Citation Nr: 21022362 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-09 650 DATE: April 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) from September 30, 2011 to August 6, 2020 is granted. Entitlement to a rating in excess of 70 percent for PTSD since August 7, 2020 is denied. FINDINGS OF FACT 1. The evidence is in a state of relative equipoise regarding whether bilateral hearing loss disability is related to combat service in the Republic of Vietnam. 2. From September 30, 2011 to August 6, 2020, PTSD was manifested by symptoms causing occupational and social impairment with deficiencies in most areas but not by symptoms causing total occupational and social impairment. 3. Since August 7, 2020, PTSD has not been manifested by symptoms causing total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1101, 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to a 70 percent rating for PTSD from September 30, 2011 to August 6, 2020 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9411. 3. The criteria for entitlement to a rating in excess of 70 percent for PTSD since August 7, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to April 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the claims file and has been reviewed. The Veterans Law Judge (VLJ) who conducted the hearing has since retired from the Board. In January 2012, the Board offered the Veteran a hearing before another VLJ, but he did not respond to the letter. See 38 C.F.R. § 20.707; Arneson v. Shinseki, 24 Vet. App. 379 (2011). In September 2018 the Board remanded the case for further development. The issues are again before the Board for appellate review. Service connection for bilateral hearing loss disability The Veteran contends that he has bilateral hearing loss disability related to in-service noise exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence in this matter consists of service treatment records (STRs), VA treatment records, lay statements, and a VA examination report dated in March 2012. For the following reasons, a service connection finding is warranted. First, the evidence establishes that the Veteran has a hearing loss disability. This is demonstrated in the March 2012 report, which notes auditory thresholds higher than 40 decibels in each ear. Second, the evidence establishes that the Veteran was exposed to acoustic trauma during service. He served in Vietnam, engaged in combat there, and has been awarded service connection for tinnitus due to acoustic trauma there. Third, the evidence is in a state of relative equipoise regarding whether, as is the case with tinnitus, hearing loss relates to combat service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. On the one hand, certain evidence counters the claim. Service treatment records are negative for hearing loss as is the March 1973 separation report of medical examination. The earliest evidence of record of hearing loss is noted in a June 2011 VA treatment record noting diminished hearing. And in the only opinion of record addressing the claim, the March 2012 VA examiner found it unlikely that hearing loss related to service. The examiner reasoned that the service records showed hearing loss thresholds within normal limits at induction and separation without any significant threshold shift beyond normal variability during military service, nor was there specific evidence of cochlear damage during service. On the other hand, the lay evidence of record supports the claim. The Veteran provided argument and testimony regarding the claimed condition in a March 2014 statement, at his December 2016 Board hearing and in an October 2019 statement. Generally, the Veteran stated that he first perceived hearing loss during service and first sought treatment for that hearing loss in the later part of 1974, although he could not recall where he sought treatment. The Veteran further stated that no audiological examination had been conducted at his March 1973 separation examination and that his service treatment records indicated a greater degree of hearing loss on his entrance to service than on separation and argued that it was not possible for hearing loss to improve with time. For these reasons, the Veteran questioned the separation audiological results. In turn, the Veteran asserted that the March 2012 examiner’s reliance on those measurements was inadequate. In the case of any veteran who engaged in combat with the enemy in active service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b). Based on the foregoing evidentiary background, and in light of the grant of entitlement to service connection for tinnitus based on exposure to acoustic trauma during combat service in Vietnam, the Board cannot find that a preponderance of the evidence is against the claim that current hearing loss disability is due to acoustic trauma during combat service. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Higher initial rating for PTSD The Veteran contends that his PTSD is more severely disabling than represented by the 10 percent rating assigned from September 30, 2011 to December 10, 2015, the 30 percent rating assigned from December 11, 2015 to August 6, 2020, and the 70 percent rating assigned since August 7, 2020. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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; 38 C.F.R. § 4.1. Where 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 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation 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. The Veteran’s PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under the general formula, a 30 percent evaluation is assigned when the evidence demonstrates 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned where 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A rating of 70 percent is assigned 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent schedular evaluation contemplates 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. Id. The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran’s service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the enumerated factors listed in 38 C.F.R. § 4.130, DC 9411. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id. In a September 2011 VA treatment record, the Veteran was noted to avoid crowds and to prefer to be alone. He was employed as a truck driver which was the only job that he could hold consistently. The Veteran reported episodic anger outbursts and was concerned about the effects of his symptoms on his relationship with his wife. A December 2011 VA treatment record noted that the Veteran experienced anger and intrusive thoughts and had difficulty falling or staying asleep. The Veteran was concerned about his PTSD symptoms causing distress in his relationships with others and isolation. On VA examination in March 2012, the Veteran was noted to report chronic anxiety, intrusive memories, being triggered by hearing about current combat activities, feeling on guard, on edge, and hypervigilant, liking to be by himself and being somewhat detached and irritable at times. These symptoms were reported to occur “at least several times per week.” The Veteran also reported chronic sleep disturbance at least several nights per week with difficulty falling asleep, staying asleep, and midnight awakening associated with anxiety, bad dreams or nightmares related to combat. The Veteran admitted to being mistrustful, bordering on paranoia at times. He was noted to be working as a truck driver for the past 3 years, was generally performing job tasks satisfactorily and got along with others. However, he was noted to be isolative, and was “not involved in a lot of extracurricular activities.” He was noted to demonstrate a minor working memory deficit on testing. The examiner summarized the level of occupational and social impairment as 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 medication. An April 2012 VA treatment record noted the Veteran reported being distrustful and closed off from others which had impacted his familial relationships and socialization. A September 2014 VA treatment record noted the Veteran was separated from his spouse, which he attributed to his PTSD symptoms, including anger and difficulty with communication. On VA examination in December 2015, the Veteran was noted to report anxiety, chronic sleep impairment and disturbances of motivation and mood. The Veteran was noted to have retired from truck driving in December 2014 due to hypertension and gabapentin use for post-polio symptoms. He remained married to his wife but was “not really involved in any groups outside the home other than attending church.” The examiner summarized the level of occupational and social impairment as 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 medication. In a March 2016 VA treatment record, the Veteran reported not liking to leave the house and double-checking that things were locked. He reported feeling unable to relax in crowds, was socially withdrawn and spent most of the day in his house. He did not trust people and was unable to open up. He reported irritability, mind racing, sleep disturbances, hypervigilance, anhedonia, emotional detachment, and low sex drive. He reported only being able to work jobs that kept him away from people. At his December 2016 Board hearing, the Veteran argued that the evidence in his case showed “reduced reliability and productivity” to support a 50 percent rating, to include disturbances in motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The Veteran cited to evidence discussed above in support of his contention that his PTSD symptoms interfered with his ability to maintain employment in fields where he could not be alone and interfered with his ability to develop and maintain social relationships with friends and family. In a December 2016 letter, the Veteran’s wife reported that throughout their relationship the Veteran was “a loner” and did not have close friendships or any real relationships and was not able to be intimate with his own family. She reported the Veteran was easily irritated and overwhelmed “for no discernible reason.” She noted that throughout their relationship, the Veteran had difficulty maintaining a job unless he could be alone all day such as delivering packages or long-distance truck driving. On VA examination in August 2020, the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner specifically noted the Veteran was easily irritable, and could be verbally abusive, was obsessive about home security, and would often not shower daily. The Veteran was noted to be “not good with relationships” and to avoid gatherings. He was “not close to his child.” The Veteran was noted to have retired in 2016, but previously “had a difficult time working with other people” and “had been fired or quit several jobs as he could not work with other people.” The examiner summarized the level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking and/or mood. With regard to the period from September 30, 2011 to August 6, 2020, the Board finds that a 70 percent rating is warranted. The VA examinations, VA treatment records, and statements from the Veteran and his wife pertinent to this period present symptoms of hypervigilance, to include repeated checking of locks, unprovoked irritability, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Significantly, there is ample evidence throughout this period that the Veteran’s PTSD symptoms produced deficiencies in “most areas” that is, the areas of work, family relations and mood. Specifically, throughout the period on appeal, the Veteran has reported being limited to work which would allow him to be alone, with significant difficulties in any occupation that required him to work with others. The record reveals difficulties maintaining relationships with the Veteran’s wife and child and an inability to establish or maintain any relationships outside his immediate family. Furthermore, throughout this period the record demonstrated numerous deficiencies in the area of mood, such as unprovoked irritability, depression and anxiety, and there is also evidence of intrusive thoughts and paranoia. The Veteran was not in school during this period, and the record does not specifically describe deficiencies in the area of judgment. On balance, this evidence is at least in equipoise as to whether the PTSD symptoms caused deficiencies in “most” areas throughout the period on appeal. It is significant that, while the March 2012 and December 2015 VA examiners did not find deficiencies in most areas, the pertinent VA treatment records and March 2012 and December 2015 VA examination reports show symptoms which are substantially similar to those reported at the August 2020 VA examination. Notably, in formulating her evaluation, the August 2020 VA examiner cited to retrospective evidence such as the Veteran’s long history of marital difficulties due to his mood swings and inability to maintain employment which required him to be around others. These symptoms are evident from the earliest available evidence pertinent to the appeal period, specifically the September 2011 VA treatment record which noted the Veteran was employed as a truck driver which was the only job that he could hold consistently and exhibited episodic anger outbursts toward his wife. The Veteran’s PTSD symptoms do not more nearly approximate the severity of symptoms stipulated as supporting a 100 percent rating at any time during the appeal period. While the August 2020 VA examiner noted intermittent inability to perform the activities of daily living, the only specific deficiency in this regard was described as “often will not shower daily.” The evidence preponderates against finding that this or any other PTSD symptoms caused total occupational and social impairment. While the Veteran has been reported to exhibit unprovoked anger outbursts, there is no indication that he has posed a danger to himself or others. Significantly, while the Veteran’s PTSD symptoms precluded him from working in an environment which required interaction with others, he was able to maintain employment as a truck driver until his retirement in 2016, which was unrelated to his PTSD symptoms. The Veteran has not asserted, nor does the medical evidence indicate that he has been rendered unemployable solely due to his PTSD symptoms at any time during the appeal period. While the Veteran has reported significant difficulty establishing and maintaining family relationships and friendships, he has remained married to his wife throughout the appeal period. Indeed, the evidence shows that the has remained coherent, oriented, and cognitively sound throughout the appeal period. As such, the evidence preponderates against finding total occupational and social impairment here. (continued on the next page) Accordingly, based on the foregoing evidence, entitlement to a 70 percent rating for PTSD from September 30, 2011 to August 6, 2020 is granted and a rating in excess of 70 percent at any time during the appeal period is denied. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.