Citation Nr: 21041351 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-18 318 DATE: July 8, 2021 ORDER A 70 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED The issue of service connection for bilateral hearing loss is remanded. The issue of service connection for a headache disability is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's PTSD caused occupational and social impairment due to difficulty adapting to stressful circumstances including work and/or work-like settings, anxiety, weekly panic attacks, hypervigilance, paranoia, irritability, chronic sleep impairment, mild memory loss, and "near-continuous" panic. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1967 to September 1969. VA received his increased rating claim on July 15, 2015. In April 2021, the Veteran and a family member testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The VLJ noted the issues on appeal and engaged in a discussion with the Veteran towards substantiating the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The hearing transcript is in the claim file. This decision grants a 70 percent rating for PTSD and the Veteran contends he is unable to work because of PTSD symptoms. Under current case law, the Board must consider TDIU as part of increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As explained below, TDIU is deferred pending adjudication of the Veteran's intertwined service connection claims. 1. Entitlement to a rating greater than 50 percent for PTSD VA assigns disability ratings by applying criteria in its Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question of which two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In assigning a higher disability rating, VA determines whether the evidence supports the claim or is approximately balanced, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's PTSD has been evaluated as 50 percent disabling under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130. The General Rating Formula provides: A 50 percent rating 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; difficulty in establishing and maintaining effective work and social relationships; A 70 percent rating 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 circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships; and A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9411. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "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." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. During a May 2015 VA examination, the Veteran reported limited social relationships, although he had a good relationship with his wife and participated in a weekly bowling league and individual and group therapy through VA. The VA examiner noted the Veteran's social functioning was only mildly impaired due to PTSD. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, flattened affect, and disturbances of motivation or mood. Veteran also reported debilitating cluster headaches for over 40 years, which the examiner noted were relevant to the Veteran's mental health disorder. During their interview, the VA psychologist noted the Veteran's thought processes were logical and goal-directed, his judgment appeared intact, and his hygiene, grooming was appropriate. The Veteran reported he could fully and independently complete activities of daily living (ADLs), such as obtaining food, maintaining personal hygiene, and household chores, although at times he had reduced motivation to do so. He denied suicidal thoughts, although he reported "wanting the pain to stop" during acute cluster headaches. The examiner noted the Veteran could manage his financial affairs. The examiner summarized the Veteran's impairment as an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although the Veteran generally functioned satisfactorily, with normal routine behavior, self-care and conversation. In his July 2015 application for increased compensation based on unemployability, the Veteran reported leaving his last job due to anger and irritability. He reported his PTSD symptoms caused him to make mistakes and caused conflict with coworkers. In an August 2015 VA mental health note, the Veteran reported potential paranoia/delusions involving his belief that neighbors had broken into his wife's car. He reported installing security cameras and spotlights around his home and routinely "checked the perimeter" of his home at night to ensure all doors were locked. He stated his wife and neighbors thought he was "going overboard" with these security precautions. The Veteran reported he was sleeping well and his mental health symptoms did not interfere with his marriage or friendships. The attending clinician noted the Veteran's judgment and insight were good, and he denied experiencing audiovisual hallucinations. The Veteran's grooming and hygiene were appropriate and his behavior was noted to be calm and cooperative. In a September 2015 mental health evaluation, the Veteran reported that he retired from working because of stress. He denied any disciplinary actions at work and described a history of good work performance and attendance. The Veteran reported irritability which tended to alienate others. The VA examiner noted the Veteran's hypervigilance and avoidance of thoughts related to traumatic events could directly or indirectly impair the Veteran's memory. However, the Veteran reported good motivation and drive in his previous occupation, was able to maintain task persistence, arrive at work on time, and had few absences. The examiner opined the Veteran's PTSD symptoms caused mild impairment in ability to understand, follow, and retain instructions; and work cooperatively and effectively with co-workers, supervisors, and the general public. In a November 2015 private disability benefits questionnaire (DBQ), the Veteran reported that he worked alone through most of his career because of his anger and irritability. He reported chronic nightmares and flashbacks had intensified since his retirement. The examiner noted symptoms of depressed mood, anxiety, near-continuous panic or depression, chronic sleep impairment, flattened affect, impaired judgment, inability to establish and maintain effective relationships, suicidal ideation, neglect of personal appearance or hygiene, and intermittent inability to perform ADLs. The examiner also noted cognitive processing deficiency and memory loss. In a February 2016 VA mental health record, the Veteran reported his PTSD symptoms worsened and his mood was "terrible." He reported constantly monitoring his surroundings and other people in public to make sure they were not armed. The Veteran described an incident where he was "shaken up" after a neighbor set off fireworks. The attending psychologist noted the Veteran's thought processes were linear and his insight and judgment were good. She noted the Veteran had paranoia associated with hypervigilance but denied audiovisual hallucinations. In December 2016, the Veteran reported continued improvement in PTSD symptoms with medication and participation in group and individual therapy. He described an incident where he was startled by the sound of a bowling ball being dropped, but he was able to reorient and calm himself afterwards. During a June 2017 VA psychiatric examination, the Veteran reported constant hypervigilance, suspiciousness, anxiety, sleep disturbances, nightmares, irritability, anger, mild memory loss, and difficulty around crowds. He reported he did not have any friends and only had minimal contact with family. The Veteran indicated he retired early from his job due to severe headaches and stress due to conflict with a coworker. However, he claimed his emotional issues did not interfere with his job duties and that he was told he was a good worker. He denied missing work due to emotional issues. The Veteran reported one instance of suicidal thoughts during a debilitating headache, but denied taking any action. The VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation or mood, near-continuous panic or depression affecting ability to function independently, appropriately, and effectively, intermittent inability to perform ADLs, including maintenance of minimal personal hygiene, difficulty establishing and maintaining effective social and work relationships, and difficulty adapting to stressful circumstances including work or a work-like environment. The examiner opined the Veteran had occupational and social impairment with deficiencies in most areas, including work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran's appearance was presentable, his speech was clear and coherent, his reasoning and judgment were adequate, and he was capable of managing his financial affairs. He noted the Veteran's affect was "a bit depressed." The Veteran denied hallucinations or delusions. In a February 2018 private Disability Benefits Questionnaire (DBQ), the Veteran reported increasing social isolation since his retirement. He reported hypervigilance and decreased interest in activities he once enjoyed. The examiner noted symptoms of impaired judgment, difficulty understanding complex commands, inability to establish and maintain effective relationships, obsessional rituals that interfered with routine activities, panic attacks more than once per week, mild memory loss, anxiety, depression and suspiciousness. The examiner summarized the Veteran's impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran's psychiatric symptoms increased in severity and frequency since his last evaluation. At the April 2021 hearing, the Veteran reported he disliked leaving his house or being physically close to other people. He reported he was uncomfortable around crowds and did not socialize with anyone other than his wife. He reported constant anger, irritability, anxiety and hypervigilance. The Veteran reported anxiety around backpacks due to his experiences with explosives. He stated he was hyper-sensitive to noise and frequently inspects doors and windows in his home to make sure they are locked. The Veteran reported nightmares about twice per week and that he sometimes went three to four days without shaving or showering. The Board will grant a 70 percent rating. While several examiners have described symptoms that support the currently-assigned 50 percent rating, the February 2016 VA mental health record indicates the Veteran's mental disorder symptoms are subject to variations. At that time, the Veteran reported a worsening of his PTSD symptoms, and ritualistic behavior such as monitoring his surroundings due to a fear of others being armed and dangerous. This behavior apparently continued when the Veteran ventured outside his home as confirmed by the mental health care provider who described the Veteran as having paranoia. The evidence shows the Veteran has occupational and social impairment due to difficulty adapting to stressful circumstances including work and/or work-like settings, anxiety, weekly panic attacks, hypervigilance, paranoia, irritability, chronic sleep impairment, mild memory loss, and "near-continuous" panic. The Veteran's interpersonal problems have impaired his ability to work and he reports increasing social isolation. While he has a good relationship with his wife, he is unable to establish and maintain effective relationships with others. Therefore, a 70 percent rating is warranted and the claim is granted. See 38 C.F.R. § 4.130, DC 9411; Hart, above. A preponderance of the evidence is against a finding of a 100 percent rating at any point during the rating period. While the Veteran reported instances of hypervigilance and paranoia, the evidence does not indicate that he has persistent delusions or hallucinations. Additionally, he has not demonstrated grossly inappropriate behavior and has not been found to be a peristent harm to himself or others. Although the Veteran had intermittent periods where he did not attend to hygiene, he can manage his financial affairs and there is no indication he cannot perform activities of daily living. Therefore, a 100 percent rating is not warranted. See 38 C.F.R. § 4.130, DC 9411. REASONS FOR REMAND The Board has determined that additional development and the matters are REMANDED for the following: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends he has had debilitating migraine headaches and cluster headaches for 40 years, and he asserts his headache disorder may be related to events in service and/or his service-connected PTSD. He has not been afforded a VA examination for his headaches, and therefore remand is necessary for an examination and opinion. With respect to hearing loss, the June 2015 VA hearing loss examination is insufficient to decide the appeal. The negative opinion relied on the fact that the Veteran had normal hearing in his entrance and separation examinations. Under current case law, VA cannot deny service connection based solely on the lack of documented hearing loss in service. The opinion cited a medical study stating, "noise induced hearing loss does not progress once it is stopped." The examiner did not discuss the Veteran's in-service and post-service noise exposure or the Veteran's lay statements regarding the history of his symptoms. The portion of the examination report regarding post-service noise exposure is blank. Remand is necessary for an addendum opinion. If the Veteran is granted service connection for a headache disorder and/or hearing loss, the adjusted disability rating and other findings may have an effect on his entitlement to TDIU, and his claim for that benefit is also remanded. 2. REMAND DIRECTIVES: BILATERAL HEARING LOSS: Schedule the Veteran for a hearing loss examination with the same examiner who conducted the June 2015 VA examination. If the examiner is not available, schedule an examination with another qualified VA AUDIOLOGIST. The examiner must give a thorough explanation for all opinions provided. The examiner is requested to give the following opinions: (a.) Was the Veteran's bilateral hearing loss caused by in-service noise exposure or otherwise related to an in-service injury, illness, or disease? (b.) Did hearing loss manifest to a compensable degree (i.e., was it at least 10 percent disabling under the rating code for hearing loss) within one year of service separation in September 1969? THE EXAMINER MUST ELICIT A DETAILED HISTORY OF THE VETERAN'S HEARING LOSS, INCLUDING POST-SERVICE NOISE EXPOSURE (BOTH OCCUPATIONAL AND RECREATIONAL). THE EXAMINER MUST ALSO EXPRESS AN OPINION WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF HIS HEARING LOSS IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. THE EXAMINER IS ADVISED THAT THE VETERAN WAS EXPOSED TO MILITARY ACOUSTIC TRAUMA DUE TO HIS DUTY SPECIALTY AS A COMBAT ENGINEER. THE EXAMINER IS ADVISED THAT A NEGATIVE OPINION CANNOT BE BASED SOLELY ON A LACK OF DOCUMENTED HEARING LOSS AT SERVICE SEPARATION. In addition to the entire claim file, the examiner is requested to review: *Lay statements and other evidence of the Veteran's post-service noise exposure, including when he worked in a warehouse as a forklift operator for nearly 40 years. See "Third Party Correspondence," received April 24, 2015. HEADACHES: Schedule the Veteran for an examination with a VA PHYSICIAN to determine the cause of his headache disorder. The examiner must give a thorough explanation for all opinions provided. The examiner is requested to give the following opinions: (a.) Was the Veteran's headache disorder caused by any event, disease, or injury during active service, including concussions and/or acoustic trauma caused by explosions? (b.) Was the Veteran's headache disorder caused by his PTSD or other service-connected disabilities? (c.) Was the Veteran's headache disorder aggravated beyond its normal progression by PTSD or his other service-connected disabilities? i. If aggravation is found, the examiner must establish the pre-aggravation baseline level of severity of the Veteran's headache disorder. If the examiner is unable to establish a baseline, he must explain why. THE EXAMINER MUST ALSO EXPRESS AN OPINION WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF HIS HEADACHE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. In addition to the entire claim file, the examiner is requested to review: *April 2021 hearing testimony where Veteran reported multiple concussions and noise exposure due to explosives during service, including one instance where he lost consciousness. See "Hearing Transcript," received April 1, 2021 at pages 13-15. *Private treatment records noting diagnoses of cluster headaches and/or migraine headaches. See "Medical Treatment Record Non-Government Facility," received March 5, 2014, at pages 1, 15 of 34. *VA psychiatric examination where examiner noted cluster headaches were relevant to the Veteran's service-connected PTSD. See "C&P Exam," received May 28, 2015, at page 1 of 7. *The Veteran and his wife's lay statements, including his wife's statement that the Veteran has had debilitating headaches for 40 years. See "Hearing Transcript," received April 1, 2021 at page 9. If the RO continues to deny the claims, including the claim for TDIU, it should issue a Supplemental Statement of the Case (SSOC) and give the Veteran and his representative a reasonable opportunity to respond to the SSOC before returning the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.