Citation Nr: 18160534
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 17-00 904
DATE:	December 28, 2018
ORDER
A compensable evaluation for left ear hearing loss is denied.
An evaluation in excess of 10 percent for tinnitus is denied.   
An evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. 
Entitlement to a finding of total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied.
FINDINGS OF FACT
1. Service-connected left ear hearing loss is manifested by no worse than Level I hearing acuity in the left ear, with symptoms such as difficulty hearing in noisy environments; right ear hearing loss is not service-connected.  
2. The Veteran has current tinnitus, marked by daily, consistent ringing in his ears.   
3. Service-connected PTSD is manifested by no worse than occupational and social impairment with decreased work efficiency.   
4. The Veteran’s service-connected disabilities collectively do not render him unable to secure and follow substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for a compensable evaluation of left ear hearing loss are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2. 4.3, 4.7, 4.10, 4.85, Diagnostic Code (DC) 6100 (2018). 
2. The criteria for an evaluation in excess of 10 percent for tinnitus are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Code 6260 (2018).
3. The criteria for an evaluation greater than 50 percent for PTSD are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018).
4. The criteria for a finding of TDIU are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Navy from August 1964 to September 1967.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from January 2015 and March 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).
Increased Rating
Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.
In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as staged ratings. Id.
If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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.
1. Evaluation of left ear hearing loss
Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedule takes into account the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Evaluations of defective hearing 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 the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. 
In addition, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the adjudicator will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 
If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of section 3.383 pertaining to special consideration for paired organs. 38 C.F.R. § 4.85(f).
An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85.
A VA test of the Veteran’s hearing in January 2017 showed:
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	 20	15	20	45	50
LEFT	20	20	25	50	55
The Veteran’s speech recognition score using the Maryland CNC Test for the right ear was 98 percent, and 96 percent for the left ear.  He has a pure tone threshold average decibel loss of 38.  His left ear has a Roman numeral designation for hearing impairment of I.  Since the Veteran is service-connected for impaired hearing in only his left ear, his non-service connected right ear is assigned a Roman Numeral designation for hearing impairment of I.  Intersection of the two levels results in a noncompensable rating.  The Board notes that the Veteran’s left ear does not demonstrate an exceptional pattern of hearing impairment under the provision of 38 C.F.R. § 4.86(a).  
The Veteran reports difficulty hearing in noisy environments and often having to ask people to repeat themselves in conversation.  He is competent and credible to report his symptoms.  To the extent the Veteran has impairment in his daily life, his inability to hear is contemplated by the hearing loss criteria, as the threshold guidelines were formulated to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.  The Veteran’s complaints related to actual functional impairment are therefore factored into the criteria as applied.   
A noncompensable rating does not mean that the Veteran’s hearing is normal. The grant of service connection acknowledges that the Veteran has hearing loss. Rather, the disability rating reflects that the Veteran’s degree of disability from his service-connected defective hearing does not meet VA’s criteria for a compensable rating.  In sum, the Veteran’s claim for increase must be denied.
2. Evaluation of tinnitus
Veteran reports consistent ringing that affects him daily.  
The Veteran is currently service-connected for tinnitus. As a result, he receives a 10 percent rating under 38 C.F.R. § 4.87, DC 6260, which addresses tinnitus and is the highest schedular rating available. There are no indications of manifestations of tinnitus that are not covered by the schedular criteria, nor does the Veteran allege any extraschedular entitlement.  As the rating criteria explicitly references tinnitus, the Board cannot rate his disability under any other diagnostic code. Copeland v. McDonald, 27 Vet. App. 333 (2015). Therefore, the Board finds that a disability rating in excess of 10 percent for tinnitus is not warranted.  
2. Entitlement to an evaluation in excess of 50 percent for PTSD
The Veteran is currently rated 50 percent disabled by PTSD effective February 25, 2011. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, is rated 50 percent disabling.
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, is rated 70 percent disabling.
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, is rated 100 percent disabling. 38 C.F.R. § 4.130.
The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013).
August 2011 VA treatment records show that the Veteran presented neatly in appearance, was friendly and cooperative, exhibited appropriate speech, and was oriented to time and place.  He demonstrated normal memory, appropriate affect, and fair judgment.  He reported sleep disturbance, but there was no evidence of disorder in his thoughts.  In a March 2012 counseling session, the Veteran agreed that his PTSD symptoms had generally decreased, though his depression had worsened.  The depression constituted a mood disturbance, as contemplated by a 30 or 50 percent rating.  Though he had a positive suicide screen in August 2012, there was no indication that he was suicidal at the time of the screen.  Instead, he reported that he had last experienced suicidal ideation three months prior to the screen.  His ideation at that time appear to have been passive, as there was no plan in place.  In December 2012 private treatment records, the Veteran reported anxiety, depression, and lack of motivation, difficulty concentrating, and mood disturbances.  
All of these symptoms are encompassed by a 30 or 50 percent rating.  Though the Veteran claimed to experience irritability, there was no evidence that his irritability had ever risen to the level of violence, as contemplated by a 70 percent rating.  The Veteran reported he had suicidal ideation in the past, but there was no evidence that he was experiencing suicidal ideation in December 2012.  The December 2012 examiner noted that the Veteran’s ability to maintain effective relationships was impaired, but did not say that the Veteran was unable to establish or maintain effective relationships.  A 50 percent rating covers difficulty in establishing and maintaining effective relationships.  During a March 2014 VA examination, the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, all symptoms encompassed by a 50 percent rating.  The examiner found that the Veteran had difficulty adapting to stressful circumstances and an inability to establish and maintain effective relationships.  During a September 2016 VA exam, the Veteran presented neatly groomed, oriented, mildly depressed, with goal-directed, logical speech.  His judgment, concentration, and memory were intact.  His symptoms included depressed mood, anxiety, sleep impairment, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships.  All of these symptoms are encompassed by 30 or 50 percent ratings.  
There was evidence of suicidal ideation, but the examiner found it to be passive without plan or intent.  The examiner noted that the Veteran experienced difficulty in adapting to stressful circumstances.  Notably, the examiner found that the Veteran’s level of occupational impairment was predominantly due to non-service-connected depression, with impairment due to PTSD being secondary.  After reviewing the case file and conducting a phone consultation with the Veteran, a forensic psychologist noted in a September 2016 report that the Veteran described depression and suicidal ideation, but the Veteran also said he would not act on those feelings.  Though the Veteran reported feeling isolated, he was still married and reported having one close friend.  Though the examiner indicated that the Veteran had difficulty adapting to stressful circumstances, as contemplated by a 70 percent rating, all of the Veteran’s other symptoms appear to be encompassed by lower ratings.  A November 2016 VA examiner found that the Veteran’s PTSD created difficulty for the Veteran in establishing and maintaining effective work and social relationships, as contemplated by a 50 percent rating.  The November 2016 examiner found that the Veteran had difficulty adapting to stressful circumstances.  This examiner also found that the Veteran’s occupational and social impairment were due to his depression, which is unrelated to his PTSD trauma, and more likely than not related to his stroke, heart bypass surgery, and death in his family.  After a phone interview with the Veteran, a forensic psychologist drafted a psychological consultation – addendum in November 2017.  Though the examiner reported that the Veteran experienced irritability, there was no indication that his feelings had ever escalated into physical violence.  The examiner did note that the Veteran experienced difficulty in establishing and maintaining work and social relationships, and difficulty adapting to stressful circumstances such as work.  The examiner did not find that the Veteran was completely incapable of establishing and maintaining relationships, nor did the examiner find that the Veteran was completely unable to function.  There is no evidence that the examiners are not competent or credible and their opinions are entitled to significant probative weight.  
Almost all of the Veteran’s symptoms are of the type contemplated by the 50 percent or lower rating criteria.  There is no evidence of total occupational and social impairment, 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 own name.  At all relevant times, his thought processes, speech, orientation, and memory have been normal.  
There is no evidence of active suicidal ideation.  The only evidence of suicidal ideation has been passive. While any suicidal ideation is concerning, a single symptom, without plan or real intent, is insufficient to swing the overall disability picture. There is no evidence of obsessional rituals, illogical speech, or near-continuous panic or depression that have affected the Veteran’s ability to function independently, appropriately and effectively.  There is no evidence of impaired impulse control or incidences of irritability resulting in physical violence.  The Veteran has presented neatly-groomed and oriented.  There is no indication that he has neglected his personal appearance or hygiene or become violent.  
There have been indications that the Veteran experiences difficulty in establishing and maintaining effective work and social relationships.  There have also been indications that he has difficulty adapting to stressful circumstances.  Both of these symptoms are contemplated by ratings in excess of 50 percent.  However, he remains married and even reports having one close friendship.  While he experienced problems with management in his IT position, his supervisor of nine years reported in an April 2011 letter that he and the Veteran connected well on a personal level, and that the Veteran treated him with respect.  The supervisor also reported that the Veteran was generally well-liked and accepted by his peers.  He reported that the Veteran always achieved measurable performance objectives and that his IT skills were never in question.  There is no evidence that the supervisor is not competent and credible to describe his observations of the Veteran.  Given the extended duration of their relationship and the supervisor’s opportunity to observe the Veteran under working conditions, the Board finds the supervisor’s letter most probative regarding his abilities to establish and maintain relationships and adapt to stressful circumstances.  Though he has experienced difficulty in adapting to stressful circumstances, this difficulty does not appear to rise to the level of severity contemplated by a seventy percent rating.  He succeeded in maintaining a job with a railroad for over 17 years, earning a college degree, and then working in information technology for nine years for the state of Oregon.      
While the Veteran presents signs and symptoms representative of multiple disability levels, the overall disability picture presented is best rated as 50 percent disabling.  Though he feels socially isolated, he continues to have some relationships with others.  The Veteran’s supervisor described him as being well-liked and accepted by his peers.  He remains married, has one friend, and doctors comment that while forming relationships is difficult, he retains the ability. He is irritable, depressed, and anxious, but such do not prevent him from functioning in his daily life.  He has maintained long-term employment at two different jobs and obtained a college degree.  Further, he has not shown or alleged he is prone to violence due to his PTSD. This disability picture warrants assignment of the current 50 percent rating.
The Veteran reported what appears to be passive suicidal ideation at times, which falls within the sphere of symptoms for a 70 percent rating.  However, despite the endorsements of suicidal thoughts, his thoughts have been passive, without plan or intent.  These symptoms are therefore not sufficient to elevate the PTSD evaluation to the next higher, 70 percent level.  
3. Entitlement to TDIU
Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16.
Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16(a). If the Veteran does not meet these standards, referral to the Director, Compensation and Pension Service, is possible is the Veteran is in fact unemployable due to service connected disability.  Here those are PTSD rated 50 percent disabling; tinnitus rated 10 percent disabling; and left ear hearing loss with a noncompensable rating.  
In January 2017, a VA examiner found that the Veteran’s hearing loss and tinnitus impacted ordinary conditions of daily life, including his ability to work.  However, the examiner concluded that the Veteran should be able to function well vocationally and at home, with appropriate amplification and possible tinnitus management.  No examiner has ever indicated that the Veteran’s PTSD has rendered him completely unable to function.  He is completely physically intact and could obtain substantially gainful employment in a physical or sedentary capacity.  Examiners have opined that the Veteran could function in a loosely supervised environment with supportive management.  There is no evidence that the examiners are not competent or credible and their opinions are entitled to significant probative weight.  
Though the Veteran alleges to have worked at 15 different jobs in 43 years, he quit most of them.  He was able to maintain two of his jobs long-term.  He worked at Southern Pacific Railroad for 17 ½ years.  He quit when they offered him a buyout program.  He obtained an Associate’s Degree in Supervisory Management and began working at Community Services Consortium.  Though he reports having mixed performance reviews and difficulties with authority figures, he was able to maintain employment there for nine years.  The Veteran’s supervisor of nine years from his most recent job noted his anger and distrust of authority figures.  Some of the supervisor’s comments support the frustration that the Veteran has described regarding a failure to maximize his potential in the workplace.  For example, the Veteran demonstrated unwillingness to accept a leadership role.  However, failing to reach one’s full potential is not the same as being unemployable.  Substantially gainful employment does not guarantee a certain level of employment, nor a certain type of job.  The Veteran’s supervisor reported that he always achieved measurable performance objectives and possessed unquestioned IT skills.  After being employed by Community Services Consortium for nine years, the Veteran reports that his position was going to be absorbed by the state of Oregon, and he thus opted for early retirement in 2008.  He has not sought additional employment since retiring from Community Services Consortium in 2008.  He reports that he feels he became too disabled to work in 2012, when the force of his PTSD caused him to realize that he was no longer fit to work in any environment.   
The Veteran reports that he cannot work well with others, but he did not allow any relational difficulties or difficulties adapting to stressful circumstances to prevent him from obtaining and maintaining gainful employment during the 
17 ½ years that he worked for the railroad or the nine years that he worked for Community Services Consortium.  His former supervisor of nine years felt that the Veteran connected with him well on a personal level, treated him with respect, and was generally well-liked and accepted by his peers.  

After reviewing the Veteran’s case file and conducting a phone interview with him, a private forensic psychologist drafted a November 2017 addendum.  He opined that the Veteran’s hostility, anger suspiciousness, depression, hypervigilance, social isolation, and interpersonal struggles make it very difficult to get along with coworkers and supervisors.  There is no evidence that the examiner is not competent and credible.  However, in light of the former supervisor’s long-term relationship with the Veteran and his opportunity to observe him in working conditions, the Board finds his assessment of the Veteran’s relational abilities to be more probative.    

The Board therefore finds that the Veteran is not precluded from securing and following substantially gainful employment.  His service-connected physical and mental disabilities, separately or in combination, would not prevent him from obtaining work.

 
WILLIAM H. DONNELLY 
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. McDermott, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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