Citation Nr: 21042819 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-12 425 DATE: July 13, 2021 ORDER Entitlement to service connection for a left ear hearing loss disability is denied. Entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an increased rating greater than 10 percent for residuals fragment would left thigh with retained foreign bodies is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A left ear hearing loss disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and there is not a current left ear hearing loss disability for VA purposes. 2. For the entire appellate time period, the Veteran's PTSD has been manifested by symptoms resulting in deficiencies in most areas, but less than total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). 2. The criteria for a disability rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Marine Corps from February 1966 to June 1969 and from February 1972 to February 1974 with two tours of duty in the Republic of Vietnam. He was awarded the Combat Action Ribbon and Purple Heart Medal. During his May 2021 Board hearing, the Veteran raised the issue of entitlement to TDIU, testifying that he was unable to work due to his service-connected disabilities, including his PTSD and left thigh disabilities. As such, the issue of entitlement to TDIU is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). Service Connection 1. Entitlement to service connection for a left ear hearing loss disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. Certain diseases, to include organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran was diagnosed with a left ear hearing loss disability within one year of service the above provision is not applicable. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a left ear hearing loss disability due to noise exposure during his combat service in Vietnam. In addition to the above-noted legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records do not include complaints, treatment, or diagnosis of a hearing loss disability for VA purposes or complaints related thereto. The Board does note that on the Veteran's reenlistment examination in February 1972 that his hearing acuity was 30 decibels at 500 Hertz in the left ear; however, that hearing acuity at 500 Hertz in the left ear actually had improved to 5 decibels by the time of the separation examination in February 1974. In a contemporaneous February 1974 Report of Medical History, the Veteran stated that he was in good health and denied a history of ear problems or hearing loss. The Veteran was afforded a VA examination in July 2015. At that time, audiogram testing showed a left ear hearing loss disability for VA purposes and the examiner diagnosed sensorineural hearing loss. The Veteran reported hearing problems manifested by having to turn the television louder. Following examination, the examiner concluded that it was not at least as likely as not that the Veteran's left ear hearing loss disability was caused by or the result of an event in service. The rationale noted that hearing acuity was within normal limits in 1966 and in 1974 with no shifts in hearing acuity between those periods (when corrected for ASA to ISO calibration). Hearing was within normal limits in 1972, except for a mild hearing loss at 500 Hertz that had returned to normal limits by the time of separation from service. In September 2015, the Veteran was issued bilateral hearing aids. In December 2015, the Veteran reported that his hearing aids worked well, but that sounds in Costco were too loud and that he used his speaker phone when talking on the phone. In his February 2018 substantive appeal, the Veteran indicated that, "When bombs were being dropped and mortars were coming in, both of my ears felt the effects; not just one ear. Also, according to the VA examiner there was mild loss at 500Hz which means there was mild loss present and therefore my hearing loss began in service and has been deteriorating ever since." During his May 2021 Board hearing, the Veteran reported that he had noticed worsening hearing acuity beginning right after separation from service and worsening over the years thereafter. As to the Veteran's left ear hearing loss disability, the Board concludes that the left ear hearing loss disability had its onset multiple years after service and is not otherwise related to service. In reaching that opinion, the Board has considered the findings and conclusions from the July 2015 VA examination report. The examiner discussed the Veteran's normal hearing acuity in the left ear at the time of his separation examinations from both periods of service. In addition, there were no threshold shifts in either ear at any level during either period of service. Again, while the Veteran had hearing acuity of 30 decibels at 500 Hertz during his February 1972 reentrance examination, by the time of separation from service hearing acuity at 500 Hertz was measured as 5 decibels. The Board is cognizant of the Court's holding in Hensley v. Brown, 5 Vet. App. 155 (1993) that, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Here, the VA examiner found that the absence of threshold shifts during service was an indication that the noise exposure did not cause damage or an injury to the left ear. The examiner did find a shift in the right ear that was a basis for service connection in that ear. In this case, however, there is no evidence of such a connection other than the Veteran's lay statements that, as will be discussed in greater detail below, are afforded limited probative weight. The Board recognizes that during the May 2021 Board hearing the Veteran's representative indicated that they would provide a private medical opinion, but no such opinion has been received. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as hearing loss, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, neither left ear hearing loss nor an organic disease of the nervous system was noted during service, including at the time of examination shortly before separation from his active periods of service. Indeed, prior to his separations from service the Veteran explicitly denied a history of hearing loss or ear trouble. Thus, the Board finds that there is no credible contention of a continuity of decreased hearing acuity or hearing loss from service. To the extent that the Veteran reported during the May 2021 Board hearing that the onset of hearing problems was shortly after separation from service, as there is nothing to indicate that the period was within one year of separation, the Board finds no evidence of hearing loss problems within one year of separation from service. As such, the provisions of 38 C.F.R. § 3.303(b) are not for application. As to the Veteran's general contentions that his left ear hearing loss disability was incurred in or is otherwise caused by his service, the Board finds his opinions to be of limited probative weight. His report of noise exposure during training and combat service, including his service in Vietnam, is accepted as credible because it is consistent with his MOS and circumstances of service that included combat action. Although the Veteran may be competent to report decreased hearing acuity, he has not contended that he experienced decreased hearing acuity in service, which is consistent with his denial of a history of hearing loss prior to separation from service. Given the absence of a continuity of symptomatology from service and the Veteran's lack of education, training, and experience in regards to diagnosing a left ear hearing loss disability and relating such disability to noise exposure years prior to the diagnosis and onset of symptoms, the Board affords his representations as to a relationship between his current left ear hearing loss disability and in-service noise exposure extremely limited probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, no medical professional has found that the Veteran's left ear hearing loss disability was caused by service. The Veteran does not contend that he experienced ongoing hearing problems from service and, indeed, explicitly denied such problems at separation from both periods of service. In light of the evidence, the Board concludes that the preponderance of the credible evidence is against the left ear hearing loss claim and that service connection for a left ear hearing loss disability is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Increased Rating 2. Entitlement to an initial rating greater than 70 percent for PTSD Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The Veteran is in receipt of a 70 percent rating for his PTSD. The Veteran claims the rating does not accurately depict the severity of his current condition. The General Rating Formula for Mental Disorders provides, in pertinent part: 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); inability to establish and maintain effective relationships................................ 70 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 name......................... 100 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). 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. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify "the level of occupational and social impairment caused by those signs and symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment." See also Mauerhan v. Principi, 16 Vet. App. 436 (2002) (holding that the list of symptoms in the disability rating schedule for psychiatric disabilities is not exhaustive. Additionally, a Global Assessment of Functioning (GAF) score was often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). The Board recognizes that GAF scores are not utilized in the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders). Further, the Court recently held in Golden v. Shulkin, 29 Vet. App. 221 (2018) that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. In June 2014, the Veteran sought initial treatment with VA for mental health problems. He denied any previous treatment for such problems. At that time, the Veteran denied any suicidal or homicidal ideation, intent, or plans. Speech and thought processes were normal, his insight and judgment were fair, and he had a tense mood / affect. In August 2014, the Veteran reported ongoing issues with anger and fighting, having been arrested many times. He denied suicidal or homicidal thoughts or plans. Symptoms included disturbed sleep, irritability or aggression, and depression. The Veteran had initially worked for the post office, but had problems with fights with coworkers and ultimately quit. Thereafter, he worked for 20 years in the prison system before retiring but later worked as a security guard at the National Zoo. A May 2015 statement from the Veteran's wife noted that he had been exhibiting erratic behavior, such as social isolation, paranoia, exaggerated startle response, irritability, and nightmares. A May 2015 statement from the Veteran noted similar symptoms, including his report that he had cut off his relationships with friends and family as much as possible. In June 2015, the Veteran reported that he was taking a yoga class and found it difficult to focus at times during the class. The Veteran underwent a VA examination in June 2015. The examiner concluded that the Veteran's PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he was married with adult children and that his relationship with each of them was good. He had regular interactions with his family. The Veteran was not working and had not worked for the past 12 months. The Veteran dealt with his symptoms by drinking heavily. That said, he had become increasingly irritable and unable to hold a job due to anger. He had numerous nightmares, including having hit his wife in his sleep. He woke up with sweats. The Veteran also was hypervigilant, had intrusive thoughts and memories, had suicidal thoughts, and felt emotional detachment and social isolation. Other symptoms included chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, inability to establish and maintain effective relationships, and impaired impulse control such as unprovoked irritability with periods of violence. The Veteran denied hallucinations, but described true flashbacks. He denied suicidal or homicidal thoughts, ideation, plans or intent. The Veteran was fully oriented and was able to maintain personal hygiene and basic activities of daily living. There was no memory loss or panic attacks. In his February 2018 substantive appeal, the Veteran indicated that he had "gross impairment in thought process where I cannot recall many things. My memory loss is severely deteriorating. I must write everything down now or I will not remember, my wife has to constant remind [me] of things I once had memorized, like my social security number. If I'm in the store with my wife and she walks off, I forget where I'm at and end up getting lost in the store. My memory was once intact and I had no issues but now it has severely worsened. I continue to get stressed out at the slightest things. Being around a crowd of people bothers me, I get paranoid and begin hyperventilating. I have to walk away and have my wife wait in line instead. All this depresses and frustrates me. I have these angry outbursts when I can't perform at my best, it's frustrating to not be the man I once was. And so, I respectfully request my PTSD evaluation be increased to 100%." In correspondence in March 2018, the Veteran's VA clinical psychiatrist noted that the Veteran continued to have symptom exacerbations; specifically crowd and social avoidance, easy agitation and anger, poor sleep and nightmares. The psychiatrist noted that the Veteran did not get along with his family and could not fit into any form of employment. He offered the opinion that the Veteran should be rated as 90 to 100 percent disabled but did not discuss many symptoms associated with the 100 percent criteria. Associated counseling records show that the Veteran denied suicidal thoughts but did have a history of fighting. He displayed depression, disturbed sleep and irritability but had no thought process, speech, or personality changes. On intake in August 2014, he had no delusions, hallucinations or memory deficits. Reports of his participation in group therapy through January 2018 do not reveal any more severe symptoms or loss of function. During his May 2021 Board hearing, the Veteran reported ongoing symptoms of flashbacks, nightmares, paranoia, hypersensitivity, and social isolation. His testimony was thoughtful and articulate. As an initial matter, the Board acknowledges that the Veteran's statements in his February 2018 substantive appeal suggest a worsening of his PTSD symptoms since the last VA examination. That said, the Board concludes that given his clear description of the worsening symptoms in that statement and during his May 2021 Board hearing and discussion of how the symptoms affect his functioning that the Board has sufficient evidence on which to evaluate his claim and, as such, finds that a remand for another VA examination is unnecessary. Based on the evidence of record, a rating greater than 70 percent is not appropriate for any period of time on appeal because the Veteran does not have total social and occupational impairment. Although the Veteran clearly has a serious disability, the evidence does not show that there is total occupational and social impairment. He does not have symptoms such as gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; or persistent danger of hurting self or others (while he has angry outbursts and reportedly damaged his home, he has not resorted to physical violence against people and has no suicidal or homicidal ideation, plans, or intent, as he has not been determined to be a danger to himself or others by medical professionals). The Board acknowledges the Veteran's contention that he has gross impairment of thought processes, but he specifically attributed that impairment to memory loss. There is no evidence to support gross impairment of thought processes based on the Veteran's ability to communicate verbally and in writing. The Veteran also has discussed problems with violence, but multiple medical providers have examined the Veteran and concluded that he was not a danger to others. The Veteran's main contention is memory loss, such as forgetting his social security number and where he is when left alone in a store. The Board does not find that those reports are sufficient to warrant a 100 percent rating. The Veteran has not reported forgetting his own name or the names of close relatives and, in any case, his overall symptomatology more closely approximates deficiencies in most areas, but less than total social and occupational impairment. As to occupational functioning, the issue of entitlement to TDIU is remanded herein. Even presuming total occupational impairment for the purposes of this decision, the Veteran clearly does not have total impairment of social functioning at any time during the appellate process. The Veteran consistently has reported having a good relationship with his wife and children. He has described social isolation, but remains able to function in social situations, such as attending yoga sessions and other public situations. Given his good relationship with his immediate family members, the Board does not find the foregoing to represent total social impairment for any period on appeal. Thus, the Veteran does not have both total social and occupational impairment sufficient to warrant a total schedular rating. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned herein. Again, in determining that a rating in excess of 70 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 70 percent rating. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating greater than 70 percent is not warranted for any period of time that is covered by this claim. REASONS FOR REMAND 1. Entitlement to an increased rating greater than 10 percent for residuals fragment wound left thigh with retained foreign bodies During his May 2021 Board hearing, the Veteran testified that he originally filed his claim for increased rating for the left thigh due to worsening left thigh pain affecting his activities. In addition, during the May 2021 Board hearing the Veteran and his representative argued that the July 2015 VA examination was inadequate, as it contained many inaccuracies and misstatements. For example, the Veteran's representative pointed out that the examination report listed a different diagnostic code than the one under which the Veteran was rated and also failed to discuss cardinal signs and symptoms necessary for an accurate rating of the disability, to include loss of power, weakness, lower thresholds for fatigue, and other factors. The Veteran also alleged that while the examination report noted normal ranges of motion in several joints that during the examination the examiner never actually tested the motion in those joints or the muscle strength of the associated muscle groups. In light of these allegations, the Board concludes that a remand for an additional VA examination is necessary. 2. Entitlement to TDIU The Veteran's TDIU claim is inextricably intertwined with the increased rating claim for the left thigh, as the requested development ordered could help establish entitlement to TDIU. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals fragment would left thigh with retained foreign bodies. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. After the above is complete, readjudicate the Veteran's claims. If a complete grant of benefits is not granted as to all claims including a TDIU, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.