Citation Nr: 21030230 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-27 464 DATE: May 18, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to an increased rating greater than 30 percent disabling for service-connected depressive disorder is denied. FINDINGS OF FACT 1. The Veteran's left hear hearing loss is etiologically related to in-service noise exposure. 2. During the entire period of the claim, the severity, frequency, and duration of the Veteran's depressive disorder has more nearly approximated occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks than reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for left hear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a disability rating in excess of 30 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9433-9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1979 to September 1992. This appeal returns to the Board of Veterans' Appeals (Board) after it was remanded for further development in February 2019. The Board finds that the remand directives were substantially complied. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board adjudicates these matters on the merits under the legacy appeal framework. 1. Entitlement to service connection for left ear hearing loss The Veteran contends that his hearing loss began in service while serving as a machinist mate in the United States Navy. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease 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). When there is an approximate balance of positive and negative evidence regarding a matter of any issue material to the determination of the matter, the benefit of doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Turning to the evidence of record, noise exposure in service is conceded based on the Veteran's duties as a machinist mate during his service in the Navy. Additionally, current hearing loss for VA purposes is established by all post service VA audio examinations. Therefore, the only question before it the Board is of medical nexus. See May 2020 VA tinnitus examination. The Veteran has undergone two VA audio examinations that provide nexus opinions and has provided a private medical nexus opinion. The Board finds the positive private medical nexus opinion more probative than the October 2014 and October 2018 VA opinions. Both of the VA examiners premise their negative nexus opinions on the absence of a significant threshold shift in the Veteran's hearing thresholds and a hearing loss disability shown in service. The October 2014 VA examiner explained that A significant change in hearing is defined as a change greater than normal measurement error (i.e., greater than 10 dB). The October 2014 and October 2018 examiners' opinions, however, do not reflect consideration of the Veteran's service treatment records that show a 20 decibel shift in the left ear hearing thresholds at 4000 Hertz when comparing his May 1979 hearing test with that performed during his July 1992 separation examination. Moreover, the October 2014 and October 2018 examiners based their opinions, at least in part, on the absence of hearing loss shown in service. Here, the Board highlights that hearing loss need not be shown in service for service connection to be established if there is sufficient evidence that a current hearing disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Therefore, the Board finds the nexus opinions provided by the October 2014 and 2018 VA examinations are not probative and affords them no weight. This leaves only a single nexus opinion of record, the August 2019 private opinion, relates the Veteran's left ear hearing loss to the same in-service acoustic trauma responsible for his service-connected right ear hearing loss. The opinion is provided by a qualified physician based on the evidence of record, including the October 2014 VA audiogram results and the Veteran's service treatment records. Therefore, the Board finds this nexus opinion probative of the Veteran's condition. Accordingly, the preponderance of the probative evidence is for the claim of entitlement to service connection for left ear hearing loss. Therefore, the Veteran's claim is granted. 2. Entitlement to an increased rating greater than 30 percent disabling for service-connected depressive disorder The Veteran contends that his depressive disorder-dysthymia has increased since he was first awarded a 30 percent disability rating for his disorder in 2014. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximate the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. The Veteran's depressive disorder-dysthymia is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9433-9434 A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. Id. 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). Turning to the evidence of record, the Veteran requested an updated VA examination when he applied for an increased rating. This examination was conducted in December 2019 in response to the February 2019 Board remand directives. The December 2019 VA examination, and the Veteran's lay statements show that the Veteran's dysthymic disorder (also known as persistent depressive disorder and initially claimed as PTSD) is manifested by symptoms that include depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, 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. The examiner noted that the Veteran is capable of managing his financial affairs, and that the Veteran was drinking up to "a fifth of liquor a week" but no other drug use. The examiner noted that there are no other symptoms attributable to the Veteran's mental disorder, including no panic attacks, no significant cognitive difficulties, no suicidal or homicidal ideations, no impaired judgment. The Veteran did report some legal difficulties with expired registration and being charged with worthless checks five or more years ago. The Veteran stated that the worthless check charges stemmed from his ex-wife whom he left partly due to this behavior and her substance abuse. As reflected in the December 2019 VA examination report, the Veteran also has maintained normal familiar and work relationships. He was married for 24 years to his first wife until the legal issues began. He has a good relationship with his eldest daughter, though his relationship is not as good with his other children. He also remarried in 2015. The Veteran reported working for the same company for 12 years after service, before he stopped working due to surgeries. He did not report any difficulties with coworkers, supervisors or others, or repeated disciplinary issues. He reported that he has since been employed for four years in a fulltime supervisory with a shower enclosure manufacturer and installer. Based on these findings, the December 2019 VA examiner found occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; the examiner did not identify any symptoms associated with a 50 percent rating or higher rating. A prior VA examination, conducted in October 2014, does not reflect that the Veteran's psychiatric disability was manifested by more severe or frequent symptoms. The October 2014 examiner also opined that the Veteran experienced some distress due to his conceded in-service stressor, but that it did not cause him any impairment in his social and occupational functioning at that time. During the examination, the Veteran reported being involved with church, having friends whom he saw once a month, and having a close relationship with his children. The examination revealed his psychiatric symptoms as depressed mood and chronic sleep impairment. No other symptoms or clinical findings were noted following the examination of interview of the Veteran. The Veteran also provided a private PTSD disability benefits questionnaire (DBQ) in August 2019, which reflects a diagnosis of posttraumatic stress disorder (PTSD) by a licensed clinical social worker. This DBQ did not have the substantive analysis and rationale, or adequate reasons and bases, necessary for the Board to understand why the examiner arrived at this diagnosis, which is contradictory to the October 2014 and December 2019 VA examiners' conclusions that the Veteran did not meet the criteria for a PTSD diagnosis. Therefore, the private assessment indicating a current PTSD diagnosis is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 294, 304 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation). On the August 2019 PTSD DBQ, the private examiner checked various symptoms but did not provide any background or why these symptoms are checked. Further, several of the statements and identified symptoms and conclusions are counter to other evidence of record. For example, the private examiner identified that "the vet has not been [e]valuated by the VA for these symptoms," which indicates that the private examiner did not review the Veteran's claim file or the October 2014 VA examination report. The record reflects that the Veteran also underwent psychological therapy through the VA from December 2016 through April 2017, records which were not reviewed or acknowledged by the private examiner. See April 2017, February 2017, January 2017, December 2016 VA psychotherapy notes. At each of these therapy sessions, the notes were consistent. The VA treatment records noted that the Veteran's dress was appropriate, hygiene was well groomed, good eye contact, broad affect, or at most restricted/constricted due to the recent frustration, however, his mood was always positive with clear and productive thought process. Speech was always noted as normal in rate and note of voice and no evidence of formal through disorder was noted. The Veteran's judgment was noted as good, insight fair to good, impulse control noted as currently intact, and he was easy to build rapport with. The Veteran denied any suicidal or homicidal ideations at all of these sessions. As such, the Veteran's symptoms had been previously evaluated and were subsequently evaluated again by the VA in December 2019. In contrast to the symptoms noted during the Veteran's VA psychiatric treatment and examinations, the August 2019 private examiner identified the following additional symptoms: suspiciousness, mild memory loss, such as forgetting names, directions or recent event, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulties adapting to stressful circumstances, including work or a work like setting, impaired impulse control, such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene. Of these noted, suspiciousness, mild memory loss, such as forgetting names, directions, or events, are symptoms identified with a 30 percent disabling rating. The symptoms of difficulty in establishing and maintaining effective work and social relationships, difficulties adapting to stressful circumstances, including work or a work like setting and neglect of personal appearance and hygiene are identified with a 50 percent disabled rating while impaired impulse control, such as unprovoked irritability with periods of violence is associated with 70 percent disabled rating. However, these symptoms, other than flattened affect, are counter to the Veteran's reported symptoms and history. Indeed, the preponderance of the evidence does not support the August 2019 private examiner's depiction of the Veteran's social functioning and does not show that the next-higher, 50 percent rating is warranted. While the August 2019 examiner noted the Veteran to have difficulty establishing and maintaining effective relationships, the other medical and lay evidence indicates otherwise. The VA examination reports indicate that the Veteran was married for 24 years to his first wife and has since remarried. The Veteran reported having a productive relationship with his most recent spouse and has had a good relationship with his eldest daughter. See December 2019 VA examination. The Veteran did report having a strained relationship with his three other children but attributed this to their drug use. During the December 2019 VA examination, the Veteran also reported attending church and bringing food he and his spouse cooked to other members of the congregation. The Veteran worked for 12 years for the same company without disciplinary or other problems being reported and only stopped working because of medical conditions. After those conditions he took on a new job, that he has held for over four years. This position is a supervisory position, and as such requires maintaining work relationships with those supervised. As such, while the Veteran does worry about maintaining his job, these worries were identified to stem from his physical pain due to other conditions such as arthritis, gout, and pain in his knees. See December 2019 VA examination, April 2017 VA Psychology Note, February 2017 Psychology Note, January 2017 Psychology Note, December 2016 Psychology Note. Additionally, the August 2019 DBQ notes the Veteran neglects his personal appearance and hygiene, which is contradictory to the VA medical evidence. The VA examination reports, and treatment records note the Veteran to have appropriate appearance and grooming, and there is no probative evidence to suggest otherwise. See December 2019 VA examination, April 2017 VA Psychology Note, February 2017 Psychology Note, January 2017 Psychology Note, December 2016 Psychology Note. Similarly, the preponderance of the evidence does not indicate that the Veteran's service-connected depressive disorder is manifested by impaired impulse control or unprovoked irritability, or any more severe symptoms, to warrant an even higher (70 percent) rating. The Board notes that the Veteran's recent reported recurrence of symptoms of anger and irritability and that his wife wants him to see a mental health provider again. See June 2020 Primary Care Treatment Note. While this irritability is supported by the Veteran's statements made during his February 2017 psychotherapy session, that he takes his frustration out in irritability at his wife, there is no mention of physical violence or impaired impulse control. The Veteran has never reported such to any other providers. In fact, the August 2019 examiner does not elaborate on when or in what situations the Veteran has had any periods of violence or quantify the irritability or impulse control. Again, the record reflects the Veteran's own reports of helping members of his church, supervising employees, and having positive relationships with friends and family members, none of which suggest any difficulty with episodes of violence or significant irritability. Essentially, the preponderance of the evidence does not show symptoms equivalent in severity to the symptoms associated with a 70 percent rating and does not show deficiencies in most areas as a result of such symptoms. Both factors must be present in order to satisfy or more nearly approximate the criteria for a 70 percent evaluation. See Vazquez-Claudio, 713 F.3d at 118; 38 C.F.R. § 4.130, DC 9433-9434. The normal mental status examination findings with regard to speech, insight, and thinking, weigh against a rating of 70 percent or higher. Because the August 2019 private examiner's findings and conclusions are contrary to the preponderance of the other medical and lay evidence, and the private examiner does not provide necessary reasons and bases for the Board to understand how the examiner arrived at her conclusions, the August 2019 private evaluation is given no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary medical opinions). The evidence also does not show total occupational and social impairment due to the Veteran's depressive disorder, the criteria for a 100 percent rating are not satisfied. See 38 C.F.R. § 4.130, DC 9433-9434. As reflected in the probative evidence, many of the symptoms manifested by the Veteran are specifically listed within the criteria for a rating of 30 percent, and the others are common psychiatric symptoms that while not specifically listed are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. Overall, the Veteran has not demonstrated symptoms of such severity, frequency, and duration that would be comparable indicators of the type of impairment contemplated in the criteria for a 50 percent rating and would constitute occupational and social impairment with reduced reliability and productivity. The Board finds that the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the relevant rating criteria. Accordingly, the Veteran's symptoms as described above are consistent with the current 30 percent disability rating throughout the appeal period. 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 50 percent, or even higher rating. The criteria for a 50 percent or higher rating are not met, and the appeal must be denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.