Citation Nr: 22014995 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-51 853 DATE: March 16, 2022 ORDER Prior to June 24, 2021, an initial 30 percent rating, but no higher, for other specified trauma and stressor related disorder (acquired psychiatric disorder) is granted, subject to the laws and regulations governing the payment of monetary benefits. From June 24, 2021, an initial rating in excess of 30 percent for the Veteran's acquired psychiatric disorder is denied. Prior to May 27, 2021, entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Throughout the claims period, the Veteran's acquire psychiatric disorder has been productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform due to symptoms such as anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. 2. Prior to May 27, 2021, the Veteran had Level I hearing loss bilaterally that caused the Veteran difficulty with hearing conversations. CONCLUSIONS OF LAW 1. Prior to June 24, 2021, the criteria for an initial 30 percent rating, but no higher, for the Veteran's acquired psychiatric disability were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Since June 24, 2021, the criteria for an initial rating in excess of 30 percent for the Veteran's acquired psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. Prior to May 27, 2021, the criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to February 1970. The case is on appeal from an April 2015 rating decision. In December 2020, the Veteran testified at a Board hearing. In a March 2021 decision, the Board granted service connection for left ear hearing loss and remanded the claim of entitlement to an initial compensable rating for right ear hearing loss. In a May 2021 rating decision, the regional office (RO) implemented the Board's grant of service connection for left ear hearing loss. Therein, the RO recharacterized the disability as bilateral hearing loss. Thus, the Board will now consider the rating assigned for bilateral hearing loss. In a July 2021 rating decision, the RO also granted the Veteran a 100 percent rating for his bilateral hearing loss, effective May 27, 2021. This represents a full grant of the benefit sought for the period beginning May 27, 2021, and this portion of the increased rating claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). However, entitlement to a compensable rating for bilateral hearing loss remains before the Board. In March 2021, the Board also remanded claims of service connection for bilateral upper and lower extremity peripheral neuropathy. In a July 2021 rating decision, service connection was granted for diabetic peripheral neuropathy in the left and right lower extremities for the femoral and sciatic nerves and in the left and right upper extremities for all radicular groups. As this represents a full grant of the benefit sought, the claims for service connection in the bilateral upper and lower extremities are no longer before the Board. See Grantham, supra. Finally, the Board notes that in the July 2021 rating decision, a 30 percent rating effective June 24, 2021 was granted for the Veteran's acquired psychiatric disability. As this interim grant of an increased rating does not represent a full grant of the benefit sought, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). However, the issue has been recharacterized to reflect the grant of the 30 percent rating from June 24, 2021. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to an initial rating in excess of 10 percent for the Veteran's acquired psychiatric disability prior to June 24, 2021 and in excess of 30 percent thereafter The Veteran claims that the ratings currently assigned for his acquired psychiatric disability do not reflect the severity of his symptoms. Under Diagnostic Code 9411, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent evaluation contemplates 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss, (such as forgetting names, directions, and recent events). Id. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when a psychiatric disorder causes 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); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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, or for the veteran's own occupation or name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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." 38 C.F.R. § 4.126(a). In March 2015, the Veteran was afforded a VA examination of his acquired psychiatric disorder. The Veteran reported being married for 46 years and getting along reasonably well with his spouse. He reported going out to eat, on vacation, and playing clawhammer banjo in a local band. He reported being close with his family (his adult children and his grandchildren as well as 7 living siblings) and attending annual family reunions of 40-50 people. The examiner noted symptoms including avoidance and distress from flying and high bridges, hyperviligance, exaggerated startle response, and sleep disturbance resulting in 5-6 hours of sleep per night. There was no suicidal or homicidal ideation. At the December 2020 Board hearing, the Veteran testified that his acquired psychiatric disorder was productive of bad dreams, waking up screaming, sleep impairment and isolation and anger over the years. He stated that his family relations were good. He did have panic attacks a few times but was no longer having panic attacks. In June 2021, the Veteran was afforded another VA examination of his acquired psychiatric disability. The examiner found that the Veteran's disability was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform. The Veteran had been married for 51 years and has children, grandchildren, and great grandchildren. The Veteran also noted that he enjoyed fishing. The examiner found symptoms noted as hypervigilance, difficulty trusting others, nightmares, intrusive thoughts, chronic sleep impairment, mild memory/concentration problems, being easily startled, and difficulty establishing and maintaining effective work and social relationships. The Veteran was not cooperative with the examiner, expressing anger and distrust of VA. Prior to June 24, 2021, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran's acquired psychiatric disability. The Veteran noted at the March 2015 VA examination having symptoms such as avoidance behaviors, exaggerated startle response, and sleep disturbance. However, the Veteran described good relationships with his spouse, children, grandchildren, and other family members. The Veteran also noted activities such as playing a band, going out to eat, and going on vacations which indicate a productive social life. Similarly, from June 24, 2021, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's acquired psychiatric disability. The Veteran's symptoms at the June 2021 VA examination were similar to those noted at the March 2015 VA examination. The Veteran did also note mild memory loss, difficulty with social and work relationships and non-cooperation with the VA examiner. However, the Veteran reported continued good relations with his family and social interests such as fishing. Thus, the Veteran's psychological symptoms when considered as a whole indicate no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform and a rating in excess of 30 percent is not warranted. The Veteran's symptoms and disability picture do not more nearly approximate the criteria for a 50 percent rating or a 70 percent rating. The record consistently shows that the Veteran's hygiene and grooming have been good. His thought process has remained logical and intact, and while at times he has not been cooperative, he has not exhibited any impaired impulse control or spatial disorientation. Further, he has consistently denied experiencing delusions, hallucinations, or suicidal or homicidal ideation. While the Board acknowledges the Veteran reports that he believes he is entitled to a 100 percent rating for his acquired psychiatric disorder, and his frustration that a total rating has not been granted, the most persuasive evidence of record, including the Veteran's Board hearing testimony, VA treatment reports, and the VA examinations of record, does not show any symptoms of the frequency, duration, or severity required for a total rating. The evidence demonstrates that the Veteran has a close and enjoyable familial and social life which indicates no more than occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform tasks. In summary, even after affording the Veteran the benefit of the doubt, for the period prior to June 24, 2021, a rating of 30 percent, but no higher, for the Veteran's acquired psychiatric disorder is granted and a rating in excess of 30 percent for the Veteran's acquired psychiatric disorder is denied. 2. Entitlement to an initial compensable rating for bilateral hearing loss prior to May 27, 2021 The Veteran claims that the noncompensable rating assigned for his bilateral hearing loss prior to May 27, 2021, does not reflect the severity of the symptoms he experienced during that period. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). In March 2015, the Veteran was afforded a VA examination of his hearing loss, at which the following puretone thresholds were noted: HERTZ 1000 2000 3000 4000 Average RIGHT 20 45 65 65 49 LEFT 15 40 65 65 46 Speech discrimination scores were 96 percent bilaterally. This represents Level I hearing loss bilaterally. A September 2017 VA treatment record notes that the Veteran was not hard of hearing. A November 2020 VA treatment record reveals that the Veteran denied hearing loss. At the December 2020 hearing, the Veteran testified that he has difficulty hearing when there is background noise and difficulty hearing his spouse talk during conversations. The Veteran also noted that the left ear sometimes gets inflamed and hurts a lot, but it goes away. However, the Veteran reported that he was not receiving treatment for hearing loss. In May 2021, the Veteran was afforded another VA hearing loss examination, at which the following puretone thresholds were noted: HERTZ 1000 2000 3000 4000 Average RIGHT 60 80 100 100 85 LEFT 80 80 90 105 88.75 Speech discrimination scores were 14 percent for the right ear and 16 percent for the left ear. The Board finds that the VA examinations of record adequate as they include the required testing and reports of the Veteran's functional limitations due to his hearing loss which have been reported as difficulty hearing. The Board finds that, prior to May 27, 2021, an initial compensable rating for bilateral hearing loss is not warranted. Prior to May 27, 2021, the Veteran had Level I hearing loss bilaterally. Under Table VII, bilateral Level I hearing loss is to be assigned a noncompensable rating. The Veteran has also noted that, at least as of the December 2020 hearing, he was not receiving treatment for hearing loss. Further, the Veteran's difficulty understanding conversation and with speech recognition ability are contemplated by the noncompensable rating assigned. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran is also in receipt of a 10 percent rating for tinnitus, which compensates the Veteran for his constant tinnitus and is the highest schedular rating available. 38 C.F.R. § 4.86, DC 6260. The Veteran has also reported pain and heat in his ears that goes away. However, there is no indication in the Veteran's testimony that the pain or heat causes functional impairment beyond the difficulty hearing or tinnitus found on examination. Finally, the Board finds that the Veteran's more severe, profound hearing loss was first noted at the May 27, 2021, VA examination, which is the earliest ascertainable date at which the Veteran's hearing loss met the criteria for a higher rating. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Therefore, an initial compensable rating for bilateral hearing loss prior to May 27, 2021, is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. George 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.