedular requirements for such. As the Veteran has been granted an earlier effective date of March 2, 2016 for the award of a 70 percent rating for his PTSD, the Board notes that the Veteran also first met the schedular requirements for a TDIU on that date. At his August 2020 Board hearing, the Veteran testified that he stopped working in 2011 due at least in part to his service-connected disabilities. The Veteran went on to testify “I was having some problems at work and they semi-sort of asked me to leave, I guess.” “I guess it was that or get fired or something.” As noted above, the Veteran’s PTSD symptoms increased in March 2016, including increased irritability, social isolation, and anger. Resolving reasonable doubt in favor of the Veteran, these increased symptoms prevented him from securing and following a substantially gainful occupation. Accordingly, entitlement to an earlier effective date of March 2, 2016, for a TDIU is granted. II. Increased Rating for Bilateral Hearing Loss Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). 4. Entitlement to an initial compensable rating for bilateral hearing loss, and a rating in excess of 10 percent beginning April 25, 2017. The Veteran was granted service connection for bilateral hearing loss in a July 2015 rating decision, evaluated at 0 percent, effective October 8, 2014. The Veteran has appealed this evaluation up to the Board. The Veteran was first given a VA examination for his bilateral hearing loss in June 2015. The results from this examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 45 55 55 65 LEFT X 50 55 65 70 Based on these results, the average puretone threshold was 55 decibels for the right ear and 60 decibels for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 96 percent for the right ear and 92 percent for the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level II Roman numeral designation for the left ear. When the Level I and Level II designations are applied to Table VII, the result is a 0 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. Thus, this testing results in a rating equal to a noncompensable rating. The Veteran was given another VA examination for his bilateral hearing loss in April 2017. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 50 55 65 65 LEFT X 50 55 70 70 Based on these results, the average puretone threshold was 59 decibels for the right ear and 61 decibels for the left ear. 38 C.F.R. § 4.85(d). The audiologist found that a word discrimination test was inappropriate for this Veteran due to language difficulties, cognitive problems, inconsistent word recognition scores, ect. “that make combined use of puretone average and word recognition scores inappropriate.” When an examiner certifies that the use of a speech discrimination test is inappropriate, Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Applying the Veteran’s puretone threshold values to Table VIa, the result is a Level IV Roman numeral designation for the right ear and a Level IV Roman numeral designation for the left ear. When the Level IV and Level IV designations are applied to Table VII, the result is a 10 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. Thus, these testing results are consistent with the Veteran’s increased rating to 10 percent, effective April 25, 2017, the day of the audiological examination. The Board has considered the Veteran’s lay statements that he cannot understand words being spoken by his wife and that in crowds it is almost impossible for him to understand when someone is talking. The Veteran is competent to report these symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, VA’s rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. Additionally, the rating schedule has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366, 368-69 (2017) (holding that “the rating criteria for hearing loss contemplate functional effects of decreased hearing and difficulty understanding speech in an everyday work environment” which “are precisely the effects that VA’s audiometric tests are designed to measure”). The record does not contain any other audiological testing results appropriate for rating purposes. The Board notes that the Veteran provided audiograms from a private audiologist dated in 2011, but this testing was not completed during the appellate period, nor is there any evidence that the Maryland CNC speech discrimination test was used. Moreover, the Veteran has testified that he is satisfied with his current disability ratings. The preponderance of the evidence is against a compensable rating for the Veteran’s bilateral hearing loss prior to April 25, 2017. However, beginning April 25, 2017, a rating of 10 for bilateral hearing loss, but no more is warranted. Accordingly, entitlement to an initial compensable rating for bilateral hearing loss, and a rating in excess of 10 percent beginning April 25, 2017 is denied. III. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for tinnitus. The Veteran first requested service connection for tinnitus in October 2014. The claim was denied in a July 2015 rating decision, wherein the RO noted that the Veteran denied experiencing any symptoms of tinnitus or ringing in his ears during his June 2015 audio evaluation. The Veteran appealed this issue up to the Board. The Veteran was given another VA examination for his hearing loss and tinnitus in April 2017. Here, the examiner found a diagnosis of recurrent tinnitus, noting that the Veteran reported a constant bilateral hissing tinnitus that fluctuates in volume. However, the examiner opined that the Veteran’s tinnitus was less likely than not caused by or the result of his military noise exposure. As rationale for her opinion the audiologist wrote “The Veteran’s service medical records are silent for any reports, diagnoses, or treatments for tinnitus. The Veteran separated from military service in 1970. He has denied tinnitus as recently as a 6/29/2015 compensation and pension examination here at the Syracuse VA audiology service. Therefore, a link to military service cannot be established and it is felt that it is not at least as likely as not that military noise exposure contributed to the Veteran’s tinnitus. It is more likely that Veteran’s post-service occupational and recreational noise exposure contributed to his current tinnitus.” The Veteran testified at a Board hearing in August 2020, arguing that he never denied experiencing tinnitus and that the June 2015 audiologist’s report was incorrect. The Veteran specifically testified “I told them from the very start I had the buzzing, ringing in my ears.” A review of the records shows that the Veteran served in excavating occupations while in the military. In fact, at the June 2015 audiological examination, the audiologist noted that the Veteran worked support in Vietnam for 19 months, “Equipment operator working with bulldozer, dump trucks, fuel truck, earth move/scraper, tow truck, wrecker. He states that no hearing protection was worn while in the military.” The examiner also listed the Veteran’s pre and post military noise exposure, showing minimal exposure during that time without the use of hearing protection. While the April 2017 VA examiner provided a negative nexus opinion, the Board finds that his opinion was based on inaccurate information noted in the June 2015 VA examination. As the Veteran has previously been granted service connection for bilateral hearing loss and tinnitus is a known symptom associated with such, and he has significant military noise exposure, resolving reasonable doubt in favor of the Veteran, entitlement to service connection for tinnitus is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.