Citation Nr: 22017793 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 16-27 429A DATE: March 26, 2022 ORDER Effective September 28, 2011, entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Effective June 24, 2016, entitlement to a 100 percent rating for PTSD is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 24, 2014, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Effective September 28, 2011, the Veteran's PTSD resulted in, at least, occupational and social impairment with deficiencies in most areas. 2. Effective June 24, 2016, the Veteran's PTSD resulted in total occupational and social impairment. 3. Prior to December 24, 2014, the evidence of record fails to demonstrate that the Veteran's service-connected disabilities rendered him unable to secure or follow gainful employment. CONCLUSIONS OF LAW 1. Effective September 28, 2011, the criteria for a rating of 70 percent 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. Effective June 24, 2016, the criteria for a rating of 100 percent 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. 3. Prior to December 24, 2014, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1967 to December 1969. He testified before the undersigned at a videoconference hearing in April 2019. A transcript of the hearing has been associated with the claims file. The appeal was remanded by the Board in January 2020 and again in July 2021. Lastly, the Board observes that the file includes records of VA treatment that were associated with the claims file after the last adjudication of the Veteran's appeal in a February 2022 supplemental statement of the case. These records are either irrelevant to the issues currently on appeal, or are duplicative and cumulative of evidence previously of record. As such, there is no prejudice in reaching a decision at this time. Increased Rating PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. The Veteran contends that his PTSD warrants a 70 percent rating for the entirety of the appeal period. See April 2019 Hearing Transcript. By way of history, an August 2012 granted service connection for PTSD and assigned a 30 percent rating effective September 28, 2011. The Veteran timely appealed the rating assigned. A May 2016 rating decision increased the rating to 50 percent disabling, effective September 28, 2011. An August 2017 rating decision increased the rating to 70 percent disabling, effective June 24, 2016. Thus, the issue on appeal is whether the Veteran is entitled to a rating in excess of 50 percent from September 28, 2011 to June 24, 2016, and in excess of 70 percent thereafter. 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 50 percent or higher prior to June 24, 2016 and higher than 70 percent thereafter. 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 name. For the reasons that follow, the Board finds that a 70 percent rating is warranted from September 28, 2011, the date of the Veteran's claim, and a 100 percent rating is warranted effective June 24, 2016. Prior to June 24, 2016, the evidence includes the report of a VA examination dated March 2012, VA treatment records, and the Veteran's and his wife's statements. In a September 2011 statement, the Veteran reported that he was suffering from severe stress, extreme anger, hypersensitivity, confusion, and memory loss. At a March 2012 VA examination, the Veteran reported a 37-year positive marriage and a relationship with his children and grandchildren. He said he attended church but did not engage in any other hobbies or interests. He said he was presently working at the post office and was on short-term disability but would be returning to his job. Noted symptoms included anxiety, depressed mood, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. It was noted that the Veteran was capable of handling his own affairs. In a May 2013 statement, the Veteran's wife indicated that the Veteran had seemed to have a "change" in mental status, and was showing signs of confusion, delirium, hallucinations, and anger. An April 2014 VA mental health treatment note reflects the Veteran's reports of symptoms including frequent flashbacks, nightmares during the day, hypervigilance, exaggerated startled response, emotional numbing, crowd avoidance, social withdrawal, nightmares 2-3 times per week, sleep avoidance secondary to nightmares, decreased attention and concentration, and a sense of hopelessness and helplessness. He endorsed passive thoughts of death without means, motive, or intent to commit suicide. The Veteran denied experiencing hallucinations in June 2014. In light of the foregoing, the Board concludes that a rating of 70 percent, but no higher, is warranted for the appeal period from September 28, 2011 through June 24, 2016. In this regard, after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's PTSD symptoms manifested in occupational and social impairment with deficiencies in most areas. Although the March 2012 VA examination reflected somewhat mild symptoms, the VA treatment records, taken with statements from the Veteran and his wife, reflect to the Board a more severe disability picture than shown at the March 2012 examination. Indeed, the Veteran endorsed serious symptoms, including frequent flashbacks, recurrent nightmares and "day"-mares, sleep avoidance secondary to nightmares, a sense of hopelessness and helplessness, and even suicidal ideation; symptoms contemplated by a 70 percent rating. Accordingly, a 70 percent rating is granted from September 28, 2011. The Board finds that the evidence shows a marked worsening of symptoms around the time of the June 2016 VA PTSD examination that have continued through the present, as reflected in VA treatment records, the Veteran's statements, and testimony from his wife. For that reason, the Board will resolve all doubt in the Veteran's favor and find that a 100 percent rating is warranted as of June 24, 2016. At a VA examination on June 24, 2016, the Veteran said that he felt moody, emotional, irritable, angry, and sad and depressed all the time. He reported trauma-related nightmares three to five times a week and experienced flashbacks two to three times a week and daily intrusive thoughts. He said he cried all the time and was "mostly numb to things." He said he slept approximately two hours per night because he felt like he had to be "on guard." He reported no appetite and low motivation. Cognitively, he reported significant memory problems, problems with attention, some word finding problems, and impaired judgment. He reported having a hallucination of what he called a "little man" ever since he was in Vietnam. He said he frequently talked to the "little man" who mostly kept him calm but other times encouraged the Veteran to be violent towards others. The Veteran's wife reported that the vision mostly occurred when the Veteran was stressed or disturbed. The Veteran reported that the vision was present in the room during the examination. He reported frequent paranoia, feeling like people were out to get him and following him. In a March 2017 statement, the Veteran's wife reiterated that the Veteran often hallucinated and spoke to his "little invisible friend," which was scary for her. She said he was on constant watch and had spoken at least three or more times about suicide. She said that he told her he dreamt of killing her. She said she attended counseling for wives of Veterans' and that her and the Veteran attended their own counseling sessions. In November 2017, the Veteran underwent a neurology consultation through VA. He described hallucinations where he saw a "little man" wearing a white gown. He also reported that he saw visions of dead people walking. The neurologist stated the Veteran was noted to have some findings suggestive of dementia with Lewy bodies, including REM behavior disorder, visual hallucinations, and memory changes. In a May 2018 statement, the Veteran said that he experienced anxiety attacks, frequent mood swings, forgetfulness, and chronic sleep impairment. He said that he had traumatic nightmares at least five times a week, that he talked to himself a lot, and hallucinated a little friend who told him what to do. He said that he took many medications that did not seem to help and that he wished it "would all stop." At a September 2018 VA examination, the VA examiner concluded that the Veteran had a neurocognitive disorder in addition to PTSD. Symptoms attributable to the neurocognitive disorder included persistent delusions and hallucinations, disorientation, impaired abstract thinking, illogical speech, and memory problems. All other symptoms were noted to be attributable to the Veteran's PTSD. The Veteran's wife, who was present at the examination, described an overall worsening in symptoms, which included hallucinatory episodes, easy agitation, increasingly serious memory problems, and increased social withdrawal. The Veteran's wife stated that she was reluctant to leave him by himself at home as he could leave items in the oven, for example. A December 2018 VA treatment note reflects a provider's statement that the Veteran had a possible unspecified dementia in the setting of his PTSD; however, the fact that the Veteran only had one hallucination was atypical for Lewy body dementia. The provider stated that it was not clear that he had a neurodegenerative disorder but that he would be tracked in the mental health clinic and with medication. At his April 2019 Board hearing, the Veteran testified that his PTSD symptoms had been relatively consistent throughout the appeal period and that a 70 percent rating should have been assigned from June 2016. He said that he was moody, unable to get along with others, and had engaged in verbal violence when he worked at a post office. He said he avoided going out in public. At a June 2019 VA treatment appointment, the Veteran's wife said that the Veteran's memory had worsened. She said he left doors open. He denied hallucinations at the time but said when he laid down at night, he saw shadows on the walls. By June 2020, VA treatment records reflect that the Veteran was no longer driving nor handling his finances. His wife said that she did not let him in the kitchen. He reported continued hallucinations and felt like the hallucinations had worsened in the context of the Covid-19 pandemic. In December 2020, the Veteran told a VA provider that he continued to hallucinate. His wife said that she had put an alarm on the back door due to a worry that he would leave the house. They said that the Veteran stayed home and when they did go out, his wife drove. The Veteran underwent another VA PTSD examination in November 2021. The examiner summarized the Veteran's level of impairment as that of total occupational and social impairment. The examiner also stated that it was not possible to differentiate what symptoms were attributable to each mental health diagnosis. The Veteran described his 40-year marriage in positive terms and reported a close relationship with his children and grandchildren. He said he participated in groups for veterans. He said he was unable to go out alone. He explained that he retired from the post office in 2013 and had not worked since. The Veteran's wife stated that the Veteran was so paranoid that he stayed in the garage all night "on guard duty." She said that his symptoms had increased during the Covid-19 pandemic. She said that he suffered from serious road rage and significant mood swings. Notably, the examiner concluded that the Veteran's neurocognitive disorder was at least as likely as not related to his PTSD. In light of the November 2021 VA examiner's finding that the Veteran's PTSD manifested in total occupational and social impairment, the finding that neurocognitive disorder was at least as likely as not caused by the Veteran's PTSD, taken together with evidence showing that around 2016, the Veteran's hallucinations onset to the point where the Veteran underwent a VA neurology consultation through VA in November 2017 due to concerns of dementia, the Board will resolve all doubt and find that that a 100 percent rating is warranted as of June 24, 2016. The symptoms of persistent hallucinations and delusions, inability to perform activities of daily living, disorientation, and memory loss, which were initially thought by a September 2018 VA examiner to be related to a neurocognitive disorder separate and apart from his service-connected PTSD, have now been established as being aggravated by the Veteran's PTSD. The Board finds that the Veteran's symptoms are so serious as to rise to the level contemplated by a 100 percent rating. The Board notes that the Agency of Original Jurisdiction (AOJ) specifically acknowledged the November 2021 VA examiner's finding of total and occupational impairment, but declined to award a 100 percent rating in light of the statements at the examination that the Veteran had a close relationship with his wife, children, and grandchildren and was a participant in various veteran's groups. While it is true that the Veteran reported those positive relationships and engagement in various groups, the Board also observes that the Veteran's wife has been present at nearly every VA medical appointment and VA examination dated throughout the appeal period. It was noted that the Veteran only left his home with his wife present, and that despite the positive marriage and relationship, the Veteran still demonstrates total impairment insofar as he is nearly fully reliant on his wife to assist with daily activities and appointments. Accordingly, a 100 percent rating is granted effective June 24, 2016. Entitlement to a TDIU Prior to December 24, 2014 The Veteran is in receipt of a TDIU as of December 24, 2014. As noted by the Board in July 2021, the claim for a TDIU was raised during the pendency of the appeal for a higher rating for PTSD. As the initial rating for PTSD predates the current effective date for TDIU, the Board noted that the issue of entitlement to a TDIU remained on appeal for the period prior to December 24, 2014, despite the AOJ's determination that the grant of a TDIU was a full grant of the benefit sought. See July 2020 rating decision. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). From September 28, 2011 through December 24, 2014, which is the period of time that the Veteran is not in receipt of a TDIU, the Veteran, by way of this decision, has a 70 percent rating for PTSD. Thus, the Veteran has one disability rated 60 percent or more Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). However, for the period prior to December 24, 2014, the Board must conclude that the Veteran's PTSD alone did not prevent him from finding and maintaining substantially gainful employment. The Board acknowledges that during that time period, the Veteran's PTSD symptoms seemed to worsen; indeed, the Board has assigned a 70 percent rating for the disability. However, at a VA PTSD examination in March 2012, the Veteran told the examiner that he was working full-time at the U.S. Post Office, was on short-term disability due to a work injury, but was planning on returning to work. The Veteran also told a VA examiner in June 2016 that he did not leave his job at the post office due to his psychiatric disorder but that he left due to the pain in his legs from his neuropathy. The Veteran's neuropathies, however, were not service-connected until December 24, 2014, and thus the Board must consider his neuropathy disabilities as nonservice-connected disabilities during the time period prior to December 24, 2014. Therefore, for the time period prior to December 24, 2014, the Veteran's service-connected disability of PTSD, did not, in and of itself, prevent the Veteran from finding and maintaining substantially gainful employment, and the appeal for entitlement to a TDIU prior to December 24, 2014, must be denied. REASONS FOR REMAND The Board finds that a remand is again necessary before an informed decision can be made as to the Veteran's service-connection claim for hearing loss. In this regard, the Board previously remanded the claim for a new opinion because VA examiners in July 2015 and September 2018 based their negative opinions on a finding that the Veteran's hearing acuity did not undergo any negative threshold shifts during service, suggesting that delayed onset hearing loss would not be likely. The July 2015 VA examiner specifically cited to the Institute of Medicine report's finding that there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after such noise exposure and that therefore there was no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, to include conceded military noise exposure. In a June 2021 brief, the Veteran's representative referenced various research articles suggesting that loud noise exposure could have effects on hearing later in life. Specifically, the representative described an article which discussed the effects of prior auditory damage in accelerating hearing loss and the fact that a single exposure could accelerate cochlear aging. Given that submission, the Board remanded the claim so that a VA examiner could address that research and provide an adequate medical opinion. Unfortunately, in the opinion received in November 2021, a VA examiner essentially offered the same rationale as the prior examiners. The examiner acknowledged the Veteran's hazardous noise exposure and noted that there was no significant permanent shift in hearing thresholds beyond test, even after ASA to ISO conversion. The examiner then noted that "[a]lthough medical research referenced by the Veteran's representative suggests noise exposure can impact hearing acuity after the damaging noise has stopped," the IOM has reported that hearing loss from noise injuries occurs immediately after exposure, and that there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. The examiner did not adequately explain why the IOM report was more persuasive than the research cited by the Veteran's representative. Moreover, the Veteran's representative cited to additional research from the National Institutes of Health in a March 2022 brief, again suggesting that noise-induced hearing loss may take a long time to be noticeable, which was not considered by the prior examiner. For these reasons, the Board will remand for an addendum opinion. The matter is REMANDED for the following action: 1. Obtain an addendum opinion addressing the etiology of the Veteran's bilateral hearing loss disability. The examiner is asked to review the entire claims file, and then respond to the following: Indicate whether the Veteran's bilateral hearing loss at least as likely as not (approximately 50 percent probability) had onset in service or is otherwise related to the Veteran's conceded in-service hazardous noise exposure. In providing a response, the examiner must consider address the research submitted by the Veteran's representative in June 2021 and March 2022 briefs. If certain research is determined to be more persuasive than other research, as it relates to this Veteran's disability, the reason should be explained. All medical opinions should be supported by a medical explanation or rationale. (Continued on Next Page) 2. Thereafter, readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.