Citation Nr: 0814496 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-03 408A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. What evaluation is warranted for post traumatic stress disorder (PTSD) since December 2, 2002? 2. What evaluation is warranted for bilateral hearing loss since December 2, 2002? 3. Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from January 1970 to September 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle Washington. The appeal is REMANDED, in part, to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran has a Level I hearing acuity bilaterally. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA failed to fully comply with the provisions of 38 U.S.C.A. § 5103 prior to the rating decision in question. The record, however, shows that any prejudice that failure caused was cured by the fact that VA notified the veteran in January 2004 statement of the case as well as in correspondence dated January and February 2007, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence he was to provide, and what part VA would attempt to obtain. The statement of the case specifically informed the veteran of the rating criteria which would provide a basis for an increased rating. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The January 2007 letter informed the claimant of the need to submit all pertinent evidence in his possession. Additionally, January and February 2007 letters provided adequate notice of how effective dates are assigned. The claim was readjudicated in the October 2007 and February 2008 supplemental statements of the case. The claimant has been afforded a meaningful opportunity to participate in the adjudication of the claims, and in the statement of the case he was provided actual notice of the rating criteria used to evaluate the disorders at issue. The claimant was provided the opportunity to present pertinent evidence in light of the notice provided. Because the veteran has actual notice of the rating criteria, and because the claim was readjudicated after notice was provided no prejudice exists. There is not a scintilla of evidence of any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, neither the appellant nor his representative have suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Analysis In a July 2003 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective from December 2, 2002. The present appeal involves the veteran's claim that the severity of his service-connected bilateral hearing loss warrants a higher rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Audiological examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometric tests. The horizontal lines in Table VI (in 38 C.F.R. § 4.86) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. §§ 4.85(c), 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist 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). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be deprived by the mechanical application of the Ratings Schedule to the numeric designations assigned after eudiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Following a review of the record, the Board finds that the probative evidence shows that the veteran is not entitled to an initial compensable rating for bilateral hearing loss. On audiological examination in June 2003, evaluation of the right ear revealed puretone thresholds, in decibels, of 20, 25, 45, and 75 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 41 decibels. Audiometric evaluation of the left ear revealed puretone thresholds of 15, 25, 35, and 40 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 29 decibels. Speech recognition was 100 percent in each ear. The examiner noted that the veteran had mild high frequency sensorineural hearing loss in the left hear and moderate to severe high frequency sensorineural hearing loss in the right ear. On audiological examination in March 2004, evaluation of the right ear revealed puretone thresholds, in decibels, of 20, 30, 45, and 75 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 43 decibels. Audiometric evaluation of the left ear revealed puretone thresholds of 15, 25, 35, and 40 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 29 decibels. Speech recognition was 100 percent in each ear. The examiner noted that the veteran had mild high frequency sensorineural hearing loss in the left hear and moderate to severe high frequency sensorineural hearing loss in the right ear. On audiological examination in March 2007, evaluation of the right ear revealed puretone thresholds, in decibels, of 20, 25, 45, and 75 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 41 decibels. Audiometric evaluation of the left ear revealed puretone thresholds of 25, 35, 40, and 55 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 39 decibels. Speech recognition was 92 percent in each ear. The examiner noted that the veteran had mild to moderate sensorineural hearing loss with high frequency hearing loss in both ears. These audiological examinations do not show the veteran to have an exceptional pattern of hearing loss in either ear. 38 C.F.R. § 4.86(a) and (b). The veteran also submitted VA outpatient records containing diagnoses that are consistent with the findings of the VA audiological examinations. In June 2003, under Table VI, the veteran's puretone threshold average of 41 decibels and speech recognition of 100 percent indicates that his hearing acuity was Level I in the right ear. The veteran's puretone threshold average of 29 decibels and speech recognition of 100 percent indicates that his hearing acuity was Level I in the left ear. In March 2004, under Table VI, the veteran's puretone threshold average of 43 decibels and speech recognition of 100 percent indicates that his hearing acuity was Level I in the right ear. The veteran's puretone threshold average of 29 decibels and speech recognition of 100 percent indicates that his hearing acuity was Level I in the left ear. In March 2007, under Table VI, the veteran's puretone threshold average of 41 decibels and speech recognition of 92 percent indicates that his hearing acuity was Level I in the right ear. The veteran's puretone threshold average of 39 decibels and speech recognition of 92 percent indicates that his hearing acuity was Level I in the left ear. Under Table VII, Level I in the right ear and Level I in the left ear allows for a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The veteran was afforded a travel board hearing before the undersigned veteran's law judge. During his hearing, he testified that he used hearing aids but that he found them annoying, and that he had difficulty following conversations because he does not always pick up the whole thing. Notwithstanding these difficulties, since the veteran has not met the criteria for a compensable rating at any time since the grant of service connection, a compensable rating for bilateral hearing loss is not warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER A compensable rating for bilateral hearing loss is denied. REMAND By a July 2003 rating decision, the RO granted service connection for PTSD, and assigned a rating of 50 percent, effective December 2, 2002. The veteran appealed, asserting that his PTSD warranted at least a 70 percent rating. The veteran was afforded VA PTSD examinations in June 2003 and March 2007. At the June 2003 examination, the veteran reported substantial trouble with interpersonal relationships, suicidal ideation, chronic sleep disturbance, intrusive thoughts, avoidance, anger, problems with concentration, hypervigilence, nightmares, being easily startled, and being social isolated. The examiner diagnosed chronic, moderately severe PTSD, and assigned a Global Assessment of Functioning (GAF) score of 60. At the March 2007 examination, the veteran reported insomnia, nightmares, irritability, avoidance, outbursts of anger, hypervigilance, difficulty concentrating, and an exaggerated startle response. PTSD was diagnosed and a GAF score of 60 was assigned. During his February 2008 hearing, however, the veteran stated that his PTSD had worsened since the March 2007 examination. He reported that he was secluding himself, and that he felt uncomfortable leaving his room. He stated that his wife has to "drag him out." He reported increased anger and rage, especially while driving, suicidal ideation a couple of times a week, homicidal ideation, and high anxiety. The veteran's statements indicate that his symptomatology may have worsened since his last March 2007 VA examination. Whether an examination is sufficiently contemporaneous to properly rate the current severity of the veteran's disability depends on the particular circumstances of the individual case. Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, the veteran should undergo additional VA examinations of his PTSD in order to accurately assess the severity, symptomatology, and manifestations of his disability. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). The question of the veteran's entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is deferred pending completion of the development outlined below. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the veteran and ask him to identify any treatment he has received for PTSD since March 2007. If treatment records are identified, the RO should take the necessary steps to obtain them. If, after making reasonable efforts, the RO cannot locate such records, the RO must specifically document what attempts were made to locate the records, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the veteran should be afforded a VA examination to determine the current severity of his PTSD. The claims file must be provided to the examiner prior to the examination. All indicated studies and tests deemed necessary by the examiner should be accomplished and all results must be included in the examination report. A complete rationale for all opinions expressed must be provided. The examiner must assign an Axis V diagnosis (GAF score), consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Psychiatric Disorders, and explain what the assigned score represents. Additionally, the examiner must comment on the veteran's current level of social and occupational impairment due to his PTSD. The specific PTSD symptoms which cause social and occupational impairment must be identified and discussed. Any indications that the veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 3. The veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the foregoing, the RO should review the veteran's claim, including any evidence submitted after the February 2008 Supplemental Statement of the Case. If the determination is adverse to the veteran, he and his representative should be provided an appropriate supplemental statement of the case and given an opportunity to respond. The RO must ensure that the notice requirements of the Veterans Claims Act of 2000 as interpreted by Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008), to include notice of the provisions of 38 C.F.R. § 4.130 (2007) have been fulfilled. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs