Citation Nr: 22018409 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-21 550 DATE: March 29, 2022 ORDER Entitlement to an initial disability rating of 70 percent, but no more, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a disability rating in excess of 50 percent for bilateral hearing loss is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PTSD was manifested by symptoms that more closely approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. Throughout the period on appeal, the Veteran's left ear hearing loss manifested in no worse than Level VI hearing impairment and his right ear hearing loss manifested in no worse than Level VI hearing impairment. 3. The Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history and training. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 70 percent, but no more, for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.125, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a disability rating in excess of 50 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.85, Diagnostic Code (DC) 6100. 3. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1967 to December 1969 and from June 1971 to June 1974. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2021 decision, the Board remand the appeal to conduct additional development. The case was then returned to the Board following the issuance of a September 2021 Supplemental Statement of the Case (SSOC). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.902(c). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking work. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an increased rating for PTSD Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The 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. 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). The Veteran's service-connected PTSD has been evaluated pursuant to 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 50 percent rating is warranted when there is 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 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 is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. A maximum 100 percent rating is warranted where there is 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. The Veteran contends in his June 2018 notice of disagreement that he is entitled to a higher rating for PTSD. During a March 2018 VA examination, the Veteran reported that he lived with his wife of 45 years and that he spent his free time riding his motorcycle. See March 2018 VA examination. The examiner confirmed the Veteran's diagnosis of PTSD. The Veteran's symptoms included anxiety and suspiciousness, but his concentration, attention, judgment and insight were normal. The VA examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks during periods of significant stress. The Veteran denied any history of psychological hospitalizations, suicide attempts, individual or group therapy or psychological medications. He denied any current thoughts of harming or killing himself or others. The VA examiner opined the Veteran's PTSD was chronic with mild symptoms that did not require ongoing treatment. During a July 2018 medical appointment, the Veteran reported hyper-alertness, irritability, and an exaggerated startle response. See October 2018 VA Medical Treatment Records. The examiner stated the Veteran's evaluation indicated severe PTSD symptoms including frequent distressing dreams and memories, avoidance behaviors, irritability, aggressiveness, feelings of anger, guilt, shame, loss of interest in activities, difficulty sleeping, and feelings of anger. During an August 2018 medical appointment, the Veteran reported symptoms of fear, vivid dreams and distress. See August 2018 VA Medical Treatment Records. In a subsequent August 2018 follow-up medical appointment the Veteran reported moderate depression, poor sleep, limited social engagement and isolation. During a September 2018 VA examination, the Veteran reported that he lived with his wife of 45 years, that he was meeting with mental health providers at VA and that he drank two shots of vodka each night. The examiner confirmed the Veteran's diagnosis of PTSD. The Veteran's symptoms included chronic sleep impairment, suspiciousness, anxiety and disturbances of mood and motivation, but his insight, judgment, and impulse control were intact. The VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran denied any suicidal or homicidal ideations, hallucinations or delusions. During an August 2020 private psychological examination, the Veteran reported irritability, agitation, isolation and withdrawal and sleep disturbances. See August 2020 Private Medical Treatment Records. The examiner, Dr. J.M. (J.M., PsyD) stated the Veteran's medical history indicated symptoms including impaired impulse control, anxiety, suspiciousness, chronic sleep impairment, disturbance of mood and motivation, depression, and decreased concentration and focus. Dr. J.M. opined that the Veteran had occupational and social impairment with deficiencies in most areas including work, school, family relations, thinking, judgment and mood. Further, the examiner opined the Veteran's level of frustration and irritability was consistent with impaired judgment and impulse control and that the Veteran was unable to relate appropriately to others including family and coworkers. Finally, Dr. J.M opined that the Veteran was unable to maintain employment due to his PTSD symptoms, specifically that his ability to adapt to change, respond to routine work pressures, exercise sound judgment, maintain attention and concentration, relate to coworkers and supervisors and understand complex instructions was severely impaired. During a July 2021 VA examination, the examiner confirmed the Veteran's diagnosis of PTSD. The Veteran reported he felt edgy, conflicted, had short term memory problems, survivor's guilt and avoided activities. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The VA examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran denied suicidal or homicidal ideations. The Board finds that during the period of appeal, the record supports the Veteran's PTSD symptoms were commensurate with a 70 percent rating. The Veteran reported symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, irritability, anger, disturbance of mood and motivation, decreased concentration and focus including impaired impulse control, and decreased concentration and focus. The Veteran had difficulty maintaining social relationships. However, despite his reported difficulty with work and social relationships due to symptoms of his mental disorder, the Veteran is not totally impaired due to persistent hallucinations or delusions, persistent danger to himself or to others, or unable to perform the necessary activities of daily living. See August 2020 Private Medical Treatment Records and July 2021 VA examinations. The Board finds that the evidence fails to persuasively support total occupational and social impairment. A rating of 70 percent, but no more, for PTSD is warranted. 38 C.F.R. § 4.130. Therefore, the Board finds that affording the Veteran the benefit of the doubt, he is entitled to a rating of 70 percent throughout the period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. To this extent, the Veteran's appeal is granted. 2. Entitlement to an increased rating for bilateral hearing loss To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The 38 C.F.R. § 4.85 provides Table VI to determine a Roman numeral designation (I through XI) for hearing impairment for each ear based on puretone thresholds and Maryland CNC testing. Table VII is then utilized to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. The "puretone threshold average" as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. Where there are one of two exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. The first is where the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second is where the puretone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. 38 C.F.R. § 4.86 (b). When the evidence fails to show an exceptional pattern of hearing impairment is present, then Table VI will be used to assign a Roman numeral designation. In describing the evidence, the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. A September 2018 VA examination indicated puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 70 75 75 70 LEFT 60 70 85 80 74 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 84 percent in the right ear and of 80 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85-4.86, Table VI, the Veteran's right ear hearing loss is assigned a numeric designation of III and his left ear hearing loss is assigned a numeric designation of V. Under Table VIA, the Veteran's right ear hearing loss is assigned a numeric designation of VI and his left ear hearing loss is assigned a numeric designation of VI. According to Table VII, a numeric designation of VI and VI indicate that the Veteran meets the criteria for a rating of 30 percent for bilateral heating loss. A July 2021 VA examination indicated puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 65 75 75 80 74 LEFT 65 70 80 80 74 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 80 percent in the right ear and of 74 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85-4.86, Table VI, the Veteran's right ear hearing loss is assigned a numeric designation of V and his left ear hearing loss is assigned a numeric designation of VI. Under Table VIA, the Veteran's right ear hearing loss is assigned a numeric designation of VI and his left ear hearing loss is assigned a numeric designation of VI. According to Table VII, a numeric designation of VI and VI indicate that the Veteran meets the criteria for a rating of 30 percent for bilateral hearing loss. As the Board finds the evidence fails to persuasively support that the Veteran is entitled to a rating in excess of 50 percent for his bilateral hearing loss, there is no benefit of the doubt to resolve in his favor and claim is denied. 38 U.S.C. § 5107(b). 3. Entitlement to a TDIU The Veteran contends that he is unable to keep or maintain substantially gainful employment because of impairments caused by his service-connected disabilities. For the reasons that follow, the Board finds the Veteran's claim is warranted, and TDIU is granted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). The term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) has two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran is presently service-connected for PTSD, rated at 70 percent, effective December 5, 2017, bilateral hearing loss rated at 50 percent, effective October 8, 2008, and tinnitus rated at 10 percent, effective October 8, 2008. Therefore, for the period on appeal, the Veteran met the schedular TDIU requirements pursuant to 38 C.F.R. § 4.16(a). The Veteran has a high school diploma and completed one year of college with additional job-related training. See August 2018 Application for Increased Compensation based on Unemployability. The Veteran reported that he was employed until 1997 in production machine maintenance and left his employment due to his service-connected disabilities. Id. Since that time he has worked part time and currently is self-employed managing his rental properties, however he stated he hires contractors to perform necessary repairs. Id. On average, he reports working 4 to 6 hours a week. See September 2018 Statement in Support of Claim. In an October 2018 response, the Veteran's employer S.S.S. indicated he was employed as a security officer for eight months until his employment ended in April 2005. See October 2018 Correspondence. During a July 2021 VA examination for the Veteran's bilateral hearing loss and tinnitus, the examiner opined the Veteran's bilateral hearing loss and tinnitus would impact his ability to work as the condition made it difficult for him to hear conversation. See July 2021 VA examination. However, a September 2018 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus would not impact his ability to work if he was provided with the proper hearing and adaptive devices. See September 2018 VA examination. A September 2018 VA examiner opined that the Veteran's PTSD symptoms would cause job-related difficulties including intrusive thoughts that would interfere with his ability to stay focused on the task at hand, difficulty accepting supervision or instructions without becoming angry, and sleep impairment would cause fatigue at work and concentration and focus would be difficult. In a June 2020 statement, the Veteran reported that his disabilities prevented him from maintaining employment, and he currently only owned two rental properties that he was planning to sell. He stated that he had difficulty concentrating, understanding conversation and tolerating sounds because they triggered his symptoms. He reported fatigue, irritability, sleep problems, problems with memory, and difficulty interacting with others. As discussed above, in an August 2020 private psychological opinion, Dr. J.M. opined that the Veteran had occupational and social impairment with deficiencies in most areas including work, school, family relations, thinking, judgment and mood. See August 2020 Private Medical Treatment Records. Dr. J.M. opined the Veteran's level of frustration and irritability were consistent with impaired judgment and impulse control due to anger and that he was unable to relate appropriately to others, including family and coworkers, in a work setting. Id. Further, Dr. J.M opined that the Veteran was unable to maintain employment due to his PTSD symptoms, specifically that his ability to adapt to change, respond to routine work pressures, exercise sound judgment, maintain attention and concentration, relate to coworkers and supervisors and understand complex instructions was severely impaired. Id. During a July 2021 VA examination, the examiner confirmed the Veteran's diagnosis of PTSD. The VA examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Board is satisfied that the current evidence of record indicates the Veteran is prevented from securing and maintaining substantially gainful employment due to his service-connected disabilities. His service-connected disabilities caused depression, anxiety, sleep impairment, difficulty with concentration, disturbance of mood and motivation, impaired memory, fatigue, impaired impulse control, impaired judgment, and difficulty maintaining relationships with family and coworkers. Although there is evidence that suggests the Veteran might be able to maintain employment, the August 2020 private psychological evaluation indicates his combined PTSD symptoms are severe enough to preclude employment. Overall, his current symptoms caused by his disabilities prohibit him from obtaining and maintaining substantially gainful employment. Therefore, the Board finds there is an equal balance of evidence establishing he was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). Accordingly, after resolving all doubt in favor of the Veteran, the Board concludes that entitlement to a schedular TDIU rating due to service-connected disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jack S. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, Associate 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.