Citation Nr: 1302109	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  10-45 602	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to a compensable initial evaluation for bilateral hearing loss.

2.  Entitlement to an initial rating in excess of 30 percent from November 4, 2009 and in excess of 70 percent from November 1, 2011 for Posttraumatic Stress Disorder (PTSD).

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	Massachusetts Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

Jennifer R. White, Counsel


INTRODUCTION

The Veteran served on active duty from October 1952 to October 1954.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.

In November 2012, the Veteran testified at a Board hearing by videoconference technology before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.

The Board notes that the Veteran has perfected an appeal for an earlier effective date for a 70 percent rating for PTSD.  He clarified during hearing testimony that he wishes such rating back to his date of claim for service connection as he does not feel that his condition has worsened since that time.  However, the Board notes that the Veteran appealed the 30 percent rating granted at the time of the grant for service connection.  Thus, the entirety of the period of appeal encompasses the time period in which he is arguing for a 70 percent disability rating for PTSD.  Thus, the issue of an earlier effective date for a 70 percent rating for PTSD from November 4, 2009 (his date of claim for service connection) is encompassed by his claim for an increase in his initial disability rating for PTSD.  Thus, the issues are correctly stated on the title page of this decision as not including a claim for an earlier effective date for a 70 percent rating for PTSD.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of an increased initial rating for PTSD as well as entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The competent evidence of record reveals bilateral hearing loss of Level I in both ears.


CONCLUSION OF LAW

The requirements for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a November 2012 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Regulations and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  

The Board has reviewed all the evidence in the veteran's claims file, which includes: his contentions, private medical records, and VA examination reports.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The June 2010 rating decision established service connection for bilateral hearing loss, evaluated as 0 percent disabling, effective November 4, 2009, the Veteran's date of claim.

Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Codes 6100 (2006).  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenman v. Principi, 3 Vet. App. 345 (1992).

An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  In that situation, 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.  38 C.F.R. § 4.86.  Further, when the average 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.  Each ear will be evaluated separately.  Id.

Turning to the evidence of record, in a VA audiological evaluation dated January 2010, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
35
20
45
60
LEFT
40
30
20
30
55

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear.  The average puretone threshold for levels 1000 Hz to 4000 Hz is 40 for the right ear and 33.75 for the left ear.

An additional VA audiological examination dated November 2011 revealed the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
35
20
45
60
LEFT
40
30
25
45
60

Speech recognition scores were reported as 96 percent on the right side and 94 percent on the left side.  The average puretone threshold for levels 1000 Hz to 4000 Hz is 40 bilaterally.

VA treatment records dated June 2010 indicate that the Veteran was provided hearing aids.  


Applying the findings from the January 2010 and November 2011 VA examinations to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear.  Where hearing loss is at Level I in one ear and Level I in the other, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.

Thus, the preponderance of the evidence of record fails to show that the Veteran's hearing loss warrants a compensable evaluation.

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2012).

An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, the schedular evaluation is not inadequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected bilateral hearing loss but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder.  As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order.

In reaching the conclusion above the Board has considered the applicability of 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.  See 38 U.S.C.A. § 5107(b) (West 2002);  Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001);  Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).   


ORDER

Entitlement to a compensable initial evaluation for bilateral hearing loss is denied.


REMAND

Development is required regarding the TDIU claim. The Board notes that total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340  (2012).  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341 (2012). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2012). 

In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war.  See 38 C.F.R. § 4.16 (2012). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 

Concerning the Veteran's claim for TDIU, the Board finds that an additional medical examination is required.  The Board notes in this regard that an addendum dated January 2012 to a VA psychiatric examination report indicated that the Veteran was unemployable due to his cardiac and pulmonary problems as well as his advanced age.  The Board notes that TDIU is to be determined without regard to the Veteran's age.  Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a).  The Board additionally notes that the addendum author indicates that the Veteran is long retired from sales and marketing.  However, this fact is not dispositive to determining the Veteran's claim.  Additionally, the Board notes that the examiner is a psychologist and it's unclear whether he has the education and expertise to determine if physical maladies render a person unable to work.  The question is whether the Veteran is currently unemployable due to his PTSD.  As the current evidence is insufficient to determine if the Veteran is unemployable solely due to service-connected disabilities; he should be afforded an additional VA examination. 

Regarding the Veteran's claim for an initial increased rating for PTSD, the Board notes that the examination ordered by this remand in order to ascertain the Veteran's employability will contemplate whether the Veteran is entitled to the 100 percent rating for PTSD (under Diagnostic Code 9411) for total occupational and social impairment.  Thus, the Board concludes that this claim is inextricably intertwined with the claim for TDIU being remanded herein.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Given the foregoing, the Veteran's increased initial rating claim for PTSD also must be remanded. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  Expedited handling is requested.)

1.  Schedule a VA psychiatric examination for the Veteran to determine the current severity of the Veteran's PTSD. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination.  All symptomatology should be described in detail.  The examiner should also provide a Global Assessment of Functioning score for the Veteran's PTSD.

The examiner should also provide an opinion concerning the impact of the Veteran's psychiatric disability on his ability to work, to include whether it renders him unemployable. The rationale for all opinions expressed should also be provided.

2.  After completion of the above, the AMC/RO should review the record and readjudicate the Veteran's claims in light of any additional evidence added to the record assembled for appellate review.  If any benefit sought remains denied, the Veteran and his representative should be issued an appropriate supplemental statement of the case and afforded the opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran 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).

These claims must be afforded expeditious treatment.  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. 2012).




______________________________________________
J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs