Citation Nr: 21022924 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-15 698A DATE: April 19, 2021 ORDER An increased disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from October 1, 2018 is denied. An initial compensable disability rating for hearing loss is denied. FINDINGS OF FACT 1. During the entire increased rating period on appeal, from October 1, 2018, the severity, frequency, and duration of the symptoms of the service connected PTSD did not manifest as total occupational and social impairment. 2. For the entire initial rating period on appeal, from August 29, 2018, the Veteran’s bilateral hearing loss manifested as no more than level I hearing in the left ear and level I hearing in the right ear. CONCLUSIONS OF LAW 1. For the entire increased rating period on appeal, from October 1, 2018, the criteria for a disability rating in excess of 70 percent for PTSD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. For the entire initial rating period on appeal, from August 29, 2018, the criteria for a compensable disability rating for hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to April 1969. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In the June 2019 substantive appeal, via VA Form 9, the Veteran did not indicate whether he wished to have a hearing before the Board. Nonetheless, in a January 2021 written statement, the Veteran indicated that he wished “to withdraw my request for a hearing.” As such, the Board finds there is no hearing request before it at this time. 1. Increased Rating for PTSD For the entire increased rating period on appeal, from October 1, 2018, the Veteran is in receipt of a 70 percent disability rating for PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. PTSD is rated using the General Rating Formula for Mental Disorders outlined in 38 C.F.R. § 4.130. The 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. The next higher rating than a 70 percent is a 100 percent disability rating. For a 100 percent disability rating to be warranted, the evidence must show 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 minimum personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If 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, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are “like or similar to” those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). Having reviewed the evidence of record, lay and medical, the Board finds that, for the entire increased rating period on appeal, the severity, frequency, and duration of the symptoms of the service connected PTSD did not manifest as total occupational or social impairment. The Veteran was examined for PTSD by VA in October 2018. The examiner noted that the Veteran suffered from the following symptoms: occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and impaired impulse control. Significantly, the Veteran conveyed remaining married to his wife of over 30 years, although the relationship was strained, and having a good relationship with his daughters and grandchildren. VA treatment records from November 2018 through October 2019 report that some of the Veteran’s symptoms may even be less severe than they were at the time of the October 2018 examination. Throughout the entire period, the Veteran is described as well-groomed with good hygiene; fully oriented to time and place; free of suicidal ideation; possessed of generally normal affect albeit with some flat emotions; possessed of goal-oriented, linear, and logical thinking process; and possessed of good judgment and insight. In most of the records from this period, the Veteran is noted as having avoidance, hypervigilance, exaggerated startle, depression, irritability, fatigue, anxiety, and mild memory loss. Examining all the evidence of the record, the Board finds that for the entire increased rating period on appeal, from October 1, 2018, the PTSD has manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and impaired impulse control. Consequently, the current PTSD disability picture most resembles that contemplated by a 70 percent rating, rather than a 100 percent rating, under 38 C.F.R. § 4.130. In support of this finding, the Board notes that the VA examiner in October 2018 specifically found that the severity, frequency, and duration of the Veteran’s PTSD symptoms resulted in deficiencies in most areas, and not total occupational and social impairment. Further, a review of the evidence of record does not indicate that the Veteran has displayed symptoms commonly associated with the 100 percent rating criteria. Most significantly, as discussed above, by the Veteran’s own admission he remains married and has a good relationship with his daughters and grandchildren; therefore, it cannot be said that the Veteran’s social impairment is total. After a review of all the evidence of record, the Board finds that, for the entire increased rating period on appeal, from October 1, 2018, the PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and impaired impulse control. When considering the Veteran’s social relationships and the aforementioned symptomatology, the evidence does not support that the Veteran has total occupational and social impairment. Accordingly, the Board finds that, for the entire increased rating period on appeal, from October 1, 2018, the criteria for an increased disability rating in excess of 70 percent for PTSD are not met. 38 C.F.R. §§ 4.3, 4.7, 4.130. 2. Initial Rating for Hearing Loss For the entire initial rating period on appeal, the Veteran is in receipt of a noncompensable (0 percent) disability rating for service-connected hearing loss. Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, 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. See 38 C.F.R. § 4.86(b). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, in addition to providing objective test results, a VA audiometric examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321(b) “does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.” The Court also noted that VA’s policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information. Id. The Veteran received an audiometric examination in October 2018. On this examination, the Puretone threshold results in the frequencies of 1000, 2000, 3000, and 4000 Hz in the right ear were 10, 20, 40, and 45 decibels, respectively. In the left ear, the results in those same frequencies were 25, 50, 75, and 70 decibels, respectively. Averaged, the Puretone threshold results yielded 28.75 decibels in the right ear and 55 decibels in the left ear. In the October 2018 examination, the Veteran was also given a Maryland CNC speech discrimination test. The speech discrimination results were a score of 94 percent in both the right and left ears. Applying the results of the October 2018 examination to Table VI in 38 C.F.R. § 4.85, the right ear would receive the numeric designation of I, and the left ear would receive a numeric designation of I. Applying these designations to Table VII, the Veteran is entitled to a rating of 0 percent (noncompensable). The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the October 2018 audiometric examination did not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran’s ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears were not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Review of all the evidence of record does not reflect any additional audiometric testing during the initial rating period from August 29, 2018. After a review of all the evidence of record, the Board finds that, for the entire initial rating period on appeal, from August 29, 2018, the Veteran’s bilateral hearing loss manifested as no more than level I hearing in the left ear and level I hearing in the right ear. Accordingly, the Board finds that, for the entire initial rating period on appeal, the criteria for a higher initial disability rating in excess of 0 percent for hearing loss are not met. 38 C.F.R. §§ 4.3, 4.7, 4.85. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issues on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.