Citation Nr: 21027928 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-47 398 DATE: May 7, 2021 ORDER An initial evaluation of 50 percent, but no higher, for service-connected adjustment disorder with depression and anxiety (adjustment disorder) is granted throughout the appeal period. Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left leg disability, to include radiculopathy, claimed as secondary to a service-connected back disability is remanded. Entitlement to an evaluation in excess of 10 percent for a service-connected back disability is remanded. FINDINGS OF FACT 1. An initial evaluation of 50 percent, but no higher, for a service-connected adjustment disorder is granted throughout the appeal period. 2. The Veteran does not have a current bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no higher, for a service-connected adjustment disorder have been approximated. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 2013 to June 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. 1. Increased Evaluation for Service-Connected Adjustment Disorder. The Veteran contends that his symptoms meet the criteria for a higher evaluation for the service-connected adjustment disorder. A July 2017 rating decision granted service connection for an adjustment disorder and assigned a 30 percent evaluation effective May 4, 2017. The Veteran timely filed a notice of disagreement as to the assigned evaluation. During the pendency of the appeal, a February 2021 rating decision granted an increased 50 percent evaluation, effective January 27, 2021. After review of the entire record, the Board finds that the service-connected adjustment disorder more closely approximates the 50 percent evaluation throughout the entire appeal period. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's service-connected adjustment disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9440, the diagnostic code used to rate chronic adjustment disorder. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will also be resolved in the veteran's favor. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.130, Diagnostic Code 9440, a 50 percent rating is assigned for 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 effective work and social relationships. A 70 percent rating is assigned for 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); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to 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 (2002). The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association. 38 C.F.R. § 4.130. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (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." In July 2017, the Veteran underwent a VA examination to determine the etiology and severity of any mental health disabilities. He reported ongoing mood, anxiety, sleep disturbances, and martial conflicts. The VA examiner diagnosed the Veteran with an adjustment disorder, with anxiety. On examination, there was no evidence of tangential thought process, psychotic symptoms including auditory or visual disturbances, or paranoid ideations. The Veteran denied any suicidal or homicidal ideations. The VA examiner noted a depressed mood, anxiety, and flattened affect. The VA examiner indicated the Veteran's adjustment disorder resulted in 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. In January 2021, the Veteran underwent a VA examination to determine the severity of the service-connected adjustment disorder. The Veteran reported an increase in anxiety and depression, difficulty sleeping, scattered thoughts, difficulties at work, and motivation issues. On examination, the VA examiner noted a depressed mood, anxiety, panic attacks that occur more than once a week, and chronic sleep impairment. The VA examiner indicated the Veteran's adjustment disorder resulted in 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. VA treatment records and lay reports throughout the appeal period show continued symptoms of, and treatment for, the service-connected adjustment disorder. Specifically, the Veteran continued to report depression, anxiety, and sleep disturbances. During his November 2019 Board hearing the Veteran reported panic attacks at least once a week which sometimes caused him to call in sick from work. He reported a good relationship with his children and little socializing outside of being a father and working because his service-connected adjustment disorder affected both his motivation and relationships. Based on the foregoing, the Board finds the evidence supports an assignment of a 50 percent evaluation throughout the appeal period for the service-connected PTSD. Specifically, throughout the period on appeal the Veteran's service-connected adjustment disorder has resulted in depression, anxiety, weekly panic attacks, and social isolation. Thus, resolving all doubt in the Veteran's favor, the Board finds an increased 50 percent evaluation, but no higher, is warranted for the entire appeal period. The Board has considered whether the Veteran's symptoms more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood to warrant a higher 70 percent evaluation and finds that they do not. Although the Veteran reported symptoms including impaired sleep, lethargy, and social isolation, those symptoms were not of such frequency and severity to result in occupational and a social impairment with deficiencies in most areas to warrant a 70 percent rating under Diagnostic Code 9440. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). As previously mentioned, the criteria for a 70 percent rating includes symptoms such 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Throughout the appeal period the Veteran never indicated or been observed to present with obsessional rituals; speech that was intermittently illogical, obscure, or irrelevant; near-continuous panic or depression that affected the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. Rather, by the Veteran's own reports he provides full care for himself and his children and works full time with some days lost due to calling in sick. Further, treating and examining physicians have consistently reported his speech, thought processes, and concentration were all within normal limits, he was appropriately dressed, and oriented in all spheres. Additionally, the Veteran has not endorsed suicidal or homicidal ideations at any point during the appeal period and has not indicated near-continuous panic or depression affecting the ability to function independently. The Board notes the April 2017 note where the Veteran reported suicidal ideation in 2015 following a denied military appeal, but finds it was not of the frequency or severity to warrant a higher evaluation. Specifically, that is the only affirmative indication of suicidal or homicidal ideation in the entire record and there is no indication that it resulted in occupational and social impairment, with deficiencies in most areas at any point during the appeal period. To the contrary, the Veteran has denied any suicidal ideation, reported good relationships with his family and children and recent VA treatment records indicate that symptoms of the Veteran's adjustment disorder are becoming less severe and the he feels he is getting his quality of life back. In sum, the symptoms the Veteran had during this period (depression, social isolation, difficulty sleeping, and panic attacks) have not been so frequent and disabling to result in deficiencies in most areas. Specifically, while Veteran reported panic attacks at least weekly, social isolation outside of his family, and sleep disturbances, at no point did he endorse that any symptoms manifested in obsessional rituals, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control, neglect of personal appearance and hygiene, or the inability to establish and maintain effective relationships. On mental status examination, insight and judgement have been described as good or intact and thought content was always within normal limits. VA treatment records also do not reflect that the symptoms result in occupational and social impairment with deficiencies in most areas. Records in September 2020 show the Veteran reported feeling a lot better and he denied any depression or anxiety. Accordingly, the Board finds an evaluation in excess of 50 percent is not warranted at any point throughout the appeal period. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). 2. Bilateral Hearing Loss. The Veteran seeks service connection for bilateral hearing loss. After review of the evidence, the Board finds that the Veteran does not have a current hearing loss disability for VA purposes and the claim must be denied as a matter of law. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge 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 generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). In July 2017, the Veteran underwent a VA examination to determine the etiology of any current hearing loss disability. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [Date of exam] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 0 5 5 0 3 96 LEFT 0 10 10 10 8 96 In August 2020, the Veteran underwent an additional VA examination to determine the etiology of any current hearing loss disability. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [Date of exam] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 5 5 0 5 100 LEFT 5 5 5 5 5 100 The Veteran's Service Treatment Records (STRs) including audiometric testing reflect no hearing loss for VA purposes. The entrance examination and separation examinations did not reflect a hearing loss disability as defined by 38 C.F.R. § 3.385. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (explaining that the threshold for normal hearing is from zero to 20 decibels). Further, the Veteran underwent additional in-service hearing tests in June 2014 and May 2015 that failed to show hearing loss for VA purposes. Unfortunately, the record does not reflect hearing loss for VA purposes while in service. In summary, there is no competent medical evidence that indicates that the Veteran has a current hearing loss disability in either ear that meets VA disability criteria. The Veteran is competent to report symptoms of hearing loss that he may experience as a layperson. However, the Veteran is not competent to diagnose a bilateral hearing loss disability because hearing loss is identified by objective and specific audiometric and speech recognition testing. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he has personal knowledge); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Board finds that the preponderance of the evidence is against the claim for a hearing loss disability of either ear. Consequently, because a preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for a bilateral hearing loss disability is denied. See 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to Service Connection for a Left Leg Disability is Remanded. On remand, the Veteran underwent a VA examination. When VA undertakes to provide a medical examination, it must ensure that the examination and opinions therein are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, a remand is necessary to ensure an adequate record with which the Board can make a decision. Specifically, the lay and medical evidence indicates that the Veteran's service-connected back disability may be more severe than is reflected in the September 2020 examination, including of motion and neurologic manifestations which were not discussed by the VA examiner. The Veteran's claim for an increased evaluation for a service-connected back disability is inextricably intertwined with the issue of entitlement to service connection for a left leg disability, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to an increased evaluation for a service-connected back disability cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the electronic claims file. 2. Schedule the Veteran for VA orthopedic and periphery nerve examinations to determine the current severity of his back disability. The entire claims file, including any newly obtained treatment records, must be reviewed by the examiner and all necessary tests should be conducted. The VA examiner must comment on any neurologic symptoms secondary to the service-connected back disability. The VA examiner is also asked to comment on: 1. The Veteran's VA treatment records showing radicular symptoms, including the April 2020 notes showing "weekly episodes of left leg numbness from hip to foot lasting 15-45 minutes..." See April 2, 2020 VA treatment Note. 2. The Veteran's lay reports of shooting pain and numbness in the left leg. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.