Citation Nr: 21029554 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 10-01 326 DATE: May 13, 2021 ORDER A uniform 70 percent rating for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 12, 2016, is dismissed. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD has been manifested by impairment with deficiencies in most areas; total occupational and social impairment has not been shown. 2. The Veteran filed to submit within one year of the VA's December 2017 request, a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, which would have provided critical information necessary to adjudicate the claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 3. The evidence of record is insufficient to determine whether the Veteran has been rendered unable to obtain or maintain gainful employment due to his service-connected disabilities during the TDIU period. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent rating, and no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The issue of entitlement to TDIU is considered abandoned, leaving no question of law or fact to decide. 38 U.S.C. §§ 501, 7105; 38 C.F.R. §§ 3.158, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to July 1984 with additional service in the Pennsylvania Air National Guard, including Active Duty for Training (ACDUTRA) from May 26, 1987 to June 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal of multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2014, the Veteran testified at a hearing before the Board; the Veterans Law Judge (VLJ) who conducted that hearing is no longer employed by the Board. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In June 2020, the Board sent a letter to the Veteran offering him the opportunity to request another optional Board hearing with a VLJ who would decide his appeal. The Veteran did not respond to that letter and it was not returned as undeliverable; accordingly, his appeal has been reassigned to the undersigned for a decision. See 38 C.F.R. § 19.3(b). The Board notes that the Veteran was erroneously sent a letter in October 2020 indicating he could elect a virtual hearing instead of waiting for a Travel Board hearing. However, the Veteran did not have a pending hearing request and this letter was sent in error. Most recently, this appeal was before the Board in August 2017. At that time, the Board remanded the appeal in its entirety for additional evidentiary development. With respect to the issues of increased rating for the right knee disability, increased rating for tinnitus, and whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right-hand disability, the Board remanded these issues because the AOJ failed to issue a Statement of the Case (SOC) in violation of Manlincon v. West, 12 Vet. App. 238 (1999). A review of the filed reflects that separate SOCs were issued in November 2019. To date, the Veteran has not filed a Form 9 substantive appeal, appealing the denials to the Board. Thus, those issues are not currently in appellate posture. The Board finds that there has been substantial compliance with the remand directives from August 2017 regarding the claims decided herein. See Stegall v. West, 11 Vet. Appl 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The Veteran's PTSD is currently rated under Diagnostic Code 9411. All psychiatric disorders are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. Under the general rating formula, 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted 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 situations (including work or a work-like setting); and inability to establish and maintain effective relationships. Finally, a total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and "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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Further, "§ 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." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. Turning to the facts of the case, the Veteran filed for service connection for PTSD in April 2008. Contemporaneous treatment records reflect that the Veteran received periodic treatment for his PTSD. He endorsed difficulty sleeping on a regular basis along with recurrent nightmares and intrusive memories. He consumed several alcoholic beverages per night. He described consistent irritability and anger, which impacted his relationships. The Veteran remained well-oriented with good insight and judgment. He denied suicidal or homicidal ideations nor was there evidence of hallucinations or delusions. At the March 2009 VA examination, the Veteran indicated that he had no leisure activities and was socially isolated in his apartment when he was not working. His symptoms included hyperarousal, insomnia, sleep disturbances, anger, and irritability as well as homicidal ideation. He also experienced claustrophobia along with nightmares one to two times a week and daily intrusive memories. The examiner found that the Veteran's symptoms impaired his ability to maintain social and working relationships. He avoided crowds and did not stay long at social events because of his anxiety. He also reported mild difficulty with concentration and mild startle response to loud noises. He used alcohol to help him relax and sleep. Daily, he consumed about four to eight drinks a day, which included beers and liquor. Mental status examination revealed that the Veteran was fully oriented and there was no impairment to thought processes or communication. However, his mood was depressed, and he experienced feelings of worthlessness. While he did have some difficulty concentrating, he denied suicidal ideation and significant difficulty with concentration. There was no evidence of panic attacks. At the April 2010 VA examination, the Veteran endorsed continued anger, irritability, and loud outbursts, along with sleep disturbances and claustrophobia. He experienced recurrent memories and flashbacks daily and continued to avoid crowds and loud noises. He stated that in the past three months, the police had come to his home on seven to eight occasions due to violence between him and his girlfriend. The Veteran reported that over the years, he has had multiple arrests and citations for domestic abuse and violence. He experienced verbal confrontations and yelling with his coworkers. Socially, the Veteran was isolated and withdrawn and had little interaction with his family and friends. He did not have any social or leisure activities and continued to express a lack of motivation and interest. His symptoms significantly interfered with his social, familial, and working relationships. He consumed about six to eight alcoholic drinks every night to help him sleep and endorsed hypervigilance and exaggerated startle response. Upon mental status examination, the Veteran was oriented on all spheres. While there was some mild impairment to concentration and memory, there was no evidence of suicidal or homicidal ideation or any hallucinations or delusions. The Veteran indicated that he stopped his treatment protocol, to include his medication, since January 2010. In subsequent treatment records, the Veteran continued to report anger, irritability, and nightmares along with continued alcohol abuse, sleep disturbance, and isolation. His mental status was within normal limits. He remained oriented on all spheres and denied hallucinations, delusions, or suicidal or homicidal ideations. In April 2010, the Veteran restarted his medications. At the April 2012 VA examination, the Veteran's symptoms included anxiety, nightmares, chronic sleep impairment, disturbances in motivation and mood, impaired impulse control, irritability, and violence, along with difficulty establishing and maintaining effective relationships. He did not have any friends and only maintained a relationship with his stepfather. At times, his verbal confrontations with his significant other became physical. He did not have relationships with his coworkers and often had verbal confrontations with his peers and strangers. He isolated himself and did not have leisure or social engagements. The Veteran's treatment included group and individual counseling appointments and medications, which he stated helped to some small extent with his sleep. He consumed alcohol three to five times per week and had five or six drinks at a time. Notably, he stated that his drinking has decreased in the last year and a half and attributed his previous alcohol abuse to several deaths in his family. Ultimately, the examiner found that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. He remained oriented on all fronts but endorsed impaired concentration. While there was no evidence of suicidal or homicidal ideation, he did have visual images of his mother periodically. He also experienced auditory hallucinations, which he interpreted as someone walking up and down the stairs in his home. The Veteran did not manifest any delusions or symptoms of mania. Based on this evidence, the RO granted service connection and assigned an initial 50 percent rating. See July 2012 Rating Decision. Subsequently, the Veteran continued to attend counseling sessions and use medication to treat his PTSD. He remained oriented on all spheres and denied suicidal or homicidal ideation. At the September 2015 VA examination, the Veteran's PTSD symptoms included impaired concentration, irritability, and impaired sleep along with daily alcohol use. He did not maintain close relationships with his family or friends due to his mood swings and irritability. Socially, the Veteran did volunteer by mentoring children and was a member of various veteran service organizations. He mostly isolated himself due to his stressors and he continued to have verbal conflicts with his supervisors. Ultimately, the examiner found that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran was oriented and alert, and the examiner noted the presence of persistent delusions or hallucinations, there was no evidence of delusions or hallucinations at the time of the evaluation. Based on this examination, the RO granted a 70 percent rating effective September 2015. See May 2016 Rating Decision. Subsequently, the Veteran continued to report irritability, low energy, and nightmares about twice per month. He slept about five to seven hours per night and denied suicidal or homicidal ideations. He drank about one drink per day and continued with his medication. He remained oriented and there was no impairment to his judgment, insight, memory, or concentration. Upon review of the evidence, the Board finds that a uniform 70 percent rating is warranted for the entire appeal period. The Board notes that the May 2016 rating decision awarded a 70 percent rating based on the findings of the September 2015 VA examination. A review of the Veteran's medical records and reports demonstrate that the frequency, severity, and duration of symptoms the Veteran endorsed during the September 2015 VA examination were present at the beginning of the appeal period. The Veteran consistently reported irritability, anger, and continuous depression, along with violence, isolative behavior, and heavy alcohol consumption as early as April 2008. There is no significant change in the Veteran's symptomatology during the appeal period. In short, the Board finds that based on the consistency demonstrated by the frequency, severity, and duration of the Veteran's disability picture as early as April 2008, a 70 percent disability rating is warranted for the entire appeal period. The Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 70 percent rating and no more as the Veteran's PTSD does not meet, or more nearly approximate total occupational and social impairment. Specifically, the evidence of record does not show that the Veteran has total social and occupational impairment. The clinical evidence of record does not establish, and the Veteran does not allege, gross impairment in thought processes or communication, grossly inappropriate behavior, intermittent inability to perform activities of daily living or disorientation to time or place. The Board acknowledges that the Veteran endorses depression, anxiety, chronic sleep impairment, difficulty maintaining relationships, and difficulty adapting to stressful circumstances. However, the Board finds that his symptoms adequately contemplated within the currently assigned 70 percent rating. The Board acknowledges that the Veteran endorsed some visual and hallucinations shortly after two of his family members passed away. However, subsequent records reflect that the Veteran no longer endorsed such hallucinations or delusions. The Board finds that the frequency, duration, and severity of the Veteran's hallucinations during the appeal period are not enough to support a total disability rating for the entire appeal period. Moreover, there is no evidence of homicidal or suicidal ideation and there is no evidence of psychoses. See Vazquez-Claudio, 713 F.3d at 116-17. In conclusion, the Veteran does not manifest either symptomatology or the impairment required for a 100 percent rating for the service-connected PTSD at any time during the appeal period. In so concluding, the Board finds that the Veteran's report of symptomatology to be credible, and the Board has resolved inconsistencies in his favor. However, when it comes to the overall impact of his occupational and social functioning, the Board places greater probative weight to the lay and medical evidence, including expert examiner opinions as to occupational and social impact, which reflects that the overall frequency, severity, and duration of the Veteran's symptoms during the appeal period does not meet or more nearly approximate the criteria for a 100 percent schedular rating. As such, a rating in excess of 70 percent is not warranted for the appeal period. TDIU As noted in the prior remand, the April 2017 rating decision by the AOJ determined that the issue of entitlement to TDIU was moot in light of the assignment of a 100 percent disability rating for TBI, effective October 12, 2016. However, the assignment of a total schedular rating does not automatically render a TDIU claim moot. See Bradley v. Peake, 22, Vet. App. 280 (2008). Furthermore, the issue of TDIU is part and parcel to a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). Here, the Veteran's March 2009 NOD timely raised the issue of entitlement to TDIU as the Veteran disagreed with the assigned rating for his service-connected PTSD. Thus, the issue before the Board is entitlement to TDIU prior to October 12, 2016. In the Board's prior remand directives from August 2017, the RO was instructed to develop the Veteran's TDIU claim. The RO sent a VA Form 21-8940 to the Veteran in December 2017. To date, neither the Veteran nor his representative have returned the VA Form 21-8940. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Pursuant to 38 C.F.R. § 3.158, when evidence requested in connection with a claim for increase "is not furnished within 1 year after the date of request, the claim is considered abandoned." 38 U.S.C. § 501; 38 C.F.R. § 3.158. A TDIU claim is a form of increased rating claim. See Hurd v. West, 13 Vet. App. 449 (2000) (recognizing that a TDIU claim was a form of increased rating claim by applying increased rating effective date regulatory provisions to a TDIU claim); Norris v. West, 12 Vet. App. 413 (1999) (recognizing that a claim for a TDIU is in essence a claim for an increased rating). Because the evidence of record is insufficient to decide the TDIU appeal, and the Veteran did not respond to the December 2017 letter from the AOJ asking him to complete and submit a VA Form 21-8940 in connection with the appeal, there remain no allegations of errors of fact or law for appellate consideration. The provisions regarding abandoned claims pursuant to 38 C.F.R. § 3.158(a) do not require notification of the denial. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (concluding that 38 C.F.R. § 3.158"requires no further action by the [RO] until a new claim is received" and that "[o]nce a claim has been abandoned under 38 C.F.R. § 3.158, the Secretary need not advise a claimant of his appellate rights."); see also Morris v. Derwinski, 1 Vet. App. 260, 265 (concluding that even though an appellant may have been ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), he or she "is necessarily charged with knowledge of the regulation"). The Board notes that while there was some evidence of how the Veteran's disabilities impacted his ability to work, in the form of testimony at the May 2014 Board hearing, there is no information concerning the Veteran's educational history or his previous employers. This such information is necessary to adequately adjudicate the TDIU issue. Moreover, the Veteran was notified that completion of the VA Form 21-8940 was needed to permit adjudication of his claim, as detailed above. Accordingly, as the Veteran's TDIU claim has been abandoned, the appeal is dismissed. REASONS FOR REMAND Records Development In the August 2017 Board remand, the Board requested additional records development relevant to the Veteran's claims. Specifically, the Board sought private treatment records related to the Veteran's claimed hearing loss and workers compensation records relevant to the Veteran's left shoulder claim. The record reflects that in December 2017, the AOJ requested authorization from the Veteran to obtain his private treatment records. To date, neither the Veteran nor his representative have provided the requested authorization. In addition, the AOJ has not sought to obtain the records relevant to the Veteran's left shoulder workers compensation claim. As the issues are being remanded for additional development, the Board finds that the incomplete records development should be completed upon remand. Service Connection for Bilateral Hearing Loss The Veteran is seeking service connection for bilateral hearing loss. This appeal was previously before the Board in August 2017. At that time, the Board found that the Veteran did have a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 based on the speech recognition scores of the November 2015. The Board further found that the November 2015 VA examiner's negative nexus was inadequate, as the examiner did not provide a rationale. Therefore, the Board remanded the appeal to afford the Veteran another VA examination and obtain an opinion regarding the nature and etiology of his bilateral hearing loss disability. (CONTINUED ON NEXT PAGE) The Veteran was afforded a VA examination in May 2018. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 10 10 LEFT 10 10 10 25 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The examiner ultimately provided a negative nexus, reasoning that the Veteran did not manifest a bilateral hearing loss disability for VA purposes, ignoring that a current disability within the relevant period had already been established. Thus, the Board must remand once again for an etiological opinion. The need for further in-person examination is left to the discretion of the examiner. Service Connection for Left Shoulder The Veteran contends that his left shoulder disability stems from an injury during active duty. In August 2017, the Board remanded the claim for a nexus opinion based on the Veteran's reports of continuity of symptomatology. Upon remand, the May 2018 VA examiner provided a negative nexus, reasoning that the Veteran did not have any left shoulder issues during service, nor did he have issues with his left shoulder until a work-related injury in 2015. The Board finds that this opinion is inadequate, as it is based on an inaccurate factual premise. Treatment records from as early as 1994 reflect the Veteran's reports of long term left shoulder pain; he was diagnosed with left shoulder arthritis in 2009. Thus, remand is required to obtain an opinion based on the Veteran's medical history. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Contact the Veteran and ask that he provide written authorization to obtain all available treatment records from Bucks ENT. Upon receipt of such written authorization, take appropriate action to contact the identified provider and request complete records related to the Veteran's hearing loss. 2. After securing the Veteran's authorization, request from the City of Philadelphia, copies of the Veteran's employment records, and all records concerning the Veteran's medical retirement. 3. After obtaining any necessary written authorization from the Veteran, obtain his workers' compensation records, including administrative decision(s) and the medical records upon which the decisions were based. 4. Forward the Veteran's claims file to an appropriate examination to determine the nature and etiology of the Veteran's hearing loss. The record and a copy of this remand must be provided to the examiner, and the examination report must reflect review of both. The need for further in-person examination is left to the discretion of the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss had its onset as a result of in-service acoustic trauma. Why or why not? The examiner is to accept as true the Veteran's contentions with regard to noise exposure in service. The examiner should also accept as true that the Veteran manifested a hearing loss disability during the appeal period. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. Forward the Veteran's claims file to an appropriate VA examiner to determine the nature and etiology of the Veteran's left shoulder disability. The record and a copy of this remand must be provided to the examiner, and the examination report must reflect review of both. The need for further in-person examination is left to the discretion of the examiner. Upon review of the record and examination of the Veteran, the examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that any portion of the Veteran's current left shoulder had its onset as a result of an in-service injury. Why or why not? The examiner is to accept as true the Veteran's contentions with regard to a shoulder injury in service and must consider the competent evidence of left shoulder symptomatology dating back to 1994 before rendering an opinion. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.