Citation Nr: 1318903 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-29 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1974 to July 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss, rated 0 percent, effective February 14, 2008 (the date of receipt of claim), and denied service connection for PTSD. The claim of service connection for a psychiatric disability was developed and adjudicated as limited to the diagnosis of PTSD. Because the record shows psychiatric diagnoses other than PTSD (anxiety and depression), and in light of the intervening United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), it has been recharacterized as stated on the preceding page. Regarding the matter of the rating for hearing loss, the Veteran's Notice of Disagreement (NOD) with the rating decision on appeal stated he was appealing the denial of "benefits" for hearing loss, and requested statement of the case (SOC) in the matter. In a letter at the time his representative indicated that he disagreed with the denial of service connection for hearing loss. The RO sought clarification, and a December 2008 report of contact the representative indicated that the Veteran was seeking an increased rating. The RO issued a SOC in the matter of the rating for the hearing loss. In his substantive appeal on VA Form 9, the Veteran again indicated he was disagreeing with the denial of service connection for hearing loss. Giving broad interpretation to the communications from the Veteran and his representative (as the RO apparently has done) the Board finds that the matter of the rating for hearing loss is indeed on appeal. The issue of service connection for a psychiatric disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT At no time during the appeal period is the Veteran's hearing acuity shown to have been worse than level I in either ear. CONCLUSION OF LAW A compensable rating is not warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3, 4.85, 4.86, Diagnostic Code (Code) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection for bilateral hearing loss and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A June 2009 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; and a June 2010 supplemental SOC (SSOC) readjudicated the matter after the appellant responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ( "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The RO arranged for a VA examination in August 2008. The Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). In that regard the Board notes specifically that the examiner did not explicitly comment regarding the functional impairment associated with the hearing loss disability. However, the Veteran has reported that the functional impairment consists of difficulty hearing. The record suggests that his self-report of functional impairment has been accepted on its face (to be as alleged). Therefore, the Board finds such omission nonprejudicial. Notably, it is not alleged that the examination was inadequate. Given that the August 2008 examination report is now dated, the Board has also considered whether or not a more contemporaneous examination is necessary. As the Veteran has not alleged that the August 2008 examination was inadequate, or that his hearing loss has worsened in the interim, the Board finds that another examination is not necessary. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Disability ratings are determined by application of a schedule of ratings, based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 ; 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. When there is an approximate balance of positive and negative evidence regarding the degree of disability, the benefit of the doubt is to be given to the claimant. 38 C.F.R. § 4.3. The appropriate evaluation for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86. The Rating Schedule provides a table (Table VI) to determine for rating purposes a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Where the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be based solely on puretone threshold testing. See 38 C.F.R. § 4.85, Table VIA. One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz ) are 55 decibels or greater. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. See 38 C.F.R. § 4.86(a)(b). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). As this claim for increase is an appeal from the initial rating assigned with the grant of service connection, the possibility of staged ratings must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). As will be discussed below, the current 0 percent rating assigned for the Veteran's bilateral hearing loss encompasses the greatest level of hearing impairment shown at any time during the appeal period; accordingly, "staged ratings" are not warranted. On VA audiological evaluation in August 2008, scheduled in connection with the Veteran's claim seeking service connection, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 15 30 75 95 LEFT 10 15 25 65 Speech audiometry (Maryland CNC word list) revealed speech recognition ability of 92 percent in the right ear and 100 percent in the left ear. Mild to severe sensorineural hearing loss (SNHL) in the right ear and mild to moderate SNHL in the left ear was diagnosed. The examiner noted that the Veteran reported problems hearing. The Veteran's records of treatment in the interim do not show any treatment for his hearing loss; he has not identified any records that are outstanding. Applying the findings on August 2008 audiometry to the schedular criteria, under Table VI, the right ear puretone threshold average of 54 decibels and speech discrimination of 92 percent constitutes Level I hearing in that ear. The left ear puretone threshold average of 29 decibels and speech discrimination of 100 percent constitute Level I hearing in that ear. The audiometry does not reflect an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4,86) in either ear. Under Table VII, the Level I hearing acuity found in the right ear combined with the Level I hearing found in the left ear warrants a 0 percent rating under Code 6100. Therefore, a compensable rating is not warranted. The Board notes that the examiner did not comment on the functional impairment that would be expected to result from the hearing loss. The examiner appears to have accepted at face value the Veteran's report that he has problems hearing; the Board can readily concede that the functional impairment is as the Veteran has reported. Significantly, the impairment has not progressed to the severity that would require treatment (as none is shown). Notably, the Veteran has not since alleged worsening. However, as a layperson, he is not competent to establish the level of his hearing disability by his own opinion. As was noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to findings of controlled audiometry, which here results in a 0 percent rating. See Lendenmann, 3 Vet. App. at 349. The Board has considered whether referral of this claim for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to, the bilateral hearing loss not encompassed by the scheduler criteria. The scheduler criteria clearly encompass the symptoms and impairment shown. Therefore, they are not inadequate, and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). There is also no evidence that suggests (or allegation) that the bilateral hearing loss has renders him unemployable. Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied. ORDER A compensable rating for bilateral hearing loss is denied. REMAND The record shows that the Veteran was stationed in Berlin during the "Cold War" era. His alleged stressor events in service essentially include hearing about and reading of East Germans suffering dire consequences attempting to cross the Berlin Wall to the part of Berlin under Western control and feeling a constant threat of hostilities. During the pendency of the Veteran's claim, VA amended the regulations governing processing of claims seeking service connection for PTSD by liberalizing, in certain circumstances, the evidentiary requirement for establishing the occurrence of a stressor event in service. See revised 38 C.F.R. § 3.304(f)(3). Under this revision, if a Veteran's claimed stressor relates to fear of hostile military or terrorist activity, lay testimony may establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary, if (1) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the symptoms are related to the claimed stressor; and (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 75 Fed. Reg. 39843 (July 13, 2010) [codified at 38 C.F.R. § 3.304(f)(3) (2011)]. The regulation defines "fear of hostile military or terrorist activity" to mean that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actually or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery; rocket, or mortar fire; grenade; small arms fire, including sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 U.S.C.A. § 3 .304(f)(3). These amended provisions apply to the Veteran's claim. Furthermore, in Clemons, 23 Vet. App. 1, the Court held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of service connection for a psychiatric disability claim (and that such matter(s) is/are before the Board). VA treatment records show Axis I diagnoses that include anxiety and depression. As the RO has not developed or adjudicated the matter of service connection for psychiatric disability other than PTSD, this must be done on remand for compliance with Clemons. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for association with the claims file updated (to the present) records of any VA treatment the Veteran has received for psychiatric disability. 2. The RO should arrange for any further development indicated, and then make a formal determination as to whether the Veteran served in an area of potential hostile activity. 3. The RO should thereafter arrange for the Veteran to be examined by an appropriate VA psychologist or psychiatrist to determine the nature and likely etiology of his psychiatric disability. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. The examination must be in accordance with DSM-IV. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: a. Please identify (by medical diagnosis) each psychiatric disability entity found, specifically, does the Veteran meet the criteria for a diagnosis of PTSD, including under the revised 38 C.F.R. § 3.304(f)(3). If PTSD is not diagnosed, please explain why the criteria for such diagnosis are not met. b. As to each psychiatric disability entity other than PTSD diagnosed, please indicate whether such is at least as likely as not (a 50% or greater probability) related to the Veteran's active service? The examiner must explain the rationale for all opinions. 4. The RO should then review the file and re-adjudicate the claim, to encompass all psychiatric diagnoses (in accordance with Clemons), as well as the consideration of the revised 38 C.F.R. § 3.304(f)(3). If it remains denied, the RO should issue an appropriate SSOC, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs