Citation Nr: 1113792 Decision Date: 04/07/11 Archive Date: 04/15/11 DOCKET NO. 11-01 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bronchial asthma, and if so whether service connection should be granted. 2. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a compensable rating for bilateral hearing loss disability. 4. Entitlement to a total disability rating based on individual unemployability due to the service-connected PTSD (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The issues of entitlement to service connection for bronchial asthma, on the merits, and entitlement to a TDIU are addressed in the Remand that follows the Order section of the Decision below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). FINDINGS OF FACT 1. Entitlement to service connection for bronchial asthma was denied by unappealed rating decisions in May 1946 and August 1957; reopening of the claim was denied by unappealed rating decisions in June 2005 and September 2006. 2. Evidence received since the September 2006 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of evidence already of record, and is sufficient to establish a reasonable possibility of substantiating the claim. 3. The social and occupational impairment from the Veteran's PTSD more nearly approximates reduced reliability and productivity than deficiencies in most areas. 4. The Veteran's hearing loss disability is manifested by a Level II hearing loss in the right ear and Level IV hearing loss in the left ear. CONCLUSIONS OF LAW 1. New and material has been presented to reopen the claim of entitlement to service connection for bronchial asthma. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 2. The criteria for a rating higher than 50 percent for PTSD are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). 3. The criteria for a compensable rating for bilateral hearing loss disability 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 Veteran seeks entitlement to service connection for bronchial asthma; he also seeks higher evaluations for the service-connected PTSD and hearing loss disability. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects the Originating Agency provided the Veteran with all required notice by letters mailed in October and December 2009. The Veteran had ample opportunity to respond prior to issuance of the rating decision on appeal. The record also reflects that service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has also been afforded appropriate VA medical examination in regard to the service-connected disabilities whose disability ratings are on appeal. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. New and Material Evidence Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record in a case before VA with respect to benefits under the laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA will give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. However, the benefit-of-the-doubt rule does not apply when the issue is new and material evidence. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Analysis The Veteran submitted a claim for service connection for allergic asthma in April 1946, which was denied by a rating decision in May 1946. The Veteran was notified of the decision in a letter in May 1946 but he did not appeal. The Veteran thereafter submitted requests for service connection for bronchial asthma that were denied on the merits by rating decisions in November 1946 and November 1957. The Veteran again did not appeal those decisions. The Veteran subsequently submitted requests to reopen the claim for bronchial asthma that were denied by rating decisions in June 2005 and September 2006; the Veteran did not appeal those decisions. The instant request to reopen the claim was received in October 2009. The evidence of record as of September 2006 consisted of the following: STRs, showing no treatment for respiratory problems in service and normal chest-X ray at discharge; treatment note by Dr. JLF dated in March 1946 showing diagnosis of allergic-type asthma; letter from Dr. HO dated in August 1946 stating the Veteran had no history of bronchial asthma prior to service and the current bronchial asthma was probably developed during service; letter from Dr. JK dated in August 1946 stating there was presumptive evidence the Veteran's bronchial asthma may be service-connected; treatment note from Dr. AUB dated in August 1957 showing treatment for bronchial asthma, reported by the Veteran to be chronic since service; letter from Dr. FJC dated in November 2004 stating the Veteran reported onset of symptoms at age 19 during service with symptoms persisting thereafter; and correspondence from the Veteran asserting his belief that his asthma was attributable to exposure to damp, rainy weather in service as well as breathing in dirt and dust. Evidence received since September 2006 relevant to bronchial asthma includes the following: the report of a VA psychiatric examination in August 2009 indicating the Veteran reported he was assigned during service to grinding axes and saws, which caused intense exposure to particles in a confined area without the benefit of a mask; a letter from Dr. JEG dated in September 2009 characterizing the Veteran's asthma as a "war related disability;" the record of a VA audiological evaluation in December 2009 in which he reported extensive exposure during service to grinding equipment; a letter from the Veteran in February 2010 asserting he was treated for bronchial asthma on a hospital ship during service on the way home from Okinawa and had chronic symptoms ever since; a letter from Dr. JEG dated in July 2010 asserting the Veteran attributed his lung problems to exposure to dust during service; and the report of a VA psychiatric examination in July 2010 indicating the Veteran described significant exposure to dust during service. The Board finds at this time that the September 2009 letter from Dr. JEG characterizing the Veteran's respiratory disability as a "war related disability" relates to a previously unestablished fact necessary to prove entitlement to service connection; i.e., medical evidence of nexus. The Board notes in this regard that the letter is inadequate by itself to prove entitlement to service connection, since it is devoid of any clinical rationale, but it is adequate to reopen the claim. The Veteran's appeal is accordingly granted to that extent. Evaluation of Service-Connected Disabilities General Legal Principles Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010). 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2010) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected PTSD and hearing loss disability on appeal. The Board has found nothing in the historical record that would lead to the conclusion the current evidence of record is inadequate for rating purposes. Moreover, the Board is of the opinion this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. A. PTSD When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. In relevant part, the rating criteria are as follows. A 50 percent rating is warranted for 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 effective work and social relationships. A 70 percent rating is warranted for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: 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. The Veteran's instant request for an increased rating for PTSD was received in July 2009. A July 2009 letter from Dr. AT, a private psychologist, assigned a current Global Assessment of Functioning (GAF) score of 35-39 and stated the Veteran was not currently employable. The Veteran had a VA PTSD examination in August 2009, performed by a VA psychologist who reviewed the claims files. The Veteran reported having had a long marriage of 54 years and that he currently got along well with his adult children, but otherwise disliked being in groups. He reported feeling angry and depressed frequently, and stated he became easily upset. He reported feeling miserable at times, and that when depressed he would be tired, unmotivated and bored. The Veteran stated he frequently thought about buddies who were killed in the war, and that although he tried to forget about the war it kept resurfacing. He endorsed being "on edge" when exposed to noise and commotion. He reported sleep disturbance with nightmares and night sweats and stated he could get a couple of hours sleep per night. The Veteran did not want to be around others and was driving less and less. He believed his memory and concentration were way off, and his wife was frustrated at his memory problems, although some of these cognitive problems could be at least partially due to a stroke in 2007. The Veteran reported he had retired six years previously and was no longer employable due to functional impairments from his stroke and his depressed mood. The Veteran's wife would tell him what to do and would take care of most other things for him, but he was capable of performing activities of daily living (ADLs). During examination the Veteran was oriented times three and cooperative, although his mood was irritable and he presented with a degree of feistiness. His affect was congruent, his speech was animated and his thoughts relevant and organized. He denied current suicidal ideation (SI) or homicidal ideation (HI) and there was no evidence of cognitive disorganization or psychosis. The examiner diagnosed chronic moderate PTSD and assigned a current GAF score of 55, noting that the Veteran's highest GAF during the past year was 58 and his lifetime low was 50. The examiner stated specifically in regard to employability that the Veteran attributed his unemployability to sleep problems, depression, irritability and problems with memory and concentration; he was also of an age (86) when it would not be expected that he would be employed. The Veteran was competent to handle his own financial matters. A letter from Dr. AT dated in July 2010 assigned a current GAF score of 31. The Veteran had a VA PTSD examination in July 2010, performed by a VA psychologist other than the psychologist who had performed the previous examination in August 2009. The examiner noted the current GAF score of 31 assigned by Dr. AT, noted above. The Veteran reported he had been retired for quite some time. He reported he had been married more than 50 years and had occasional fights with his wife due to his temper. He stated he had a good relationship with his children but he denied having any friends because he became upset too easily and had to stay in his own world. He no longer pursued activities like fishing because of physical health problems and primarily engaged in sedentary activities. He denied SI, HI or assaultive behavior but endorsed difficulty sleeping. In terms of current symptoms, the Veteran reported feeling consistently depressed, with decreased interest in things he previously found pleasurable. He reported decreased appetite and frequently feeling fatigued. He endorsed having intrusive thoughts and nightmares several times per week, as well as occasional flashbacks. He endorsed avoiding loud noises and crowds. He stated he felt very isolated and distant from people, with emotional numbing. He reported difficulty falling and staying sleep, and only being able to achieve three hours of sleep per night. He stated he was fairly irritable and found himself yelling a lot. He reported difficulty concentrating and reported increased concern about danger, with hypervigilance. He endorsed some panic-like symptoms and reported feeling easily jumpy and startled. He stated his PTSD symptoms had made him "more rowdy" and that he had no friends as a result of his PTSD. During examination the Veteran presented as appropriately groomed; he was cooperative and readily engaged in conversation. Some psychomotor slowing was observed. His mood was depressed and his affect was constricted; he was occasionally tearful when describing his experiences. No impairments in perception were noted. His thought processes were coherent, organized and intact. Though content was appropriate. The Veteran denied SI or HI. Concentration appeared intact but there were some deficits in memory, specifically recent recall. His ability to abstract was somewhat impaired as he was fairly concrete. Judgment, impulse control and insight were intact. The examiner diagnosed PTSD and major depressive disorder (MDD) and assigned a current GAF score of 45. The examiner stated it was difficult to discern how much of the impairment in the Veteran's occupational and social functioning was due to psychiatric symptoms versus his medical problems. However, it was clear the Veteran's PTSD symptoms had led to a decrease in quality of life due to his poor temper, anxiety level, and difficulties engaging in social interaction. On review of the evidence above, the Board finds the disability picture presented by the Veteran's PTSD more closely approximates the criteria for the current 50 percent rating. The higher 70 percent evaluation is warranted for "occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood." Of these areas, the Veteran's family relations, thinking and judgment are not shown to be impaired, while impairment of work and school are problematic given that the Veteran has been retired for many years. The remaining area of demonstrated impairment is mood, but this does not connote impairment in "most areas" as required for the higher rating. In terms of symptoms, the Veteran reports anger management issues including irritability, but without the periods of violence as cited in the criteria for the higher 70 percent rating. He reports difficulty sleeping, but this is not a criterion for rating. He reports social isolation, which shows "difficulty in establishing effective work and social relationships" as cited in the criteria for the currently-assigned 50 percent rating, but his good relations with his family disprove complete "inability to establish and maintain effective relationships" as cited in the criteria for the higher rating. The Board also notes that the evidence in the form of reports of VA medical examinations actually disproves the presence of any of the other symptoms associated with the higher rating. There is no indication of SI, obsessional rituals, speech abnormalities, near-continuous panic, or difficulty in adapting to stressful circumstances. In sum, his symptoms are squarely within the criteria for the current 50 percent rating. The Board has also considered the GAF scores assigned during the period under review. The GAF score records the clinician's judgment of the individual's overall level of functioning, with 100 representing a high level of functioning and no psychiatric symptoms. See Quick Reference to the Diagnostic Criteria from DSM-IV, Washington, D.C., American Psychiatric Association, 1995. While the GAF is not the sole basis for assigning a disability rating, it provides a clinical indicator of the patient's functional ability. There is no question the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). In this case there is a wide disparity between the GAF scores assigned by Dr. AT and the VA examiners. Dr. AT assigned a GAF score of 35-39 in July 2009, while a VA psychologist assigned a much higher GAF score of 55 just one month later. Similarly, Dr. AT assigned a GAF score of 31 in July 2010 while a different VA psychologist assigned a GAF score of 45 the same month. The Board recognizes that Dr. AT is the Veteran's attending psychologist while the VA examiners based their GAF scores on a single interview plus review of the file. However, the Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, Dr. AT reported GAF scores without any indication of how such scores were assigned without comment on the Veteran's complaints or observed symptoms; the Board notes in that regard that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In contrast, the GAF scores assigned by the VA examiners are reflective of the symptoms noted during examination and thus representative of the level of impairment recorded in clinical notes. Accordingly, the Board finds the GAF scores reported by the examiners to be more probative than the scores reported by Dr. AT. GAF scores between 41 and 50 indicate serious symptoms or any serious impairment in social, occupational or school functioning, while GAF scores between 51 and 60 indicate moderate symptoms or moderate difficulty functioning. Quick Reference, supra, pg. 46-47. The decline in GAF scores from 55 in August 2009 to 45 in July 2010 arguably shows a decline in functioning during the intervening year, but even though a GAF of 45 shows "serious" symptoms and impairment the actual symptoms and impairment recorded during examination more closely approximated the 50 percent rating. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even giving full competence and credibility to the Veteran's statements, nothing in his statements shows a disability picture that more nearly approximates the occupational and social impairment with deficiencies in most areas required for the higher 70 percent evaluation. Consideration has been given to assigning a staged rating; however, at no distinct period under review does the disability warrant a higher schedular rating. See Hart, 21 Vet. App. 505. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the rating criteria reasonably describe the Veteran's disability picture and referral for extra-schedular evaluation under 38 C.F.R. § 3.321(a) is not warranted. Based on the evidence and analysis above the Board finds the criteria for rating higher than 50 percent for the service-connected PTSD are not met. Accordingly, the claim must be denied. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. B. Bilateral Hearing Loss Disability Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows. (a) When the puretone thresholds 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. (b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The Veteran's instant claim for an increased rating for BHL was received in November 2009. The Veteran had a VA-contracted audiological evaluation in December 2009 during which he reported difficulty with normal conversation speech and stated people had to talk loud to him. His puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT N/A 20 25 50 55 37.5 LEFT N/A 25 50 75 80 57.5 Speech recognition was 88 percent in the right ear and 76 percent in the left ear. Applying the values above to Table VI results in a Level II Roman numeral designation for the right ear and a Level IV designation for the left ear. Application of a Level II designation to a Level IV designation in Table VII results in a noncompensable rating. The readings reported in this evaluation do meet the requirements for evaluation as an exceptional pattern of impairment. The Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The examiner noted that the Veteran was not employed but that the Veteran would have difficulty hearing in a work setting. He added that the Veteran had difficulty understanding normal conversational speech and required people to talk loudly to him. As noted above, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer, 7 Vet. App. 379, 384. However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority. Martinak v. Nicholson, 21 Vet. App. 447. Whereas the Veteran's hearing loss has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation, the lay evidence does not support a claim for rating higher than currently assigned. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). The record reflects that the manifestations of the disability, hearing impairment in each ear, are those specifically contemplated by the schedular criteria. In sum, there is no indication in the record that the average industrial impairment from the disability would be to a compensable degree. The Board acknowledges that the record establishes that the Veteran's hearing impairment significantly impacts him, but disability ratings are based upon average industrial impairment rather than the individual claimant's industrial impairment. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun, 22 Vet. App. 111, 115. In sum, based on the evidence and analysis above the Board finds the criteria for compensable rating for the service-connected BHL are not met. Accordingly, the claim must be denied. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. ORDER New and material evidence having been received, the claim of entitlement to service connection for bronchial asthma is reopened. Entitlement to an evaluation in excess of 50 percent for PTSD is denied. Entitlement to a compensable evaluation for bilateral hearing loss disability is denied. REMAND The Board notes at the outset that the Veteran has not been afforded a VA pulmonary disease examination. The Veteran's account of chronic asthma since discharge from service and the medical nexus evidence present a prima facie case of entitlement to service connection, so the Veteran should be afforded a VA medical examination at this point. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Also, a claim for a TDIU may be presented informally or may be raised by the facts. "Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the 'identify the benefit sought' requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU." Roberson v. Principi, 251 F. 3d 1378, 1384 (Fed. Cir. 2001). According to VA General Counsel, the question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim. If the veteran asserts entitlement to a TDIU based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a). See VAOGCPREC 6-96. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2007). The Veteran's attending private psychologist submitted a letter in July 2010 stating that the Veteran's psychiatric disability renders him unemployable; the Veteran has therefore presented a claim for a TDIU that is part of the claim on appeal. The Veteran does not currently meet the schedular criteria for assignment of a TDIU under 38 C.F.R. § 4.16(a), but it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Services, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should afford the Veteran an examination by an examiner with appropriate expertise to determine the etiology of the Veteran's bronchial asthma. The claims folders must be made available to and reviewed by the examiner, and any indicated studies should be performed. Based on review of the files and examination of the Veteran, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that chronic asthma is etiologically related to active service. The examiner should consider the Veteran's account of his symptoms during and after service to be credible for purposes of the opinion. If the examiner concludes during interview that the Veteran is an unreliable historian, he or she should provide the reasons for such a conclusion. The rationale for each opinion expressed must be provided. 2. The RO should inform the Veteran and his representative of the elements required to establish entitlement to a TDIU based on the service-connected PTSD or upon the combination of his service-connected disabilities, and of the respective duties of VA and the claimant in obtaining such evidence. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should adjudicate the issue of entitlement to service connection for bronchial asthma, and should also adjudicate the Veteran's claim for a TDIU based on his service-connected PTSD. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford him the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs