Citation Nr: 1327676	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  11-01 602	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for service-connected post traumatic stress disorder (PTSD) for the period from September 9, 2009 to January 4, 2012. 

2.  Entitlement to a disability rating in excess of 50 percent for service-connected PTSD for the period after January 4, 2012. 

3.  Entitlement to an initial compensable rating for service-connected bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States 



ATTORNEY FOR THE BOARD

Eli White, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to September 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In the December 2009 rating decision, the Columbia, South Carolina RO granted the Veteran's claim of entitlement to service connection for PTSD and assigned an initial disability rating of 30 percent, effective September 9, 2009.  The RO additionally granted the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus, assigning a noncompensable rating for the bilateral hearing loss and a 10 percent rating for tinnitus, also effective September 9, 2009.  The Veteran disagreed with the initial 30 percent disability rating assigned for the service-connected PTSD, as well as the noncompensable rating assigned for the service-connected bilateral hearing loss.  This appeal ensued. 

After the Veteran submitted his substantive appeal to the Board, but before the case was transferred to the Board on appeal, the RO in Atlanta, Georgia increased the Veteran's service-connected PTSD disability rating to 50 percent, effective January 4, 2012.  This increase was established via a rating decision issued in February 2012.  As the award is not a complete grant of benefits, the issue remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993). 

A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there is evidence of record regarding unemployability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the issue of TDIU has not been raised by the record; therefore, the issue is not on appeal.  

The issues of entitlement to an initial rating in excess of 30 percent for service-connected PTSD for the period from September 9, 2009 to January 4, 2012, and entitlement to  disability rating in excess of 50 percent for service-connected PTSD for the period after January 4, 2012 are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


FINDING OF FACT

Audiometric examinations correspond to no greater than a level II hearing loss for the right ear and no greater than a level I hearing loss for the left ear; there is no evidence of an exceptional disability picture sufficient to render the Rating Schedule inadequate. 


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.85, Diagnostic Code 6100, 4.86 (2012).  

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is warranted. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).  The VCAA applies to the instant claim. 
 
The notice required by the VCAA can be divided into three elements.  Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). 

In the instant case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2009.  The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. 

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. 
§ 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 
 
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's service and VA treatment records and associated them with his claims file.  In addition, VA afforded the Veteran adequate examinations and obtained adequate expert opinions in October 2009 and January 2012.  The examiners considered the relevant history of the Veteran's condition, provided detailed descriptions of the condition, and provided sufficient information so the Board's determination is informed.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure the examination is adequate).

In his December 2009 Notice of Disagreement, the Veteran contends essentially that his VA hearing examination was inadequate because it was conducted in a quiet, soundproof room, which is not a realistic environment to measure one's hearing acuity.  However, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court of Appeals for Veterans Claims held that audiometric testing in a sound controlled room is an adequate testing ground for rating purposes, so long as the examiner adequately explores the functional impact of hearing loss on the Veteran.  The VA examination reports of record include information concerning how the Veteran's hearing loss affects his daily functioning.  Specifically, the Veteran reported that he has difficulty understanding conversations and often has to ask people to repeat themselves.  Thus, although the Veteran generally argued the testing may have misrepresented his hearing loss, such argument does not indicate that the examination was improperly administered.  
 
As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. §3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

II.  Merits of the Claim

By a December 2009 rating decision, the RO granted service connection for the Veteran's bilateral hearing loss disability and assigned a noncompensable disability rating, effective September 9, 2009.  On appeal, the Veteran asserts that a higher rating is warranted.  He asserts that his symptoms are more severe than represented by the evaluation assigned, and reports difficulty hearing in a routine environment containing background noises.  He states that he must frequently ask people to repeat what they have said.

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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.  38 C.F.R. §§ 3.102, 4.3, 4.7.  In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990).  If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed.  Id. 

II.A.  Schedular Consideration

Hearing loss is evaluated under Code 6100, which provides that evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second.  38 C.F.R. § 4.85.  

Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Under Table VI, a Roman numeral designation (I through XI) for hearing impairment is designated based on a combination of the percent of speech discrimination scores and the pure tone threshold average.  38 C.F.R. § 4.85(b) (2012).  Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned.  38 C.F.R. § 4.86 (2012).  

The pure tone threshold average is the sum of the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four.  38 C.F.R. § 4.85(d) (2012).  The 
Roman numeral designations determined using Table VI are combined using Table VII to find the percentage evaluation to be assigned for the hearing impairment.  38 C.F.R. § 4.85(e) (2012). 

The RO granted service connection for bilateral hearing loss in December 2009, assigning a noncompensable evaluation.  The Veteran's September 1968 entrance examination includes an audiometer evaluation showing that the Veteran did not have a hearing loss disability that comports with the VA's definition of disability resulting from hearing impairment.  38 C.F.R. § 3.385.  Notably, however, the medical examiner additionally documented on the entrance examination that the Veteran had "hearing loss" in his left ear.  

In a September 1970 separation Report of Medical Examination, the Veteran stated that "[s]ince [his] last physical, [his] condition has changed in that [his] hearing is not too good. . . "  The Veteran was not given an audiometer evaluation upon separation, however he was given a whisper test, on which he scored 15/15.  


In October 2009, the Veteran underwent a VA audiological examination.  The results of the audiological test are as follows, with pure tone thresholds recorded in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
35
60
80
LEFT
15
15
25
55
75

The average of the pure tones between 1000-4000 Hz was 50 decibels for the right ear and 43 decibels for the left ear.  Speech audiometry revealed speech recognition ability on the Maryland CNC test of 92 percent in the right ear and of 96 percent in the left ear.  Using Table VI at 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and I for the left ear.  Such a degree of hearing loss warrants only a noncompensable evaluation under Table VII.  Id.  The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here.  See 38 C.F.R. § 4.86.  

Another VA audiological examination was conducted in January 2012.  The results of the audiological test are as follows, with pure tone thresholds recorded in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
40
75
100
LEFT
15
20
40
60
90

The average of the pure tones between 1000-4000 Hz was 60 decibels for the right ear and 53 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.  Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and I for the left ear.  Such a degree of hearing loss warrants only a noncompensable evaluation under Table VII.  Id.  The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here.  See 38 C.F.R. § 4.86.  

A VA examiner must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak, 21 Vet. App. at 455.  The October 2009 and January 2012 examination reports considered the Veteran's reports of difficulty hearing and understanding speech and conversations.  The January 2012 examiner additionally noted that the Veteran reported he has difficulty locating sounds.  

The Board does not doubt that the Veteran genuinely believes that the severity of his disability merits a compensable evaluation, and there is no reason to doubt the credibility of the Veteran with respect to the fact that he has difficulty hearing conversations and often has to ask people to repeat themselves.  The objective findings on examination, however, do not allow for the assignment of a compensable rating in this case.  The Board is bound by the mechanical formula provided by regulation for the assignment of ratings for service-connected hearing loss, and is without authority to grant a higher rating in this case.  The extent of hearing loss generally must be quite severe before it warrants a higher, compensable evaluation.  Although unfortunate, the numeric designations in this case correlate to no higher than a 0 percent disability rating.  See 38 C.F.R. § 4.85, Tables VI-VII. 

The Board has also considered whether staged ratings are appropriate in this case; however, as the Veteran's hearing loss has remained relatively stable throughout the appeal period, such staged ratings are not warranted.

Accordingly, as the preponderance of the evidence is against the claim and there is no doubt to be resolved, an initial compensable evaluation for bilateral hearing loss is not warranted.  See Gilbert, 1 Vet. App. at 53-56.  

II.B.  Extraschedular Consideration

Also considered by the Board is whether referral is warranted for a rating outside of the rating schedule.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.21(b)(1) (2012).  The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  38 C.F.R. § 3.321(b). 

Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required.  Id.  If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id., at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

Here, the symptomatology and impairment caused by the Veteran's service-connected hearing loss are contemplated, both in kind and severity, by the schedular criteria.  The Veteran reports that he has difficulty hearing and understanding conversations, and that he frequently has to ask people to repeat themselves.  Such difficulty hearing is contemplated by the schedular criteria for hearing loss found at 38 C.F.R. § 4.85.  Therefore, the first prong of the Thun test is not satisfied.  For the sake of completeness, the evidence does not show that the Veteran has required hospitalization due to his hearing loss, or has otherwise experienced marked interference with his employment when working.  Therefore, referral for extraschedular consideration is not warranted.  

For the foregoing reasons, a compensable disability rating for the Veteran's service-connected bilateral hearing loss is not warranted. 


ORDER

A compensable evaluation for bilateral hearing loss is denied.


REMAND

By a December 2009 rating decision, the RO granted service connection for the Veteran's PTSD and assigned a 30 percent disability rating, effective September 9, 2009.  In February 2012, during the course of this appeal, the RO increased the evaluation to 50 percent, effective January 4, 2012.  On appeal, the Veteran asserts that a higher rating is warranted.  He asserts that his PTSD symptoms include significant sleep disturbance, nightmares, depression and agitation, near-continuous anxiety, panic attacks, and flashbacks.  

A remand is necessary to obtain outstanding VA treatment records.  In a September 2012 letter, the Veteran states that in 2012, he began seeing Dr. B., a VA psychologist at the Rome, Georgia VA Outreach Clinic, for help with his PTSD.  The VA treatment records associated with the claims file date from December 2006 to August 2010.  Because it appears that there are outstanding VA treatment records that may contain information pertinent to the Veteran's claim, those records are relevant and should be obtained.  38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

The Board additionally finds that a remand is required to provide necessary assistance to the Veteran in substantiating his PTSD claim.  In September 2012, the Veteran indicated that his disability may have worsened, stating that he realized he requires medical treatment for his PTSD and began such treatment in 2012.  In light of this indication of a possible worsening of the Veteran's disability, remand for an updated VA PTSD examination is required. 

Accordingly, the case is REMANDED for the following action: 

1.  Obtain and associate with the claims file all VA treatment records from August 2010 to the present.

2.  After completing the above development, ensure that the Veteran is scheduled for a VA examination for his PTSD.  The claims file, including a copy of this Remand, should be provided to the examiner, the examiner should review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed.   The examiner must describe in detail all current manifestations and symptoms of PTSD.  The examiner must specifically discuss the impact of PTSD on the Veteran's occupational functioning, to include his ability to obtain or retain substantially gainful employment.  

3.  After ensuring that the requested actions are completed, readjudicate the claim on appeal.  If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto.  The record should then be returned to the Board for appellate review.



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs