Citation Nr: 18160338
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-43 137
DATE:	December 27, 2018
ORDER
The appeal is dismissed with respect to the issues of entitlement to service connection for diabetes mellitus.
Service connection for a low back disability is denied.
Service connection for a right knee disability is denied.
Service connection for sleep apnea is denied.
Higher ratings for bilateral hearing loss, currently evaluated as noncompensable prior to September 23, 2014 and 10 percent disabling thereafter, are denied.
A higher rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling, is denied.
 
FINDINGS OF FACT
1. At the March 2017 Board videoconference hearing, prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal of entitlement to service connection for diabetes mellitus. 
2. The Veteran’s current degenerative disc disease of the lumbar spine did not have onset during service, was not caused by his service, and did not manifest within one year of separation from service.
3. The Veteran’s current arthritis of the right knee did not have onset during service, was not caused by his service, and did not manifest within one year of separation from service.
4. The Veteran’s current sleep apnea did not have onset during active service, and was not otherwise caused by his service.
5. Prior to September 23, 2014, the Veteran’s service-connected bilateral hearing loss was manifested by no worse than Level IV hearing acuity in the right ear and Level II hearing acuity in the left ear.
6. From September 23, 2014, the Veteran’s service-connected bilateral hearing loss has been manifested by no worse than Level III hearing acuity in the right ear and Level IV hearing acuity in the left ear.
7. Throughout the period on appeal, the Veteran’s service-connected PTSD has been manifested by no more than 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 symptoms such as: anxiety, depression, anger, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for diabetes mellitus, have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).
2. The criteria for service connection for a low back disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017).
3. The criteria for service connection for a right knee disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017).
4. The criteria for service connection for sleep apnea have not been met.   38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307 (2017).
5.  The criteria for higher ratings for bilateral hearing loss, currently evaluated as noncompensable prior to September 23, 2014 and 10 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017).
6.  The criteria for a higher rating for PTSD, currently evaluated as 30 percent disabling, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1966 to August 1968.
Pertinent to the hearing loss claim, during the pendency of the appeal, in a July 2016 rating decision, the agency of original jurisdiction (AOJ) increased the assigned rating to 10 percent, effective September 23, 2014.  Insofar as higher ratings are available for this disability and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).
Withdrawal
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative.  Id. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran’s full understanding of the consequences.  DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).  Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies.  38 C.F.R. § 20.204 (c).
1. Entitlement to service connection for diabetes mellitus.
During the March 2017 videoconference hearing, the Veteran indicated that he would like to withdrawal the appeal of his service connection for diabetes mellitus claim because there was no evidence of a current disability.  His representative reiterated this request.  The Board therefore finds that the Veteran’s statement meets the criteria for withdrawal of the appeal of entitlement to service connection for diabetes mellitus.
Because the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review entitlement to service connection for diabetes mellitus and the claim is dismissed.
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause.  38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).
2. Entitlement to service connection for low back disability.
The Veteran contends that his current low back disability is due to a slip and fall ambush incident during service.  In his August 2013 notice of disagreement, he reported that his back was injured while carrying equipment during service.  He claims that he has had continuous back pain in and since service.
The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service.
The Board concludes that, while the Veteran has degenerative disc disease of the lumbar spine (DDD), which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), it was not chronic in service or manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established.  The first medical evidence of lower back pain was in 2009, approximately 40 years after separation from service.  A diagnosis of DDD was not provided until 2012.
Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s DDD of the lumbar spine and an in-service injury, event or disease.  38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).  
Service treatment records contain no complaints of or treatment for a back condition or related symptoms.  On June 1968 separation, in a report of medical history the Veteran marked “no” to recurrent back pain.  Clinical evaluation of the spine was normal.
Post-service the Veteran established VA care in May 2007.  During this visit he reported no health issues.  He first complained of low back pain in August 2009.  During this VA visit, he reported occasional low back pain that resolves.  An assessment of low back pain was provided and it was noted that the Veteran has a possible lumbar strain improving without medication.
The August 2012 VA examiner opined that the Veteran’s DDD of the lumbar spine is not at least as likely as not related to an in-service injury, event, or disease, including repeated falls while serving in Vietnam.  The rationale was that his DDD of the lumbar spine is caused by the natural aging process.  As for the Veteran’s claimed in-service injury to the lower back, the examiner explained that service treatment records are negative for any complaints of or treatment for a lumbar spine condition.  Based on x-ray evidence and medical literature, the examiner concluded that DDD of the lumbar spine is due to the natural aging process.  
In a July 2012 letter, the Veteran’s spouse reported that the Veteran has back pain.
In an October 2012 letter, a receptionist stated that the Veteran received chiropractic treatment from 1970 to 1988 for back pain that the Veteran reported was due to an injury that occurred during service.
January 2014 private medical records document complaints of low back pain attributed to a motor vehicle accident.  The Veteran described a history of back pain attributed to service and post-service chiropractic treatment.  The treating private physician opined that given the chronic nature of the Veteran’s lumbar condition and advanced stages of degeneration, it is more likely than not the type of initial compression trauma which could lead to his current lumbar degenerative condition.  In a February 2017 letter, the private physician opined the same.  The Board interprets these letters as an opinion that the Veteran’s lower back disability is related to a motor vehicle accident, not service.  
While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of DDD of the lumbar spine.  The issue is medically complex, as it requires knowledge of symptoms reported after service and a diagnosis provided many years later.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Here, the Veteran testified that he first sought private treatment for back symptoms immediately after service in 1968, but such records are not associated with the claims file.  Although the Veteran submitted an October 2012 letter from a receptionist stating that he sought treatment for his back condition in 1968, there is no indication whether a diagnosis was provided.  Notably, the receptionist’s letter appears to be largely based on the Veteran’s statements.  Further, despite establishing VA care in 2007 he did not complain of back pain until 2009 which was attributed to a possible lumbar strain.  Similarly, in January 2014 and February 2017 letters a private physician attributed the Veteran’s current lower back disability to a motor vehicle accident.  As such, the Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to the natural aging process, including the August 2012 VA examiner’s opinion.
For the reasons stated above, the Board finds that the preponderance of evidence is against the claim of entitlement to service connection for a low back disability and the appeal must be denied. There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
3. Entitlement to service connection for a right knee disability.
The Veteran contends that his current right knee disability is due to a slip and fall ambush incident during service.  He reports that he fell many times during service on his knees, but did not seek medical attention.  
The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service.
The Board concludes that, while the Veteran has arthritis of the right knee, which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), it was not chronic in service or manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established.  Private treatment records show the Veteran first complained of right knee pain in 2000, more than 30 years after separation from service.  A diagnosis of arthritis was not provided until 2011.
Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s arthritis of the right knee and an in-service injury, event or disease.  38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).  
Service treatment records contain no complaints of or treatment for a right knee condition or related symptoms.  On separation, in a June 1968 report of medical history, the Veteran marked “no” to having a trick or locked knee.  Clinical evaluation of the lower extremities was normal.
Post-service April 2000 private treatment records document complaints of right knee pain.  The Veteran reported a history of two arthroscopic surgeries.  X-rays of the right knee showed no abnormalities.  Diagnoses of right knee pain and right lateral collateral ligament strain were provided.  
The Veteran established VA care in May 2007 and reported having no health issues or problems.  He complained of right knee pain in June 2010 with an onset of two months prior.  July 2010 x-rays showed no acute osseous or articular abnormalities.  The first diagnosis of arthritis is contained in 2011 VA treatment records.  April 2011 magnetic resonance imaging (MRI) of the right knee showed early degenerative changes and suggestion of mild genu deformity.  May 2011 VA treatment records document the Veteran’s report of 10 months of right knee pain without injury.  He reported he was a runner but recently stopped running due to pain.   He reported history of right knee arthroscopy in the 1990s.  May 2011 x-rays continued to show arthritis.  August 2013 VA treatment records document the Veteran’s complaints of right knee pain with an onset of 3 years prior.  He also reported knee pain beginning in the 1980’s.
The August 2012 VA examiner opined that the Veteran’s arthritis of the right knee is not at least as likely as not related to an in-service injury, event, or disease, including repeated falls while serving in Vietnam.  The examiner explained that arthritis is the most common joint disorder due to the natural aging process.  The examiner acknowledged evidence of mild genu deformity, and stated that it was not caused by service, including the claimed in-service injury.  Notably, there are no contradictory medical opinions associated with the claims file.
In a July 2012 letter, the Veteran’s spouse reported that he has right knee swelling. 
While the Veteran believes his arthritis of the right knee is related to an in-service injury, event, or disease, including slip and fall injuries, he is not competent to provide a nexus opinion in this case.  The issue is medically complex, as it requires knowledge of symptoms reported after service and a diagnosis provided many years later.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence of record, including the August 2012 VA examiner’s opinion that attributed the Veteran’s current right knee disability to the natural aging process.
For the reasons stated above, the Board finds that the preponderance of evidence is against the claim of entitlement to service connection for a right knee disability and the appeal must be denied. There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
4. Entitlement to service connection for sleep apnea.
The Veteran contends that he has sleep apnea due to service.  At the hearing, he testified that he is unsure as to whether he had sleep problems during service, but he may have had problems within 6 months of returning from deployment in Vietnam. 
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
Service treatment records contain no complaints of or treatment for sleep apnea or related symptoms or any suspicion that the Veteran has sleep apnea.  On separation, in a June 1968 Report of medical history, the Veteran marked “no” to frequent trouble sleeping.
December 2012 VA treatment records contain a request for a sleep study test.  The Veteran reported having problems when sleeping on his back, including sleep interruptions.  He was scheduled for a sleep study exam in January 2013.  An assessment of sleep disorder, presentation not very typical of sleep apnea, was provided.  The claims file indicates that a diagnosis of sleep apnea was provided in 2013.  
Considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for sleep apnea because there is no nexus to service.  As indicated, service treatment records are negative for any report of or treatment for or suspicion of sleep apnea.  At the March 2017 hearing, the Veteran testified that he was unsure whether he had sleep problems during service and acknowledged that he was not provided a diagnosis until he sought VA treatment, which was in 2013, approximately 45 years after separation from service.  Although the presence of symptoms is not the same thing as seeking treatment for symptoms, this long period of time without evidence of seeking treatment has a tendency to weigh against the claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Veteran has not identified any outstanding records.
The Board finds that the evidence does not establish an in-service injury, disease, or relevant event with regard to the claimed sleep apnea.  Therefore, VA has no duty to provide an examination.  Accordingly, and based on this evidentiary posture, the Board concludes that a nexus to service is not demonstrated.  As such, service connection is not warranted.
The only evidence of record suggesting a link or nexus between the Veteran’s current sleep apnea and service comes from the Veteran himself.  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  Although the Veteran contends that his sleep apnea was caused by service, he has provided conflicting statements regarding the nature and timing of the disability.  As indicated, during the March 2017 hearing he indicated that he was unsure whether he had sleep problems during service.  He testified himself that he did not seek treatment for sleep problems until establishing VA care.  As such, his statements regarding the onset of his disability are lacking in probative value. 
Accordingly, the preponderance of the evidence is against granting service connection for sleep apnea, on any theory of entitlement raised by the Veteran or the record.  Thus, there is no reasonable doubt to be resolved in the Veteran’s favor, and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).
5. Entitlement to higher ratings for bilateral hearing loss, evaluated as noncompensable prior to September 23, 2014, and 10 percent thereafter.
As background, in a May 2006 rating decision, the AOJ granted service connection for bilateral hearing loss and assigned a noncompensable (0 percent) rating, effective December 26, 2005.  The Veteran did not initiate and appeal of the rating decision.  In an August 2013 application, he requested a higher rating for his service-connected bilateral hearing loss.  In an April 2014 rating decision, the AOJ continued the noncompensable rating assigned.  The Veteran indicated disagreement with the rating decision and preserved his appeal rights.  During the pendency of the appeal, in a July 2016 rating decision, the AOJ assigned a 10 percent disability rating for hearing loss, effective September 23, 2014.  Inasmuch as higher ratings are available, a staged rating claim is presently before the Board.
The Veteran contends that he is entitled to higher ratings for his hearing loss disability.  He is currently assigned a noncompensable rating prior to September 23, 2014 and a 10 percent rating thereafter under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).
Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters.  Id.  Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear.  Id. 
Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone 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 pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. 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.
The Veteran was afforded a VA examination in March 2014.  The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 30, 40, 70, and 70 dB respectively; for left ear, auditory thresholds in the same frequencies were recorded as 35, 50, 60 and 60 dB respectively. Average loss in the right ear was listed as 53 dB and in the left ear was listed as 51 dB.  Speech recognition score was 76 percent in the right ear and 88 percent in the left ear.  The results of this examination correspond to Level IV in the right ear and Level II in the left ear.  38 C.F.R. § 4.85 (b).  When these values are applied to Table VII, a noncompensable rating is assigned.  38 C.F.R. § 4.85.  As for functional impact, the Veteran reported the inability to hear well in communication situations and the use of hearing aids.
The Veteran submitted a private hearing loss disability benefits questionnaire (DBQ) dated September 2014.  The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 50, 55, 60, and 70 dB respectively; for the left ear, auditory thresholds in the same frequencies were recorded as 50, 50, 60, and 65 dB respectively.  Average loss in the right ear was 59 dB and left ear was 56 dB.  Speech discrimination scores were 84 percent in the right ear and 80 percent in the left ear.  The results of this examination correspond to Level III in the right ear and Level IV in the left ear.  38 C.F.R. § 4.85 (b).  When these values are applied to Table VII, a 10 percent disability rating is assigned.  38 C.F.R. § 4.85.  As for functional impact, the Veteran reported difficulty hearing people talk.  May 2016 VA treatment records contain a completed earwash and the Veteran’s report of hearing “a lot better.”
At the March 2017 hearing, the Veteran testified that his hearing loss symptoms worsened since his last VA examination.  However, there is no indication of any such worsening in the claims file.  The Veteran has not provided any details as to why he believes his condition has worsened.  Further, May 2016 VA treatment records document his report of hearing a lot better.  As such, the evidence does not reflect that his hearing loss symptoms have worsened since his last examination.
Ratings 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). The evidence here does not show that the Veteran’s bilateral hearing loss reached a compensable level of severity prior to September 23, 2014 – date of private hearing loss DBQ.  Further, from this date, the evidence does not show that the Veteran’s hearing loss warrants a rating in excess of 10 percent.  
The Board acknowledges the Veteran’s contentions that his hearing loss warrants higher ratings.  His statements are competent evidence as to his personal observations regarding his symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, the Veteran is without audiological training and, therefore, his statements are not competent to provide an opinion regarding his current level of hearing loss under the Rating Schedule. 
In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran’s claim of a compensable rating for bilateral hearing loss prior to September 23, 2014, and in excess of 10 percent thereafter, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
6. Entitlement to a higher rating for PTSD, currently evaluated as 30 percent disabling.
As background, in January 2011 rating decision, the AOJ granted service connection for PTSD and assigned a 30 percent rating, effective May 21, 2010.  The Veteran did not initiate and appeal of the rating decision.  In an August 2013 application, he requested a higher rating for his service-connected PTSD.  In an April 2014 rating decision, the AOJ denied the claim.  He indicated disagreement with the rating decision and preserved his appeal rights.  
The Veteran claims that his PTSD warrants a rating in excess of 30 percent.  His disability is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).
Turning to the rating criteria, the Board first observes that the symptoms listed in VA’s general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as 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). 
Under the General Rating Formula for Mental Disorders, a 30 percent evaluation for PTSD will be assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, without 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130.
An evaluation of 50 percent is warranted for PTSD with 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. See Id. 
A 70 percent evaluation is warranted for PTSD with 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. See Id. 
A 100 percent evaluation is warranted for PTSD with total occupational and social impairment, due to symptoms such as the following: 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. See Id. 
When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also, 38 C.F.R. § 3.102; Mauerhan v. Principi, 16 Vet. App. 436 (2002) (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels.). 
The record includes VA examination reports, VA and private treatment records, and lay statements from the Veteran. All of these records have been reviewed by the Board, although they will not all be discussed in assessing the rating assigned to the Veteran’s psychiatric disability.
The Veteran participated in VA group counseling.  From August 2013 to November 2013, his participation was described as alert, minimal, interacted, and attentive while engaging in the learning process.  In September 2013, he complained of sleep impairment.  A February 2014 PHQ-2 screen for depression was negative.  He reported sleep problems treated with medication, avoidance, and that he dislikes groups.  He denied other manic or psychotic symptoms.  On mental status examination, he was pleasant and cooperative.  Speech was normal, mood euthymic, and affect congruent.  He denied delusions, hallucinations, and suicidal and homicidal ideations.  The Veteran was alert and oriented in all spheres with intact insight and judgment.  It was noted that his coping skills were somewhat limited.
The Veteran was afforded a VA examination in March 2014.  He reported that he lives with his wife and participates in a church choir.  He also goes to the gym and attends PTSD group therapy weekly.  The Veteran stated that he helps his family and friends restore cars, if asked, but spends most of his time alone with his dog.  He reported symptoms of anxiety and chronic sleep impairment.  On mental status examination, he appeared neat with good eye contact.  His attitude was cooperative with a flat affect, but normal mood.  Attention, concentration, memory, and abstract reasoning were intact.  Speech was normal.  Judgment and insight fair.  He reported hearing noises at times, but denied delusions and panic attacks.  The Veteran reported sleep impairment, including getting up to check the perimeter and sitting in the living room until sunrise.  He denied inappropriate behavior, violence, and homicidal ideation.  He reported an incident where he was mistaken for another person and threatened that his property would be taken and sold for payment.  In response, the Veteran threatened to shoot the person who came to his property.  The incident involved mistaken identity and was resolved.  The Veteran denied any intent to harm another person and reported that he has never been violent.  The examiner concluded that the Veteran had 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 medication.
In August 2014 the Veteran sought a second opinion from a private physician.  He reported an increase in nightmares, startle response, avoidance behavior, and having a “quick temper.”  He also reported symptoms of depression and bad concentration, but denied suicidal ideations and hallucinations.  On mental status examination, he appeared well groomed with a cooperative attitude.  His mood was appropriate with a full range affect.  Speech was normal.  Thought process, content, and cognition were normal.  He was alert and oriented in all spheres with average intelligence and judgment.  Attention and concentration were intact.  The Veteran was able to perform all immediate, recent, and remote memory tests.  As for functional impact, the private physician noted that the Veteran was prone to isolation and would work well in an environment where he did not have to associate with others.
The Veteran submitted a private PTSD DBQ dated November 2014.  Symptoms of nightmares, trouble sleeping, intrusive thoughts, flashbacks, avoidance, and hyperarousal behavior were noted.  Additional symptoms of depressed mood, anxiety, suspiciousness, near continuous depression, chronic sleep impairment, disturbance of motivation and mood, and obsessional rituals were also noted.  The examiner concluded 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.
May 2016 VA group counseling records document the Veteran’s report of sleep impairment, avoidance behavior, and anger.  His mental status examination was generally normal and an assessment of “doing fairly well” was provided.  At the March 2017 hearing, the Veteran testified that his symptoms related to PTSD have worsened since his last VA examination.  Specifically, he claimed an increase in nightmares.  The Board notes that the above medical records already take into account his report of an increase in sleep impairment and disturbance.  During 2013 VA group counseling sessions, he reported an increase in sleep disturbance.  The March 2014 and November 2014 VA examination reports also document his report of chronic sleep impairment.  The Veteran has not alleged a worsening of any other symptoms, aside from sleep impairment.  His current 30 percent rating takes into consideration his sleep impairment.  As such, the evidence does not reflect that the Veteran’s PTSD symptoms have worsened since his last VA examination. 
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Based on the foregoing, the Board finds that the evidence is against granting a rating in excess of 30 percent for the Veteran’s PTSD.  The evidence does not show that his symptoms have been of the type and degree contemplated by the criteria for a 50 percent disability rating.  Although the November 2014 DBQ documents disturbances of motivation and mood, the Veteran’s symptoms are more akin to the 30 percent rating criteria already assigned.  The evidence does not show a flattened affect, abnormal speech, panic attacks, difficulty understanding complex commands, impairment in short- or long-term memory, impaired judgment, or impaired abstract thinking.  All symptoms that would warrant a 50 percent disability rating.  On the contrary, throughout the period on appeal, mental status examinations have generally been normal.  Further, the Veteran has reported healthy relationships with his wife, friends, and participation in his church choir. The preponderance of the evidence is against the assignment of a rating higher than 30 percent for the Veteran’s PTSD on a schedular basis for the period on appeal. 38 U.S.C. § 5107 (a).
 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Amanda Baker, 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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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