13-11 846
13-11 846
| Board of Vet. App. | Sep 27, 2017Background
- Veteran served in USAF 1969–1973 as an airplane mechanic; claimed service connection for hearing loss and increased rating for service‑connected PTSD.
- AOJ earlier (2011) granted service connection for PTSD with 30% effective August 31, 2010; later (Jan 2016) increased PTSD to 70% effective Jan 12, 2016 and granted service connection for right ear hearing loss and tinnitus (issues now resolved or partially resolved at AOJ).
- Board remanded in March 2015 for updated VA examinations and a medical etiology opinion for bilateral hearing loss; remand development completed and returned to Board.
- Medical record shows in‑service noise exposure (mechanic; jet engine noise) and audiograms from 1969–1973 with later significant threshold shifts at 4000 Hz; VA audiologist opined right‑ear noise‑induced loss and was inconsistent about the 1970 left‑ear audiogram.
- PTSD records and VA exams (May 2011, Jan 2016) document chronic symptoms (isolation, hypervigilance, nightmares, impaired sleep, irritability, avoidance) producing occupational and social impairment with deficiencies in most areas but not total impairment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — left ear hearing loss | Left‑ear loss is due to in‑service noise exposure (continuity and audiograms) | AOJ/VA audiologist argued 1970 audiogram was testing error/temporary condition; no nexus | Granted: service connection for left ear hearing loss (doubt resolved for claimant) |
| Initial rating for PTSD (period beginning Aug 31, 2010) | PTSD symptoms warrant >30% (argue 70% effective from filing) | AOJ had 30% (then 70% only from Jan 12, 2016); VA contends evidence supports 70% only from Jan 12, 2016 | Granted 70% effective Aug 31, 2010 (Board finds symptomatology constant and approximates 70%) |
| Increased rating for PTSD (>70%) | Plaintiff seeks rating higher than 70% | VA argues no evidence of total occupational/social impairment required for 100% | Denied: no period of total impairment; 70% is highest warranted |
| Extra‑schedular consideration for PTSD | Plaintiff implicitly argues schedular criteria inadequate | VA finds symptoms consistent with schedular 70% criteria; no marked interference or frequent hospitalization | Denied: schedular criteria adequately contemplate the disability picture |
Key Cases Cited
- Grantham v. Brown, 114 F.3d 1156 (Fed. Cir.) (grant during appeal requires new NOD to continue appellate review of downstream issues)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (limits lay competency for complex medical etiology opinions)
- Hensley v. Brown, 5 Vet. App. 155 (Vet. App.) (normal hearing thresholds defined)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit of the doubt rule; approximate balance standard)
- Vazquez‑Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir.) (mental disorder ratings are symptom‑driven and require evaluation of impairment in most areas)
- Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir.) (factfinder may draw reasonable inferences from record evidence)