Citation Nr: 1125902	
Decision Date: 07/11/11    Archive Date: 07/19/11

DOCKET NO.  08-37 004	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel
INTRODUCTION

The Veteran served on active duty from February 1945 to July 1946.  

The issue of entitlement to a compensable rating for bilateral hearing loss comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the RO in Waco, Texas.  The claim for service connection for PTSD comes before the Board on appeal from an August 2009 rating decision of the same RO.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2011 hearing at the RO.  A transcript has been associated with the file.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  At no time during the current appeal period has the Veteran been shown to have a diagnosis of PTSD.

2.  The Veteran is not a combat veteran.

3.  The Veteran's stressors have not been corroborated by evidence other than his own statements.  

4.  The Veteran's bilateral hearing loss disability has been productive of impairment equivalent to no worse than Level IV in his right ear and no worse than Level II in his left ear.  

5.  The schedular rating for the Veteran's bilateral hearing loss is adequate.


CONCLUSIONS OF LAW

1.  PTSD was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010).

2.  The criteria for a compensable evaluation for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. Veterans Claims Assistance Act (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for service connection and an increased rating.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010).  The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  Compliance with the first Quartuccio element requires notice of these five elements.  See id.  Prior to initial adjudication of the Veteran's service connection for PTSD claim, a March 2009 letter fully satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  

To satisfy the first Quartuccio element for an increased-compensation claim, 38 U.S.C.A. § 5103(a) compliant notice must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Shinseki, 24 Vet.App. 94, 107 (2010).  Prior to initial adjudication of the Veteran's increased rating claim, a letter dated in April 2008 fully satisfied the duty to notify provisions for all notice elements.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  If VA provides a claimant with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).  

Here, the Veteran was afforded a February 2011 medical examination to determine whether he had PTSD as a result of inservice stressors.  This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file.  The examiner obtained an accurate history and listened to the Veteran's assertions.  The examiner laid a factual foundation and reasoned basis for the conclusions that were reached.  Therefore, the Board finds that the examination is adequate.  See Nieves-Rodriguez, supra.  

With regard to the compensable rating issue, the RO provided the Veteran appropriate VA examinations in May 2008 and January 2009.  The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time as an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95.  The 2008 and 2009 VA examination reports are thorough and address the criteria for increased ratings.  The examinations in this case are adequate upon which to base a decision.

Accordingly, the Board concludes the VA examinations are adequate upon which to base a decision.  Compensation and Pension (C&P) hearing examination worksheets have been revised to include a discussion of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans, Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2010).  In this case, the VA examination reports note merely general complaints, such as difficulty understanding speech, especially when in a noisy background.  The Board notes that the Veteran reported being retired; no impact on occupational functioning could have been recorded.  However, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court acknowledged the worksheet revisions, but also noted that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Here, the Veteran has not alleged any prejudice caused by a deficiency in the examinations.  The Veteran appeared and testified before the undersigned VLJ regarding the effect his bilateral hearing loss had on his daily activities, and there are no allegations of prejudice in any of the documents he has submitted.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

II. Service Connection

The Veteran contends that he has PTSD as a result of service.  For the reasons that follow, the Board concludes that service connection for this disability is not warranted.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f) (2010).  

The Veteran alleges that he had PTSD as a result of combat experiences during service, including his ship moving through minefields and his witnessing of plane crashes and crew rescues aboard the U.S.S. Savo Island.  

The Veteran testified before the undersigned endorsing many symptoms of PTSD.  He reported and his spouse testified that he had symptoms of irritability, intrusive thoughts, and difficulty sleeping.  

The Board observes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology).  

The Board acknowledges that the Veteran is competent to give evidence about what he experiences.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence).  Thus, while the Veteran is competent to report symptoms, whether these symptoms rise to the level of a clinical disability is beyond his ability to report.

The Veteran was seen for a February 2011 VA examination.  The Veteran provided his service history and his stressor events.  The examiner questioned the Veteran regarding his symptoms and recorded the Veteran's responses.  The examiner concluded that the Veteran did not have PTSD.  No diagnosis was offered.  

The Veteran and his representative objected to the February 2011 VA examination during the hearing before the undersigned.  The Veteran reported that the examiner was a foreigner and that he had trouble understanding the examiner.  As will be discussed below, the Veteran is service-connected for bilateral hearing loss.  The examination report, however, indicates that the Veteran gave appropriate responses to questions and was able to interact appropriately during the interview.  There is no indication that the Veteran was having difficulty understanding the examiner.  The Board finds that the examination report is adequate for ratings purposes and is competent to report that the Veteran does not have a current diagnosis of PTSD.  The February 2011 VA examiner's conclusion is not refuted by any other medical evidence received during the current appeal.  

Thus, the Board finds that the Veteran has not been shown to have PTSD at any time during the appeal period.  The Veteran is competent to report symptoms, but his report has not been supported by a later medical diagnosis.  See Jandreau.  The February 2011 VA examination is the only medical opinion of record regarding whether the Veteran has PTSD.  The report found that he did not.  

The Board notes that the existence of a disorder is the cornerstone of a claim for VA compensation based on disability.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed).  See also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); and McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved).  

The Board has also considered the remaining evidence regarding the claim.  The Veteran's statements indicate that he had combat experience during World War II aboard the U.S.S. Savo Island.  

If the claimed stressor is related to combat, service department evidence that the appellant engaged in combat or that the appellant was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor.  "Credible supporting evidence" of a non-combat stressor may be obtained from service records or other sources.  Moreau v. Brown, 9 Vet. App. 389 (1996).  However, the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor."  Dizoglio v. Brown, 9 Vet. App. 163 (1996).

A determination as to whether the appellant is a veteran of combat is particularly significant in a PTSD claim because he is entitled to have his lay statements as to his alleged stressors accepted, without corroboration, if he engaged in combat with the enemy.  See Gaines v. West, 11 Vet. App. 353 (1998).  The Court has held that:

"[w]here it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service.'"

Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); see also 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  Before this provision applies, the Board must make a specific finding that the appellant was engaged in combat with the enemy.  See Zarycki.

VA's Office of General Counsel has defined the phrase "engaged in combat with the enemy" to mean that the appellant must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality.  VAOPGCPREC 12-99.  The fact that the appellant served in a "combat area" or "combat zone" does not mean that he himself engaged in combat with the enemy.  Id.  Moreover, a general statement in the appellant's service personnel records that he participated in a particular operation or campaign would not, in itself, establish that he engaged in combat with the enemy because the terms "operation" and "campaign" encompass both combat and non-combat activities.  Id.  Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized military citations or other supportive evidence.  No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each relevant item of evidence.  Id.  The claimant's assertions that he engaged in combat with the enemy are not ignored, but are evaluated along with the other evidence of record.  Id.  However, the claimant's assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this fact.

One of the Veteran's claimed stressors involved attacks by Japanese aircraft on the U.S.S. Savo Island.  The Veteran's service personnel records indicate that he did not receive an award for to combat service.  The Veteran's representative obtained an internet article detailing the history of the Savo Island.  This history indicates that the ship participated in combat in the Pacific and was awarded a Presidential Unit Citation for action beginning in 1944 and ending on April 29, 1945.  The history then reports that the Savo Island returned to the continental U.S. and was in the Aleutian Islands at the time of the Japanese surrender in August 1945.  The Veteran's representative relies on this history to establish that the Veteran participated in combat and that his stressors should be accepted without corroboration.  

The Veteran's service personnel records show that he arrived onboard the Savo Island on May 30, 1945.  The Veteran was not present for the ship's participation in combat in 1945, which ended a month before his arrival.  The ship was in the Aleutian Islands at the end of hostilities.  Thus, the Board finds that the history provided does not support the Veteran's report of combat, but rather tends to show that he did not have combat experience.  Accordingly, the Board finds that the Veteran is not a combat Veteran.  His stressors must be reported by corroborating evidence.  See Gaines.  

The Veteran's remaining stressors involve plane crashes and crew rescues and passing through Japanese minefields.  The internet article shows that the Savo Island did participate in the occupation of the Japanese Home Islands of Honshu and Hokkaido.  The Board notes that there is no notation of minefields or plane crashes.  

The Board notes that the VA Adjudication Manual requires that a claimant provide a stressor that can be documented the location where the incident took place the approximate date (within a two-month period) of the incident, and the unit of assignment at the time the stressful event occurred. See M21-1MR IV.ii.1.D.14.d (2008). This information is to be passed onto the record keepers, such as the JSRRC and Modern Military Branch, so that successful searches may occur. See, e.g., M21-1MR IV.ii.1.D.15.c.  In this case, the Veteran has failed to provide an approximate date or two month period regarding any of the additional stressors.  Thus, the RO could not conduct a search for corroborating evidence.  Accordingly, the Board finds that the instant claim also fails because the Veteran is not a combat veteran and because there is no corroborating evidence of his claimed stressors.

In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim.  The medical evidence of record shows no evidence of a diagnosis of PTSD at any time during the current appeal.  Degmetich, 104 F.3d at 1333.  See also McClain, supra.  

The Veteran's report of symptoms is not sufficient to constitute competent report of a PTSD disability.  See Jandreau.  In the absence of competent evidence of the claimed disability, service connection may not be granted.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  Similarly, the Veteran was not aboard the Savo Island at the time the ship was in combat.  The Veteran is not a combat veteran.  His stressors have not otherwise been confirmed.  He has not provided sufficient information to conduct a search.  Accordingly, the Board finds that this claim fails also due to a lack of a corroborated in-service stressor.  See 38 C.F.R. § 3.304.  In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

III. Increased Rating

The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss.  For the reasons that follow, the Board concludes that an increased rating is not warranted.
Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.1 (2010).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2010).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2010).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2010). 

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  38 C.F.R. § 4.85 (2009).  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.

On VA audiologic evaluation in May 2008, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
60
65
55
LEFT
20
20
35
60
65

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear.  The puretone average threshold for the 1,000, 2,000, 3,000, and 4,000 ranges were 51.25 in the right and 45 in the left.  

On the authorized audiological evaluation in January 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
60
70
50
LEFT
25
30
40
65
70

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 94 percent in the left ear.  The puretone average threshold for the 1,000, 2,000, 3,000, and 4,000 ranges were 52.5 in the right and 51.25 in the left.  

During his hearing before the undersigned, the Veteran's representative argued repeatedly that the Board should consider a June 2006 private audiology report from J. Caudill in determining the correct disability rating.  The Board notes that the June 2006 report was considered in determining the Veteran's initial rating in the grant of service connection in 2006.  The instant claim arises from a new filing in 2008 indicating that his hearing had worsened since the initial rating.  The representative did not explain how the June 2006 evaluation is an accurate assessment when the Veteran's filing indicates a worsening since that time.  

Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level.  Using the May 2008 audiometric scores, the right ear had a puretone average of 51.25 dB and a speech recognition score of 80; therefore the right ear received a designation of IV.  The left ear had a puretone average of 45 dB and a speech recognition score of 84; therefore the left ear received a designation of II.  Using the January 2009 audiometric scores, the right ear had a puretone average of 52.5 dB and a speech recognition score of 88; therefore the right ear received a designation of II.  The left ear had a puretone average of 51.25 dB and a speech recognition score of 94; therefore the left ear received a designation of I.  The May 2008 scores clearly represent a higher level of disability.  Using those results, the point where IV and II intersect on Table VII then reveals the disability level for the Veteran's hearing loss, which in this case does not reach a compensable level.

The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience.  See 64 Fed. Reg. 25203 (May 11, 1999).  38 C.F.R. § 4.86(a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable.  See 64 Fed. Reg. 25209 (May 11, 1999).  38 C.F.R. § 4.86(b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment.  Id.  However, in this case, the audiometric results from the VA examination do not meet these criteria, and the Veteran's disability cannot be evaluated under the alternative rating scheme.

Where entitlement to compensation has already 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).  Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged."  Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Board has considered the possibility of staged ratings.  The Board, however, concludes that the criteria for a compensable rating have not been met at any time during the appeal period.  Accordingly, staged ratings are inapplicable.  See id.  

The Board has also considered whether a referral for extraschedular rating is warranted.  See Thun v. Peake, 22 Vet.App. 111, 115 (2008).  Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required.  See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral).  

The schedular evaluation for the Veteran's bilateral hearing loss disability is not inadequate.  The Veteran reports that he is retired.  His bilateral hearing loss has not been shown to have an impact on employment, even if he were employed.  He has not reported any hospitalizations due to hearing loss.  The Veteran has also reported symptoms of difficulty in hearing acuity.  Such symptoms are explicitly a part of the schedular rating.  The Veteran has not identified symptoms that have not been addressed by the schedular evaluation.  It does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria.  The available schedular evaluations for that service-connected disability are adequate.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  Further inquiry into extraschedular consideration is moot.  See Thun, supra.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).







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ORDER

Entitlement to service connection for PTSD is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs