Citation Nr: 21040561 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-51 603 DATE: July 6, 2021 ORDER Entitlement to a 70 percent evaluation for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for tinnitus is granted. Entitlement to a 10 percent evaluation for left hand fourth metacarpal fracture residuals is granted. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, isolating from others, anxiety and panic attacks, hypervigilance, and past passive suicidal thoughts. 2. The Veteran experienced acoustic trauma in service; the Veteran reported tinnitus since service. 3. The Veteran's left hand fourth metacarpal fracture residuals is manifested by painful motion and limitation on repetitive use. 4. The Veteran has hearing loss in the right and left ears that is considered a disability under 38 C.F.R. § 3.385. 5. The evidence is in equipoise as to whether the Veteran's hearing loss was caused by his military service. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. Resolving doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107, 7104; 38 C.F.R. § 3.303. 3. The criteria for entitlement to a 10 percent evaluation for left hand fourth metacarpal fracture residuals have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5230. 4. Resolving all doubt in favor of the Veteran, the criteria for service connection for a right ear hearing loss disability is met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 5. Resolving all doubt in favor of the Veteran, the criteria for service connection for a left ear hearing loss disability is met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from December 1979 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). 1. Entitlement to a 70 percent evaluation for posttraumatic stress disorder (PTSD) The Veteran contends that a 70 percent evaluation is warranted for his symptoms of PTSD. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 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. VA treatment records, the July 2015 VA examination, August 2014 psychiatric evaluation and the Veteran's lay statements and testimony show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating such as difficulty in adapting to stressful circumstances, including work or a worklike setting, isolating from others, anxiety and panic attacks, and past passive suicidal thoughts, and symptoms associated with a 100 percent rating such as intermittent inability to perform activities of daily living and memory loss causing him to forget names, directions or recent events. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Board notes that the Veteran expressed passive suicidal ideation in 2016, 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 regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the July 2015 examination. The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. As the Veteran and his attorney have requested a 70 percent evaluation, the Board does not find that it needs to further discuss why a 100 percent evaluation is not warranted. In short, the evidence shows that a 70 percent is warranted for the Veteran's symptoms of PTSD throughout the appeal period. 2. Entitlement to service connection for tinnitus Tinnitus has been variously defined. It is a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin. 59 Fed. Reg. 17,297 (April 12, 1994). The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Having reviewed the record pertaining to this claim, the Board has determined that service connection for tinnitus is warranted. The Veteran reported that during service he worked as avionic electronic technician on the flight deck for S3A. He explained that he was subjected to extreme noise exposure in service when jets would launch at full power off the carrier deck. The Veteran also stated that he noticed tinnitus right after service discharge. He has had ringing on a consistent basis and daily since that time. As noted, tinnitus is a condition which is capable of lay observation. See Charles. The Veteran was afforded a Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) in April 2015. The Veteran reported a longstanding bilateral constant tinnitus that he described as hissing and static type sounds that began just after he left the Navy. His mother used to complain when he would listen to music at night to help cover his tinnitus. The examiner opined that there was no basis to concluded that claimed tinnitus is caused by military noise exposure as his hearing was normal upon separation. The Board finds that the Veteran's statements and testimony that his tinnitus began right after discharge to be credible. As tinnitus is a condition which is capable of lay observation, the Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether the Veteran has tinnitus that is related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for tinnitus is granted. 3. Entitlement to a 10 percent evaluation for left hand fourth metacarpal fracture residuals The Agency of Original Jurisdiction (AOJ) granted service connection for left hand, fourth metacarpal fracture under Diagnostic Code 5230 and assigned a noncompensable evaluation. The Veteran requests a 10 percent evaluation due to painful motion. The April 2015 examiner found all range of motion of the fourth metacarpal to be normal. Although the examiner found no functional loss or range of motion after three repetitions, the Veteran reported that he had pain with use especially repetitive use of the dominant left hand when writing and typing and use of equipment. He reported that use of the hand causes pain and with more work, the sorer it becomes. In the April 2015 opinion, the examiner noted that the Veteran had pain and some loss of repetition use of the left hand since the fracture. Under DC 5230, limitation of motion for the ring or little finger is evaluated as noncompensable for any limitation of motion. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Traumatic arthritis will be rated as degenerative arthritis under Diagnostic Code 5010. The Veteran is currently receiving a noncompensable evaluation under DC 5230. Here, the Veteran fractured his fourth metacarpal during service. Limitation of motion is objectively confirmed by findings of evidence of painful motion and limitation of motion after repetition. See April 2015 Hand DBQ and Medical Opinion. Therefore, DC 5010 is a more appropriate diagnostic code. As limitation of motion under DC 5230 involves a noncompensable evaluation, a 10 percent is warranted under DC 5010. See 38 C.F.R. § 4.71a, DC 5010. 4. Entitlement to service connection for right ear hearing loss 5. Entitlement to service connection for left ear hearing loss For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. According to 38 C.F.R. § 3.385, the Veteran has a current hearing loss disability in his right ear and left ear. See April 2015 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The April 2015 audiologist who conducted the April 2015 Hearing Loss and Tinnitus DBQ opined that it was not at least as likely as not that the Veteran's right ear and left ear hearing loss was caused by an event in service. She explained that the separation examination showed normal hearing with no significant changes in hearing thresholds compared to enlistment examination in November 1979. The examiner noted no complaints of hearing loss in the Veteran's military treatment records. First documented evidence hearing loss was in 2012 which was 29 years after military separation. The examiner also noted a significant history of occupational noise exposure after service. The examiner appears to rely on the absence of a hearing disability during service. However, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). An audiologist who conducted the September 2018 examination found that the Veteran's hearing loss and tinnitus were a result of his military occupational specialty, avionic electronic technician. In this occupation, the Veteran had a moderate probability of noise exposure. In the April 2021 Board hearing, the Veteran reported problems with his hearing since discharge. In an April 2015 statement, he noted he served in the US Navy and worked on the flight deck as a weapon system technician for S3A. This duty carried a high level of hazardous noise exposure on a daily basis for varying purposes. He noted that although he worked as police office after his military service, he always wore hearing protection. In contrast, he reported that he wore rudimentary hearing protection in service that was not sufficient to block out noise. Furthermore, he had to remove this hearing protections in service on a regular basis for varying purposes. He explained that he was subjected to extreme noise exposure in service when jets would launch at full power off the carrier deck. He noted no hobbies with any hazardous noise exposure. The Board finds that the evidence in favor and against the Veteran's claim is in equipoise. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's hearing loss is due his military service. (Continued on the next page) For these reasons, service connection for right ear and left ear hearing loss is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.