Citation Nr: 21021430 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-05 600A DATE: April 13, 2021 ORDER Entitlement to an initial rating of 50 percent for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity is remanded. Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus is remanded. Entitlement to a rating in excess of 30 percent for service-connected diabetic retinopathy is remanded. Entitlement to a rating in excess of 10 percent for service-connected coronary artery disease is remanded. Entitlement to a compensable rating for service-connected erectile dysfunction is remanded. Entitlement to a rating in excess of 10 percent for service-connected left zygomatico-maxillary complex fracture is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, his PTSD resulted in occupational and social impairment with reduced reliability and productivity due to the symptoms of depression, anxiety, difficulty in maintaining work and social relationships, and irritability. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1963 to August 1967, to include service in Vietnam. He was afforded a hearing before the undersigned in November 2020. A copy of the transcript is of record. Increased Rating Disability evaluations are determined by the application of VA’s Schedule of Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding the degree of disability, the benefit of the doubt shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). The Veteran asserts that his service-connected PTSD symptoms are more severe than his initial rating reflects. During his November 2020 hearing, he testified that his PTSD symptoms manifest as decreased cognitive ability, difficulty sleeping, interference with socializing, and nightmares. A February 2017 rating decision granted service connection for PTSD with a 30 percent disability rating effective May 19, 2015. The Veteran’s PTSD is rated under Diagnostic Code 9411 pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent rating contemplates 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). Id. A 50 percent 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 such as, 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. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. 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. The rating agency shall 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 the examination. 38 C.F.R. § 4.126 (a). 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. 38 C.F.R. § 4.126 (b). 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). 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. 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). A June 2015 private evaluation noted the Veteran recalled traumatic experiences during active service, and the examiner diagnosed PTSD. The Veteran reported recurrent intrusive thoughts and flashbacks, recurrent nightmares, and nightmares. The examiner also noted cognitive and physiological responses to trauma cues. The Veteran described avoidance of others associated with traumatic experiences, feelings of detachments and estrangement, and restricted affect. The examiner noted trouble with insomnia, irritability, anger outbursts, hypervigilance, exaggerated startle response, and concentration problems. The examiner further noted anxiety attacks occurring three to four times weekly. The examiner did not find the Veteran had suicidal ideation, hallucination, illogical judgment or speech, or poor hygiene. An October 2015 VA examination report determined the Veteran’s PTSD symptoms manifested as occupational and social impairment due to mild or transient symptoms. The examiner noted the Veteran had anxiety, but was well oriented, polite, timely, and had coherent thought and speech. The Veteran denied suicidal ideation. An August 2018 VA examination report determined the Veteran’s PTSD symptoms manifested as occupational and social impairment due to mild or transient symptoms. The examiner noted symptoms of anxiety and depressed mood. The examiner further noted elevated anxious arousal, intrusive experiences, avoidance, relational avoidance, and disassociation. A June 2020 disability questionnaire submitted by a private physician noted PTSD symptoms of insomnia, low mood and motivation, and fatigue. The examiner opined the PTSD symptoms manifested as occupational and social impairment with reduced reliability and productivity. The Veteran reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks which occur more than once a week, sleep impairment, flattened affect, affected speech, difficulty understanding complex commands, disturbance of mood, difficulty adapting to stressful circumstances, inability to establish and maintain relationships, and spatial orientation. Although the examiner noted past suicidal ideation, the examiner detailed that the Veteran did not have any suicidal thoughts within the past eight months. The examiner concluded by opining that the Veteran met the criteria for a 50 percent disability evaluation under the General Rating Formula. Medical treatment notes of record, including May 2020 notes from the Veteran’s private psychologist, reflect similar symptoms of PTSD as reported by the VA examination reports of record. Treatment records detail that during the appeal period the Veteran’s PTSD symptoms manifested as anxiousness, nightmares, avoidance, hypervigilance, disturbance of mood, panic attacks, and difficulty managing his PTSD symptoms since his regular psychologist retired. Records also reflect the Veteran’s use of medication to control his symptoms. The Board has considered all evidence of record and finds that, resolving all doubt in favor of the Veteran, his service-connected PTSD warrants a rating of 50 percent for the entire appeal period. Medical treatment records as well as VA examiners noted PTSD symptoms of depressed mood, anxiety, chronic sleep impairment, nightmares, irritability, and panic attacks. Although the October 2015 and August 2018 VA examiner opined the Veteran’s PTSD symptoms manifested as occupational and social impairment due to mild or transient symptoms, the Board finds that the totality of the Veteran’s symptoms is best characterized by occupational and social impairment with reduced reliability and productivity. Subsequently, no objective medical evidence of record for the appeal period reflects the Veteran’s PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas, and an initial rating in excess of 50 percent is not warranted. Specifically, there is no evidence that the Veteran had significant difficulty with speech, insight, or judgment. He did not have delusions or hallucinations. All of the Veteran’s examination reports of record fail to record any suicidal thoughts or ideations during the appeal period. Additionally, his medical treatment notes all reported him as alert, oriented, with clear thought and rationale. No VA examiner or treating physician noted severe symptoms such as suicidal ideation, severe obsessive ritual, or serious impairment in social or occupational functioning. In reaching these conclusions, the Board notes that the Veteran is competent to report symptoms of his PTSD, but not to identify a specific level of disability. The medical findings in this case directly address the criteria under which this disability is evaluated, and the objective medical evidence is accorded greater weight than the subjective complaints of increased symptomatology. Therefore, the preponderance of the evidence supports an initial rating of 50 percent for service-connected PTSD, but no higher, for the appeal period. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that his bilateral hearing loss is related to active service. Specifically, he asserts that his military occupation as an aviation warfare technician during the Vietnam war exposed him to acoustic trauma which caused his bilateral hearing loss. A September 2015 VA medical opinion provided a negative etiologic opinion, and as rationale, the examiner opined that review of the Veteran’s service treatment records revealed no threshold shift in hearing from service entrance to service discharge. The Board finds this opinion to be inadequate, as the examiner failed to specifically address and/or consider the Veteran’s competent and credible statements of noise exposure as a direct cause of his bilateral hearing loss. Moreover, the examiners reliance on the fact that the Veteran’s enlistment and separation auditory examinations contained normal results is an insufficient premise, as the fact that hearing loss was not demonstrated during active duty is not fatal to the Veteran’s claim, and evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection of hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board also notes that the examiner failed to provide any audiometric measurements to determine whether or not the Veteran has bilateral hearing loss for VA purposes. On remand, the Veteran should be afforded a new examination. 2. Entitlement to an initial rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity is remanded. 3. Entitlement to an initial rating in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity is remanded. 4. Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus is remanded. 5. Entitlement to a rating in excess of 30 percent for service-connected diabetic retinopathy is remanded. 6. Entitlement to a rating in excess of 10 percent for service-connected coronary artery disease is remanded. 7. Entitlement to a compensable rating for service-connected erectile dysfunction is remanded. 8. Entitlement to a rating in excess of 10 percent for service-connected left zygomatico-maxillary complex fracture is remanded. The Veteran next asserts that his service-connected bilateral lower extremity peripheral neuropathy, diabetes mellitus, diabetic neuropathy, coronary artery disease, erectile dysfunction, and left maxillary fracture is more severe than his current ratings reflect. In March 2021 correspondence, the Veteran’s representative requested the Veteran be afforded examinations for his service-connected disabilities on appeal as his most recent examinations fail to represent the current severity of each disability. Generally, remands for VA examinations are not warranted based on the passage of time alone; however, in this case, the Board observes that the Veteran’s most recent VA examination for any of his service-connected disabilities on appeal was conducted in October 2015. Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007). These examinations do not reflect the worsening of symptoms of weakened leg movement, erratic heartbeat, and use of an insulin replacement as reflected in the Veteran’s medical treatment records. Hence, a remand is necessary to schedule a VA examination to determine the current severity of the Veteran’s service-connected disabilities on appeal and to obtain and associate with the electronic claims file updated medical treatment records. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. 10. Entitlement to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded. In addition to the foregoing, the Board must remand the Veteran’s claim of entitlement to a TDIU and DEA benefits as the claims are inextricably intertwined with the claims which are being remanded by the Board. Although the Veteran does not meet the schedular criteria for a grant of TDIU or DEA benefits at this time, this may change if he is granted service connection for bilateral hearing loss or an increased rating for any of his service-connected disabilities on appeal. Thus, the Veteran’s request for a TDIU and DEA benefits should be considered together with the remanded claims. The matters are REMANDED for the following action: 1. Schedule a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran’s bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the VA examiner is asked to respond to the following inquiry: Is it at least as likely as not (a 50% or greater probability) that the Veteran’s bilateral hearing loss was either incurred in, or otherwise related to, the Veteran’s active duty service? While making his/her determination, the examiner must consider the Veteran’s contentions of exposure to acoustic trauma during active service in Vietnam because of his military occupation as noted in his service treatment and military personnel records. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner cannot provide an opinion without resorting to speculation, then he or she must provide a complete and thorough rationale as to why an opinion cannot be provided. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to her claim and provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with the record. 3. Then, schedule the Veteran for VA examinations to determine the current level of severity of the Veteran’s service-connected bilateral lower extremity peripheral neuropathy, diabetes mellitus, diabetic neuropathy, coronary artery disease, erectile dysfunction, and left maxillary fracture. The electronic claims file must be made accessible to the examiner(s). All appropriate tests or studies should be completed, and all clinical findings should be reported in detail. A complete rationale must be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report symptoms and that his reports must be considered in formulating the requested opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence that would permit such an opinion to be made. 4. Then readjudicate the claims, to include entitlement to a TDIU and DEA benefits, in light of this and all other additional evidence. If the claims continue to be denied or is not granted to the Veteran’s satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give him and his representative an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claims. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.