Citation Nr: 0814709 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 03-12 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an extraschedular evaluation for post- traumatic stress disorder (PTSD) from October 22, 2003. 2. Entitlement to an extraschedular evaluation for bilateral hearing loss from November 21, 2001. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The veteran served on active duty from January 1960 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2002 and February 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board remanded the case in October 2005. In an August 2007 decision, the Board denied entitlement to higher initial ratings for PTSD and bilateral hearing loss on a schedular basis, but remanded the issues of entitlement to extraschedular evaluations for both disabilities. These claims have since been returned to the Board. As stated in the August 2007 Board decision, the veteran has raised the issue of entitlement to a total disability evaluation based on individual unemployability to service- connected disorders. This additional claim, however, still has not been developed and adjudicated by the RO. Hence, it is again referred to the RO for immediate consideration. The claim of entitlement to an extraschedular rating for post traumatic stress disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's bilateral hearing loss is not manifested by an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an extraschedular rating for bilateral hearing loss have not been met. 38 C.F.R. §§ 3.102, 3.321. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claim Assistance Act 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 did fail 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 through several letters dated from January 2002 through October 2005, as well as the February 2003 and May 2005 statements of the case of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The statements 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 relevant correspondence informed the claimant of the need to submit all pertinent evidence in his possession. The claims were readjudicated in a December 2007 supplemental statement of the case that specifically pertained to the provisions for an extraschedular rating. The veteran has been provided constructive notice on the availability of an increased rating on a staged basis since the effective date of service connection. Because extraschedular ratings are not warranted for reasons indicated below, any failure to provide notice concerning effective dates was harmless. The claimant has been afforded a meaningful opportunity to participate in the adjudication of the claims, and in the statements 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 claims have been readjudicated no prejudice exists. In summary, there is not a scintilla of evidence of any VA error in notifying or assisting the appellant that 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. Background and Analysis Generally, the provisions of the rating schedule are deemed to represent the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a). The degrees of disability specified under each applicable diagnostic code are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Applicable regulations further provide that in those cases which involve exceptional circumstances, an extraschedular evaluation may be assigned. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The veteran's bilateral hearing loss has been evaluated as noncompensable since November 21, 2001. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board's August 2007 decision denied entitlement to higher schedular rating for a bilateral hearing loss. The issue of entitlement to an increased rating on an extraschedular basis, however, was remanded for further development and RO initial adjudication, with respect to which the RO continued its denial of the benefit sought. Bilateral Hearing Loss On examination in June 2002 by an audiologist, the examination provider determined that using VA criteria the veteran had moderate to severe sensorineural hearing loss right side, and mild to moderately severe hearing loss on the left. While the numerical findings reported as to audiometric frequencies at specified thresholds are not set forth in further detail, it warrants observation that the prior Board decision of August 2007 that considered this data along with subsequent findings, determined that it did not at any point require assigning a compensable evaluation under the applicable rating criteria. A September 2002 statement from the veteran described having had problems associated with hearing loss when attempting to hold conversations which impacted his family and social relationships, and capacity for participation in social activities that required relatively acute hearing. The report of a March 2005 audiological evaluation completed at a private clinic indicated an impression of mild to moderate sensorineural hearing loss, more pronounced on the right side. A statement from the veteran's spouse dated that month described his hearing loss as having recently become worse, mentioning difficulties at times with holding conversations, and participation in recreational activities such as attending live theater and movies. VA examination in August 2006 revealed that the veteran had a moderately severe to severe sensorineural hearing loss on the right, and mild to moderately severe hearing loss on the left. The examiner further stated that he had inquired into the veteran's employment, and found that he was successfully self-employed in the seafood processing business until deciding it was no longer profitable (in the early-1990s). Based on the overall record, the examiner considered it unlikely that military service noise damage was the direct or proximate cause of the veteran's hearing loss, tinnitus or state of employment. The application of the provisions of 38 C.F.R. § 3.321 is not required in accordance with rating the veteran's service- connected bilateral hearing loss. As a general matter, the rating schedule provides for evaluating hearing loss under numerical designations based on the results of puretone audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To the extent an extraschedular rating might otherwise be warranted beyond this prescribed criteria, the medical evidence reflects that the August 2006 VA examiner did not consider hearing loss to be a significant factor in the veteran's state of employment, given his employment history and current examination results. The additional statements provided from the veteran and his spouse in describing hearing difficulties, reveal limitations participating in ordinary social and recreational events. The record does not indicate, however, substantial limitations upon employability. There is also no corresponding report of previous or current hospitalization with any connection to treatment for hearing loss, or other unusual case circumstances for consideration. Conclusion For the above reasons, the claim for an extraschedular evaluation for a bilateral hearing loss must be denied. The case does not warrant referral to VA's Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine the propriety of a rating on an extraschedular basis, as set forth under 38 C.F.R. § 3.321(b)(1). Since the preponderance of the evidence is against the veteran's claims, the benefit-of-the-doubt doctrine is not applicable. See 38 C.F.R. § 4.3. ORDER Entitlement to an extraschedular evaluation for bilateral hearing loss from November 21, 2001, is denied. REMAND As noted above, 38 C.F.R. § 3.321(b)(1) provides for an extraschedular rating when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment. In support of the assertion that his PTSD causes such a marked interference the claimant submitted an October 2007 letter from Emmett Early, Ph.D., who opined, in pertinent part, that the veteran was not employable in any sort of regular capacity. Significantly, however, Dr. Early assigned a global assessment of functioning score of 56. That score represents a finding that the appellant's post traumatic stress disorder is productive of only moderate symptoms. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Given this conflict, and in light of the fact that the veteran has not been examined for VA purposes since August 2006, further development is in order. Accordingly, this case is REMANDED for the following action: 1. The RO is to obtain the names and addresses of all medical care providers who have treated the veteran for post traumatic stress disorder since August 2006, to include Dr. Early. After securing any necessary release, request any records not previously secured and associate them with the claims file. 2. The veteran should then be scheduled for a VA social and industrial survey to ascertain whether he is unemployable due to his post traumatic stress disorder alone. It is imperative that the claims file and a copy of this REMAND be made available to the examiner for review in connection with the examination. All indicated special studies and tests should be accomplished. The report of the examination must address whether it is at least as likely as not that the veteran is unable to obtain or maintain a substantially gainful occupation as a consequence of his service connected post traumatic stress disorder. Further, the examiner must attempt to separate the effects of nonservice-connected disabilities from pathology caused by his service connected post traumatic stress disorder. If the veteran's pathology cannot be separated without engaging in speculation, that fact must be noted. A complete rationale must be offered for any opinion provided. 3. After undertaking the above development, the RO must make arrangements with an appropriate VA medical facility for the veteran to be afforded a psychiatric examination. The claims folder is to be provided to the physician for review in conjunction with the examination. All indicated tests and studies deemed appropriate by the examiner, including psychological testing, must be accomplished and all clinical findings should be reported in detail. In accordance with the latest AMIE work sheet for rating PTSD, the examiner is to provide a detailed review of the veteran's history, current complaints, and the nature and extent of his service- connected psychiatric disorder. In addition to any other information required by the AMIE work sheet, the examiner must assign a Global Assessment of Functioning (GAF) score, and explain what the assigned score means. A complete rationale for any opinion offered must be provided. 4. The veteran is hereby notified that it is his responsibility to report for the examination 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 the 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. 5. After the development requested above has been completed to the extent possible, the issue of entitlement to an extraschedular rating for post traumatic stress disorder should be readjudicated. If the benefit sought on appeal remains denied, the veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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