Citation Nr: 21031404 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 09-44 062 DATE: May 21, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to an initial disability rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for type II diabetes mellitus, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran's left ear hearing loss is related to in-service noise exposure. 2. The Veteran's PTSD is not manifested by total social impairment. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for an initial disability rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to September 1991. In May 2015 and July 2019, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for further development. The claims are back before the Board for further appellate proceedings. Service Connection Left Ear Hearing Loss A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board acknowledges that the Veteran's left ear hearing loss is a chronic disease; however, the Board will not address entitlement to service connection on a presumptive basis since service connection is being granted on a direct basis. The Veteran has left ear hearing loss for VA purposes. See January 2021 VA examination report. Furthermore, he was exposed to loud noises in service in his military occupational specialty (MOS) as a construction equipment operator, which has a high probability of noise exposure. See DD 214. Thus, the first and second Shedden elements have been met, so the question remaining is whether the Veteran's current left ear hearing loss disability is related to his service. Here, the Board notes there are no positive opinions specifically relating the Veteran's left ear hearing loss directly to his service. However, following a January 2021 VA examination, the VA examiner opined that the Veteran's right ear hearing loss is at least as likely as not related to in-service noise exposure. See January 2021 VA examination report. As part of the rationale in support of the opinion, the VA examiner noted in part the threshold shift of 15 decibels at 4000 Hertz (Hz) between the enlistment and separation examinations. Id. The June 1983 enlistment and September 1991 separation examinations also show that the Veteran had a threshold shift of 10 decibels at 4000 Hz in the left ear. See June 1983 and July 1991 service treatment record (STR). Aside from the threshold shift at 4000 Hz in the left ear, the Veteran has also reported that he had no hearing loss prior to rupturing his ear drums in service in 1985, which the January 2021 VA examiner took into consideration in providing the positive opinion for the right ear. See January 2021 VA examination report. Furthermore, the Veteran reported having bilateral hearing loss since service to his treating physician in October 2007. See October 2007 VA treatment record at 1. In addition, a review of the record illustrates there is no evidence of significant post service noise exposure. Thus, when considering the totality of the evidence above, the Board concludes that although the January 2021 VA examiner provided a negative VA opinion regarding the Veteran's current left ear hearing loss, the rationale provided by the VA examiner for the positive right ear opinion is also applicable to the left ear in this case given the similarities between the noise exposure and medical and lay evidence of record. Of note, the Veteran reported no hearing loss upon entrance, the Veteran suffered in-service noise exposure as noted by the VA examiner, and there was a similar threshold shift at 4000 Hz in the left ear as there was in the right ear between the enlistment and separation examinations. Furthermore, the Veteran is competent to report having bilateral hearing loss since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's current left ear hearing loss is directly related to his in-service noise exposure. As such, service connection for left ear hearing loss is warranted. Increased Rating PTSD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings" whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Here, the Veteran contends that his PTSD is more severe than his assigned disability rating would indicate. His PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is warranted for total occupational and social impairment. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that the Veteran has not exhibited total occupational and social impairment throughout the rating period. VA examinations throughout the appeal period illustrate that the Veteran has suffered from the following symptoms: (1) depressed mood; (2) anxiety; (3) suspiciousness; (4) panic attacks that occur weekly or less often; (5) chronic sleep impairment; (6) flattened affect; (7) disturbances in motivation and mood; (8) difficulty in establishing and maintaining effective work and social relationships; (9) difficulty in adapting to stressful circumstances, including work or a work like setting; and (10) suicidal ideation. See February 2012, February 2014, and August 2020 VA examination reports. Additionally, the Veteran has been awarded entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since January 5, 2012, which is the entirety of the appeal period for the Veteran's PTSD claim. See November 2020 rating decision. However, the Veteran has not exhibited total social impairment. He remarried in 2018 after his former spouse died in 2010. See August 2020 VA examination report at 4; February 2012 VA examination report at 9. He lives with his spouse and stepdaughter and has a good relationship with them, he described having a good relationship with his two adult children, and he reported attending church. See February 2012 VA examination report at 9; February 2014 VA examination report at 4; August 2020 VA examination report at 4. He also exhibited some signs of social isolation, including reporting having no friends because he does not trust anybody. See February 2012 VA examination report at 9; August 2020 VA examination report at 4. Furthermore, VA psychiatric treatment notes illustrate that the Veteran has reported thoughts of hurting himself or others on occasion. See February 2016 VA treatment note at 46; see also November 2019 VA treatment note at 71. He also reported suicidal ideation with a reported attempt in October 2020. See October 2020 VA treatment note at 24. In addition, he reported in April 2015 having auditory hallucinations. See April 2015 VA treatment record at 151. Notably, the medical records are predominantly silent for any hallucinations. Nevertheless, even when considering the reports of occasional thoughts of hurting himself and others and having auditory hallucinations, the record illustrates that the frequency of the reports does not rise to the level that the Veteran has persistent delusions or hallucinations and is not a persistent danger of hurting himself or others. Further, the Veteran does not have gross impairment in communication, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time and place, or memory loss of names of close relatives or his own name. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a rating higher than 70 percent. Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms remained constant at 70 percent levels for his PTSD, staged ratings are not warranted. Thus, the criteria for a 100 percent disability rating for PTSD throughout the rating period have not been met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran contends his type II diabetes mellitus is secondary to his service-connected hypertension and/or posttraumatic stress disorder (PTSD). In December 2020, a reviewing clinician opined that the Veteran's type II diabetes mellitus is less likely than not proximately due to or aggravated by his service-connected hypertension or PTSD. See December 2020 VA opinion. However, the rationale provided in support of the opinion is conclusory, and the reviewing clinician provided no discussion of the particulars of the Veteran's case. Thus, the Board finds the opinion to be inadequate and that an additional VA opinion is required to evaluate the Veteran's claim. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his type II diabetes mellitus that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing the development above, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's type II diabetes mellitus. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's type II diabetes was caused or aggravated by his service-connected hypertension and/or PTSD? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page) 3. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.