Citation Nr: 21012264 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-05 353 DATE: March 3, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted throughout the entire period under appeal, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is dismissed. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial compensable disability rating for hypertension is remanded. Entitlement to service connection for a gastrointestinal disability, to include as secondary to service-connected PTSD is remanded. INTRODUCTION The Veteran served on active duty from February 1971 to March 1974. He served in the Republic of Vietnam and was awarded the Combat Infantryman’s Badge. When this case was most recently before the Board in June 2018 the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. FINDINGS OF FACT 1. During the entire period on appeal, the occupational and social impairment from the Veteran’s PTSD has most nearly approximated total. 2. A TDIU is considered a lesser benefit than a 100 percent schedular rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. 3. Throughout the entire rating period, the Veteran’s hearing impairment has been no worse than Level III in the right ear and Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating of 100 percent for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). 2. Entitlement to a TDIU rating is dismissed as moot. VAOPGCPREC 6-99; 64 Fed. Reg. 52, 375 (1999). 3. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2020), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has been afforded several VA examinations to address the severity of his service-connected PTSD and bilateral hearing loss. He has not asserted, and the evidence of record does not show, that his disabilities have increased significantly in severity since his most recent examinations. The Veteran was also afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined to do so. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims decided herein; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran’s claims. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). Factual Background and Analysis PTSD Rating and TDIU Entitlement The RO has assigned several staged ratings for the Veteran’s PTSD throughout the period under appeal. The Board disagrees with the assigned ratings, and for reasons explained below, the Board finds a 100 percent schedular rating is warranted throughout the entire appeal period. PTSD is rated under the General Rating Formula for Mental Disorders. In pertinent part, it provides the following: A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication……………………………………………………………...0 Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication...10 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events)…………30 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.............................................................................................................50 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.........................70 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...........100 38 C.F.R. § 4.130, Diagnostic Code 9411. Critically, the Board observes the rating criteria for a 70 percent rating for PTSD indicates an array of symptoms, which are likely sufficient to cause impairment and deficiencies in most areas of life functioning, to include work, school, family relations, judgment, thinking, or mood. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon most areas of life functioning. A higher 100 percent rating is warranted when the evidence indicates total impairment. 38 C.F.R. § 4.103, Diagnostic Code 9411 (2020). The symptoms considered in determining the level of impairment under the Rating Schedule for PTSD are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board has carefully reviewed the Veteran’s treatment reports from the Omaha VA Medical Center, as well as his psychiatric summary from the Omaha Vet Center. Further, the Board has carefully reviewed a private psychiatric evaluation and disability benefit questionnaire provided by Dr. W.S. in December 2015. The Board has also thoroughly reviewed the results of VA examinations conducted in June 2010, May 2014, February 2015, and June 2020. Finally, the Board has prudently considered the Veteran’s own statements. In sum, those records show the Veteran has not received consistent mental health care throughout the period of this appeal. However, the above-noted evidence shows the Veteran has experienced several significant symptoms and impairments, which include: depressed mood, anxiety, panic attacks more than weekly, suspiciousness, impaired memory and concentration, impaired judgment, disturbances of motivation and mood, impaired work and social relationships, difficulty with work and social relationships, difficulty with stressful circumstances, poor impulse control, isolation, irritability, delusional flashbacks, emotional flatness, poor communication, hypervigilance, sleep disturbances, a persistently negative emotional state, neglect of personal appearance and hygiene, and inability to perform activities of daily living. The evidence also indicates the Veteran has not worked since June 2011 largely as a result of his PTSD. Additionally, the evidence indicates his PTSD has significantly affected his family and social functioning. Further, the Veteran’s private psychiatric provider has indicated the Veteran would not be able to live independently because of his PTSD. In this case, the copious evidence plainly establishes the Veteran’s psychiatric manifestations have resulted in deficiencies in all areas of life functioning. Specifically, his symptoms have significantly impaired his ability to work, caused him marked social impairments, caused deficiencies in judgment, and resulted in severe mood impairments. As noted above, the 100 percent evaluation criteria does not indicate total occupational and social preclusion; rather, it merely states a veteran must have total impairment. The Board again notes a 70 percent rating is warranted when psychiatric manifestations cause impairment in most areas of life functioning; however, this Veteran’s psychiatric manifestations have resulted in impairments in all areas of life. As such, the Board has afforded the Veteran the benefit of the doubt and finds his disability picture more nearly approximates the criteria necessary for a 100 percent rating for the entire period on appeal. In closing, the Board notes that a TDIU is considered a lesser benefit than a 100 percent schedular rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52, 375 (1999). As such, this issue is dismissed, because a 100 percent schedular rating has been assigned throughout the entire appeal period. Bilateral Hearing Loss Rating Disability ratings for hearing loss are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). 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). “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 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). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz ) is 55 decibels or more, 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. Each ear will be evaluated separately. (b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. By way of background, the Veteran initiated a claim for service connection for bilateral hearing loss in May 2010. In the February 2015 rating decision on appeal, a noncompensable disability rating was assigned. In response to his claim, the Veteran was afforded an initial VA audiological evaluation in July 2010; the examiner reviewed the evidence of record and noted the Veteran’s history. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 30 30 35 LEFT 10 10 30 35 30 Speech recognition was 100 percent in the right ear and 100 percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and Level I Roman numeral designation for the left ear. Application of a Level I and Level I designation to Table VII results in a noncompensable rating. The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment. The Veteran was afforded a second VA audiological evaluation in October 2011; the examiner also reviewed the evidence of record and noted the Veteran’s history. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 30 35 35 LEFT 10 10 30 30 30 Speech recognition was 94 percent in the right ear and 98 percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and Level I Roman numeral designation for the left ear. Again, application of a Level I and Level I designation to Table VII results in a noncompensable rating. The readings reported in this evaluation also did not meet the requirements for evaluation as an exceptional pattern of impairment. The Veteran was afforded a third VA examination in December 2014. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 30 30 40 LEFT 15 15 30 35 40 Speech recognition was 82 percent in the right ear and 96 percent in the left ear. Applying the values above to Table VI results in a Level III Roman numeral designation for the right ear and Level I Roman numeral designation for the left ear. Application of a Level III and Level I designation to Table VII results in a noncompensable rating. The readings reported in this evaluation also did not meet the requirements for evaluation as an exceptional pattern of impairment. The Veteran underwent his most recent VA examination in September 2020. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 35 30 40 LEFT 20 10 30 35 45 Speech recognition was 88 percent in the right ear and 88 percent in the left ear. Applying the values above to Table VI results in a Level II Roman numeral designation for the right ear and Level II Roman numeral designation for the left ear. Application of a Level II and Level II designation to Table VII results in a noncompensable rating. The readings reported in this evaluation also did not meet the requirements for evaluation as an exceptional pattern of impairment. The Court has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In accordance with this decision, the above-noted VA examiners chronicled the Veteran’s reports of listening to his television loudly, and that his spouse has commented on his “selective hearing.” In addition, the examiner noted the Veteran’s reports of people needing to repeat themselves, and his difficulty hearing with background noise. On review of the file, it is evident the criteria for a compensable rating under Diagnostic Code 6100 are not met. Although the audiological evaluations clearly show the Veteran has hearing loss, the hearing loss has not yet met the compensable level under the rating schedule. Thus, a compensable rating for bilateral hearing loss is not warranted under the schedular criteria. REASONS FOR REMAND Although further delay is unfortunate, the Board finds additional development is necessary prior to final adjudication of this matter. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of the above-noted June 2018 remand, the Board specifically instructed to RO to obtain VA examinations to assess the Veteran’s hypertension and gastrointestinal disabilities from a Cardiologist and Gastroenterologist respectively. In an August 2020 memorandum, the RO acknowledged that examinations conducted earlier that month were not in compliance with the Board’s instructions; however, the RO failed to obtain VA examinations that were in compliance with the June 2018 remand instructions. As such, these issues must again be remanded in order to obtain substantial compliance with the Board’s prior instructions. Accordingly, these matters are REMANDED for the following actions: 1. The Veteran should be afforded an examination by a VA Gastroenterologist with sufficient expertise to determine the etiology of his claimed gastrointestinal disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that any gastrointestinal disability diagnosed during the pendency of this claim: a) originated during the Veteran’s period of active service or is otherwise etiologically related to his active service, to include his herbicide exposure and consumption of contaminated food or water therein; b) was caused by his service-connected PTSD; or c) was worsened to any degree by his service-connected PTSD. The examiner must provide a complete rationale for any proffered opinion. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements, as well as the medical literature provided by the Veteran indicating a relationship may exist between gastrointestinal conditions and PTSD. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Also, afford the Veteran a VA examination by a Cardiologist with sufficient expertise to fully assess the severity of the Veteran’s service-connected hypertension. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. Additionally, the examiner is asked to note the results of repeated blood pressure tests and the predominant range of blood pressure readings documented in the Veteran’s record. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Following a complete review of the Veteran’s medical history, the examiner is asked to provide a retrospective opinion as to whether the Veteran at least as likely as not (a 50 percent probability or greater) had a history of diastolic blood pressure predominantly 100 or more prior to medication intervention. In this respect, the examiner is asked to specifically consider the Veteran’s May 2014 VA examination indicating his average post-medicated blood pressure was 166/103. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.