Citation Nr: 21028176 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 20-24 430 DATE: May 10, 2021 ORDER Entitlement ot a disability rating in excess of 70 percent for an unspecified depressive disorder and unspecified anxiety disorder (mental disorder) is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's mental disorder symptoms did not more closely approximate total occupational and social impairment. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for a service-connected mental disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9435. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing and was scheduled for a Virtual Hearing on May 13, 2021. In February 2021, the Veteran withdrew his request for a hearing. In June 2020 the Veteran stated that he greatly appreciated and accepted the evaluation of a 70 percent disability rating for his mental disorder. He further stated that he withdrew his hearing request for his mental disorder effective immediately. The Veteran's statement was unclear as to whether his hearing withdraw included a withdrawal of his appeal. 38 U.S.C. § 20.205. In March 2021, the VA sent a letter to the Veteran asking for verification of his intent to withdraw his claim for an increased rating for his mental disorder. The Veteran did not respond; therefore, the Board will adjudicate the claim. Increased rating for mental disorder The Veteran's mental disorder was initially rated as 30 percent disabling. During the pendency of the claim, the initial rating was increased to 70 percent disabling, under the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130, Diagnostic Code 9435. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. For the reasons set forth below, the Board concludes that the Veteran's symptoms do not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms and level of functional impairment more closely approximates the symptoms associated with the currently assigned 70 percent rating. Legal criteria Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Analysis The evidence of record shows the Veteran's mental disorder was manifested by symptoms associated with a 70 percent rating such as suicidal ideation and difficulty in adapting to stressful circumstances. The Veteran has not demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. The evidence of record does not establish that there has been gross impairment in his thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living; disorientation to time or place; or any other symptoms of a similar type, degree, or effect during the appeal period. While the Veteran reported memory loss, the level of impairment caused by the Veteran's memory loss more closely approximates the level contemplated by the 30 percent rating, which accounts for mild memory loss (such as forgetting names, directions and recent events). In November 2017 statements, the Veteran reported that he was "good at remembering faces but not names," and his spouse stated that the Veteran sometimes "forgets where he is going on occasion." The Veteran has not demonstrated the more severe memory loss contemplated by a 100 percent disability rating, such as forgetting names of close friends, own occupation or own name. The Veteran reported symptoms that are not listed with a specific rating, such as irritability, low motivation, and poor concentration. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Specifically, irritability, low motivation and poor concentration are consistent with impaired abstract thinking or disturbances of motivation and mood which are contemplated under a 50 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran described his symptoms as fleeting thoughts of suicide that occur monthly and he denied any homicidal ideation. The level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. At a December 2017 VA examination, the Veteran stated he is uncomfortable in crowds, but can manage his feelings. The December 2017 VA examiner reported the Veteran's symptoms were not severe enough to interfere with his occupational and social functioning. In June 2020, a VA examiner stated the Veteran had 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 which is consistent with a 30 percent rating. As noted, to warrant a 100 percent rating, the Veteran's symptoms must show total occupational and social impairment. With respect to occupational history, the Veteran reported he continued to work as a marketing director of a medical company. The Veteran reported that he has been with the same company for over 30 years. Socially, the Veteran has been married for over 30 years and has an adult child and four siblings that he remains in contact with. The Veteran's spouse reported that the Veteran avoids spending time with old friends and has trouble maintaining relationships. The Veteran reported that he is a "home body" and he avoids crowds, but he is able to manage his feelings. The preponderance of the evidence of record reflects that the Veteran's mental disorder related symptomology was reflective of, at most, occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. An increased 100 percent disability rating is not warranted at any point during the appeal period. The evidence does not demonstrate that his symptoms are so severe as to cause total social and occupational impairment. In that regard, the Veteran has not been shown to exhibit symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. The record reflects, the Veteran has had a successful career with the same company for over 30 years and a supportive family structure. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. Service connection for tinnitus The Veteran contends that his tinnitus began in service. More specifically, he asserts that it was caused by his exposure to acoustic trauma in service due to his military occupational specialty (MOS) as an armor crewman. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. Furthermore, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran reported having tinnitus during the December 2017 VA audiological examination. This evidence sufficiently establishes the presence of the currently claimed disability. The Veteran asserted that he was constantly exposed to loud shell explosions. The Veteran's Form DD-214 verifies that the Veteran was an armor crewman, which carries a high probability of noise exposure. The records also document that the Veteran served in the Republic of Vietnam and participated in combat. Therefore, an in-service injury has been demonstrated. As the record contains evidence of a current disability, and evidence of an in-service injury, what remains to be established is whether there is a nexus between the diagnosed tinnitus and his in-service noise exposure. The Veteran reported ringing in his ears intermittently since service. See February 2018 Notice of Disagreement. The Veteran is competent to provide evidence regarding the lay observable symptoms of his disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). As noted above, tinnitus has been recognized as a condition capable of both lay observation and diagnosis. Thus, the Veteran's lay statements are competent to render a medical diagnosis and report on incidences of his symptomology. In December 2017, the Veteran underwent a VA examination with respect to this claim. At that time, the Veteran reported the onset of tinnitus in his ears bilaterally after an explosion that knocked him to the ground in service. The examiner rendered a negative nexus opinion, finding that it was less likely than not the Veteran's tinnitus was caused by or is otherwise related to his in-service hazardous noise exposure. However, the examiner did not comment on the Veteran's competent and credible assertions of ongoing tinnitus. (Continued on the next page.) Notwithstanding the VA examiner's negative nexus opinion, the Board accords the Veteran the benefit of the doubt and finds his lay statements credible. At a minimum, the Veteran's statements establish a continuity of symptomology since service. Thus, in accordance with 38 C.F.R. §§ 3.307 and 3.309 the Veteran is entitled to service under the theory of continuity of symptomology. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, Associate 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.