Citation Nr: 21030764 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-02 589 DATE: May 19, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for post-traumatic stress disorder (PTSD), effective October 31, 2013, is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a skin condition, other than alopecia areata and the residuals of removal of a sebaceous cyst, is remanded. FINDINGS OF FACT 1. The functional impairment resulting from the Veteran's service-connected PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, primarily due to such symptoms as suicidal ideation and difficulty adapting to stressful circumstances, including work or a work like setting, since the effective date of service connection for the disability, but the preponderance of evidence is against a finding that the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders, or others of similar severity, frequency, and duration, or experienced total occupational and social impairment at any point in the appeal period. 2. The Veteran has never been shown to have more than Level I hearing loss in either ear at any point in the appeal period. 3. The Veteran meets the schedular percentage requirements for TDIU, and his service-connected disabilities at least as likely as not prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for PTSD, effective October 31, 2013, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2015 and January 2017 rating decisions. The Veteran appeared at hearing before the undersigned in July 2019. A transcript of the hearing is of record. In November 2019, the Board remanded the issues on appeal for further development, which will be discussed in more detail as relevant below. The Board notes additional pertinent evidence has been associated with the claims file since the issuance of the post-remand, August 2020 supplemental statement of the case for this appeal. In April 2021, the Veteran's representative submitted a waiver of initial Agency of Original (AOJ) review of this evidence, requesting the Board address the merits of the issues on appeal at this time. See 38 C.F.R. § 20.1305(d). The issue of service connection for traumatic brain injury, although currently pending before the Board, will be addressed in a separate decision because the Veteran had a hearing with a different Veterans Law Judge in April 2021 regarding that claim. 1. Entitlement to a 70 percent rating, but no higher, for PTSD, effective October 31, 2013, is granted. The Board notes a staged rating is currently assigned for PTSD during the appeal period. The previously noted November 2015 rating decision denied a rating in excess of 30 percent for PTSD, an issue which the Veteran timely appealed; thereafter, the AOJ granted an increased 70 percent rating, effective July 1, 2020, based on the date of the examination scheduled pursuant to the Board's November 2019 remand directives. The Board further notes the AOJ has adjudicated the Veteran's appeal of the rating assigned for PTSD as an increased rating claim; however, in light of recent developments in case law, the Board finds the Veteran's appeal actually relates back to the initial rating assigned for PTSD. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2021). By way of history, a February 2014 rating decision granted service connection for PTSD with an initial 30 percent rating, effective October 31, 2013. Although the Veteran did not appeal the February 2014 rating decision, VA treatment records created in December 2014 and January 2015, which were constructively of record in the appeal period of the February 2014 rating decision, document an increase in the Veteran's symptoms, to include suicidal ideation, which providers at that time attributed to the Veteran's response to the bombing at the Boston Marathon in April 2013. Since the December 2014 and January 2015 VA treatment records discuss symptoms that were not noted by the Veteran's initial February 2014 VA examiner and were constructively in VA's possession, they constitute new and material evidence received in the appeal period of the February 2014 rating decision, vitiating the finality of that decision. See Lang, 971 F.3d at 1355 (holding actual knowledge of relevant VA treatment records constructively in VA's possession is not necessary for such records to constitute new and material evidence received in the appeal period of a legacy appeal as contemplated by 38 C.F.R. § 3.156(b)). As a result, the Board finds the present appeal relates back to the initial rating assigned for PTSD because VA was constructively in possession of treatment records constituting new and material evidence regarding the initial rating assigned for PTSD, and these records were not addressed by VA adjudicators until the November 2015 rating decision that led to the present appeal. Regarding the merits of the Veteran's appeal, PTSD is rated under Diagnostic Code 9411 in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted when 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 work like setting); and inability to establish and maintain effective relationship. Id. A 100 percent disability rating is reserved 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the claimant's symptoms, but it must also make findings as to how those symptoms impact the claimant's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant's impairment must be "due to" those symptoms; therefore, a claimant may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. Based on a review of the record, the Board finds an initial 70 percent rating for PTSD is warranted. The Veteran has exhibited symptoms specifically contemplated by the 70 percent rating criteria, to include suicidal ideation and difficulty adapting to stressful circumstances, including work or a work like setting. These symptoms have been noted throughout the appeal period, to include the Veteran's initial February 2014 VA examination and in all other examination reports thereafter, as well as in VA treatment records. These symptoms, in conjunction with the Veteran's other symptoms, have had a significant impact on his occupational and social functioning, to the extent that the Board finds the Veteran's impairment approximates occupational and social impairment with deficiencies in most areas, as assessed by the Veteran's July 2020 VA examiner, throughout the relevant rating period. The Board acknowledges other examiners have assessed a lower level of occupational and social impairment, but the Board's primary focus is the Veteran's symptoms, which have remained consistent throughout the appeal period. These symptoms, when combined with the July 2020 VA examiner's assessment, warrant the assignment of a 70 percent rating for PTSD throughout the appeal period, when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board finds the preponderance of evidence is against a finding that the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or others of similar severity, frequency, and duration, or experienced total occupational and social impairment at any point in the appeal period. There is no evidence that suggests the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or others of similar severity, frequency, and duration. In fact, the Veteran's reported symptoms are specifically listed in the criteria for ratings at or below 70 percent. The symptoms listed in 100 percent rating criteria suggest impairment in reality or a total inability to function within the bounds of societal norms. Examination reports and treatment records show the Veteran has been alert and oriented to time and place. There is no evidence of persistent delusions or hallucinations; this type of symptomatology was specifically denied during multiple VA examinations and in treatment. The Veteran has also not manifested grossly inappropriate behavior and does not appear to be a persistent danger to harming himself or others. The Board acknowledges it is not expected that all cases will show all the findings specified in a specific rating criteria. 38 C.F.R. § 4.21. Yet, in this case, the Veteran has not manifested any of the specific symptoms that warrant a 100 percent rating, or others of similar severity, frequency, and duration. The evidence also fails to establish total occupational and social impairment. VA examination reports and treatment records during the appeal period establish the Veteran is married and cohabitates with his wife without significant issues, interacts with a close group of friends from church, and does volunteer work for a Veterans Service Organization, establishing he does retain some level of occupational and social functioning despite the impairment from his PTSD. In sum, the functional impairment resulting from the Veteran's PTSD does not reflect the level of occupational and social impairment contemplated by the 100 percent rating criteria and to that extent his appeal is denied; nevertheless, the Board finds an initial 70 percent rating for PTSD, effective October 31, 2013, is warranted and to that extent his appeal is granted. 2. Entitlement to a compensable rating for bilateral hearing loss is denied. Evaluations of defective hearing 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 puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak v. Nicholson, 21 Vet. App. 447 (2007); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examination reports, however, are required to include full descriptions of the functional effects caused by a hearing disability. Martinak, 21 Vet. App. at 455. Other than in exceptional cases of hearing loss, VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional hearing loss exists if there is 30 decibels or less of loss at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz; or 55 decibels or more at all relevant frequencies. 38 C.F.R. § 4.86. The Veteran filed an increased rating claim for bilateral hearing loss in September 2016. The AOJ scheduled the Veteran for an initial audiological examination in January 2017 pursuant to VA's duty to assist. The Veteran's Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 50 70 42.5 100% LEFT 15 20 50 65 37.5 96% These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The January 2017 VA examiner described the functional effects of hearing loss as reported by the Veteran as increased difficulty understanding speech, to include the Veteran frequently asking his wife to repeat herself. See Martinak, 21 Vet. App. at 455. The results of the January 2017 VA examination equate to the assignment of Level I hearing loss for both ears upon application of Table VI, which corresponds to a noncompensable rating when applied to Table VII. See 38 C.F.R. § 4.85. During the July 2019 hearing before the undersigned, the Veteran testified his hearing impairment had increased in severity since his January 2017 VA examination; therefore, the Board remanded his appeal of the rating assigned for bilateral hearing loss so he could be scheduled for a new examination. The AOJ scheduled the Veteran for new examination in July 2020. The Veteran's Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 60 75 46.25 96% LEFT 15 25 55 70 41.25 96% These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The July 2020 VA examiner described the functional effects of hearing loss as reported by the Veteran as using hearing aids to hear better in public and frequently asking his wife to repeat herself when at home and not wearing hearing aids. See Martinak, 21 Vet. App. at 455. The results of the July 2020 VA examination equate to the assignment of Level I hearing loss for both ears upon application of Table VI, which corresponds to a noncompensable rating when applied to Table VII. See 38 C.F.R. § 4.85. Based on the evidence above, the Board finds a compensable rating for bilateral hearing loss is not warranted. The Board notes there must be at least Level IV hearing loss in the poorer for bilateral hearing loss to be compensable under the VA rating schedule; the Veteran has not been found to have greater than Level I hearing loss in either ear. The Board acknowledges the Veteran's reports of difficulty understanding conversational speech, but this type of impairment is fully contemplated by the schedular rating criteria for bilateral hearing loss, which establish his level of impairment is noncompensable. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017); Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, entitlement to a compensable rating for bilateral hearing loss must be denied. 3. Entitlement to TDIU is granted. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Yet, a finding of total occupational impairment is not necessary to establish entitlement to TDIU. See 38 C.F.R. § 4.16(a) (indicating TDIU may be assigned in cases of marginal employment). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Here, the Veteran meets the schedular percentage requirements for TDIU. As discussed above, the Board finds a 70 percent rating is warranted for PTSD, effective October 31, 2013, which meets the schedular requirements for TDIU standing alone. The Veteran also has compensable ratings for peripheral neuropathy of his bilateral upper and lower extremities, as well as tinnitus. He also has several noncompensable disabilities to include bilateral hearing loss, the residuals of bladder cancer, alopecia areata, and the residuals of removal of a sebaceous cyst. Thus, the only issue that remains is whether the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. The Board finds the Veteran's service-connected disabilities at least as likely as not prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. One of the primary manifestations of the Veteran's service-connected PTSD has been difficulty adapting to stressful circumstances, including work or a work like setting. When this impairment is viewed in light of his hearing difficulties due to his service-connected bilateral hearing loss and tinnitus and the impairment of his bilateral upper and lower extremities due to his service-connected peripheral neuropathy, the Board finds it speculative, at best, to assume the Veteran would be able to secure and follow anything other than marginal employment due to the far-reaching limitations of the combined effects of his service-connected disabilities. The Board cannot deny TDIU without producing evidence, as distinguished from mere conjecture, showing the claimant can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Board acknowledges the Veteran had a long, distinguished military career and engaged in significant post-service work despite the functional impairment resulting from his service-connected disabilities; however, treatment records and examination reports establish more recent events have triggered a delayed-onset manifestation of his PTSD symptoms, which shows his prior of level of occupational functioning is not probative with respect to his current level of occupational functioning. Resolving reasonable doubt in the Veteran's favor, the Board finds TDIU is warranted; the AOJ will assign the effective date in the first instance to ensure the Veteran is afforded due process. REASONS FOR REMAND In November 2019, the Board remanded the Veteran's service connection claim for a skin condition, other than the residuals of removal of a sebaceous cyst, for a new examination and opinion. The AOJ scheduled the Veteran for a new examination in July 2020. Although the July 2020 examination report resulted in an award of service connection for alopecia areata (hair loss), a condition which was previously listed as a separate issue, the July 2020 examiner reported the Veteran did not have any other skin conditions at the time of the examination; however, the July 2020 examiner did not address private treatment records from earlier in the appeal, which show the Veteran was treated for a litany of different skin conditions at that time, to include skin tags (acrochordons), tinea pedis, nevi, solar lentigines, seborrheic keratoses, and cherry angiomas. If a VA examiner finds that there is no current disability when a claimed disability has been diagnosed during the appeal period, VA is required to obtain a medical opinion that resolves the discrepancies between the two potentially competing medical opinions, to include discussion of whether the previous diagnosis was made in error or whether the previously diagnosed condition has since resolved. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The matter is REMANDED for the following action: Schedule the Veteran for a new examination regarding his service connection claim for a skin condition, other than alopecia areata and the residuals of removal of a sebaceous cyst. The selected examiner must provide an opinion addressing whether the Veteran has a skin condition, other than alopecia areata and the residuals of removal of a sebaceous cyst, that is at least as likely as not (50 percent probability or greater) the result of disease or injury in service. If a previously diagnosed skin condition (other than alopecia areata and the residuals of removal of a sebaceous cyst) to include, but not limited to, skin tags (acrochordons), tinea pedis, nevi, solar lentigines, seborrheic keratoses, and cherry angiomas is not found currently, the examiner must address whether the previous diagnosis was made in error or whether the previously diagnosed condition has since resolved. If it is determined that a previously diagnosed skin condition has resolved, the examiner must still provide the requested nexus opinion for that condition. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.