Citation Nr: 1644373 Decision Date: 11/23/16 Archive Date: 12/02/16 DOCKET NO. 16-19 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a right ear hearing loss. 2. Entitlement to an initial rating in excess of 10 percent for tinnitus. 3. Entitlement to an initial compensable rating for left ear hearing loss. 4. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) rated as 70 percent disabling. 5. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 1966 to February 1968 which service included combat service in the Republic of Vietnam with the award of the Combat Infantry Badge and the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Initially the Board finds that it does not have jurisdiction over the claim for restoration of a 60 percent rating for coronary artery disease status post coronary artery bypass graft because the Veteran has not as yet perfected his appeal as to the September 2015 rating decision that reduced this rating by filing a timely Substantive Appeal after the issuance of the August 2016 statement of the case nor was the issue certified to the Board. See 38 C.F.R. §§ 20.200, 20.302(c) (2015) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The claims for an increased rating for PTSD and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have hearing loss in the right ear for VA compensation purposes. 2. The Veteran's service-connected tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating authorized under 38 C.F.R. § 4.87, Diagnostic Code 6260. 3. Audiometric test results correspond to a numeric designation of no greater than I in the nonservice-connected right ear and I in the service-connected left ear at all times during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 2. There is no legal basis for the assignment of an evaluation in excess of 10 percent for tinnitus. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2015). 3. The Veteran does not meet the criteria for a compensable rating for left ear hearing loss at all times during the pendency of the appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.383, 4.85, 4.86, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims he has hearing loss in his right ear due to, among other things, the small arms fire he was exposed to while in combat in the Republic of Vietnam. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran also claims that his adverse symptomatology meets the criteria for higher evaluations for his tinnitus and left ear hearing loss. Id. In adjudicating the claims the Board has reviewed all of the evidence in the VBMS and virtual VA claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all 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 the claims and what the evidence in the Veteran's claim's folders show, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). a. The Service Connection Claim Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the law also provides that, in the case of any veteran who engaged in combat with the enemy, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, condition, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The United States Court of Appeals for Veterans Claims (Court) in Hensley also held that "audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley, 5 Vet. App. at 157. 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). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought, specifically right ear hearing loss. In the absence of proof of a present disability, there is no valid claim (of service connection). See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the in-service and post-service record is negative for a diagnosis of right ear hearing loss as defined by VA. In fact, audiological testing performed by VA in May 2015 showed that he did not have hearing loss in the right ear as defined by VA and this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, while the Veteran is competent to report on the symptoms he observed, he is not competent to measure auditory thresholds in his ears. See Davidson. Therefore, the Board finds that the Veteran does not have a diagnosis of hearing loss in the right ear for VA compensation purposes, and for this reason alone the claim must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 C.F.R. § 3.102; Gilbert, supra. b. The Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. Moreover, when an unlisted condition is encountered, it will be permissible to rate on the basis of a closely related disease or injury in which not only the function affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2015). i. Tinnitus The June 2015 rating decision granted service connection for tinnitus and assigned it the maximum schedular rating available for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260. Moreover, in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. Therefore, as there is no legal basis upon which to award a higher schedular evaluation for tinnitus or separate evaluations for tinnitus in each ear, the Veteran's appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings are not warranted. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). ii. Left Ear Hearing Loss The Veteran's left ear hearing loss is rated as non compensable under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Under the law and regulations that have been in effect since before Veteran filed this claim, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 38 C.F.R. § 4.85(c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate, as for example because of language difficulties, or inconsistent speech discrimination scores. When impaired hearing is service connected in only one ear, then the nonservice-connected ear will be assigned a numeric designation of I unless the service-connected hearing loss is at least 10 percent disabling and there is hearing impairment in the non service-connected ear under 38 C.F.R. § 3.385. 38 U.S.C.A. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). With the above criteria in mind, at the May 2015 VA examination the Veteran had puretone thresholds 15, 10, 20, and 35 decibels in the nonservice-connected right ear and puretone thresholds of 25, 40, 70, and 80 decibels in the service-connected left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 22.5 decibels in the nonservice-connected right ear and 53.75 decibels in the service-connected left ear. Speech recognition ability was 96 percent in the in the nonservice-connected right ear and 96 percent in the service-connected left ear. The claimant also reported that the overall functional impairment caused by his hearing loss was that he had difficulty understanding speech. Applying the above test results to 38 C.F.R. § 4.85, Table VI, shows that the Veteran, in his service-connected left ear, had a numeric designation of I at his VA examination. These tests results do not show that the Veteran met the criteria for at least a 10 percent rating for the hearing loss in his service-connected left ear. 38 U.S.C.A. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). A numeric designation of at least X would need to be shown. Therefore, the nonservice-connected right ear must be assigned a numeric designation of I at all times when evaluating if the Veteran meets the criteria for a compensable rating for his service-connected left ear hearing loss. Id. Applying the above credible test results to 38 C.F.R. § 4.85, Table VII, with the Veteran having a numeric designation of I for the non service-connected right ear and a numeric designation of I for the service-connected left ear does not show that he met the criteria for a compensable rating for the service-connected left ear hearing loss under 38 C.F.R. § 4.85. Therefore, the Board finds that the claim for a compensable rating for his service-connected left ear hearing loss is denied under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. This is true at all times during the pendency of the appeal and therefore consideration of a staged rating is not warranted. Fenderson. As to 38 C.F.R. § 4.86(a), at the above examination the Veteran did not have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) in his service-connected left ear. Likewise, as to 38 C.F.R. § 4.86(b), while at the above examination the Veteran had a threshold of 30 decibels or less at 1,000 Hz, he did not also have a threshold of 70 decibels or more at 2,000 Hz. Consequently, neither 38 C.F.R. § 4.86(a) or 38 C.F.R. § 4.86(b) is for application. This is true at all times during the pendency of the appeal and therefore consideration of a staged rating is not warranted. Fenderson. iii. Extraschedular Ratings for Tinnitus and/or Left Ear Hearing Loss In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). However, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptoms of the Veteran's tinnitus and left ear hearing loss with the established criteria shows that the rating criteria reasonably describe his disability levels and symptomatology. In short, there is nothing in the record to indicate that the service-connected disabilities causes impairment with employment over and above that contemplated in the assigned schedular ratings. The Board, therefore, has determined that referral of these issues for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted at any time during the pendency of the appeal. In reaching this conclusion, the Board has not overlooked the recent decision by the United States Court of Appeals for the Federal Circuit in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) in which it held that the plain language of 38 C.F.R. 3.321(b)(1) provides for referral for extraschedular consideration based on the collective impact of multiple service-connected disabilities. However, the Board finds no basis to conclude that there is a "compounding" or collective impact between the Veteran's service-connected disabilities and indeed, neither the Veteran nor his representative has asserted otherwise. As such, the Board finds that even taking into account Johnson these rating issues need not be remanded for referral to the Director, Compensation Service, for extraschedular consideration. In reaching all of the above conclusions, the Board has not overlooked the various lay statements found in the record from the Veteran and others, but considers the objective, calibrated measurements of the disability by the VA examiner to be more probative than subjective complaints. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). ORDER Service connection for a right ear hearing loss is denied. An initial evaluation in excess of 10 percent for tinnitus is denied. An initial compensable rating for left ear hearing loss is denied. REMAND As to the claim for an increased rating for PTSD, in July 2015 the Veteran reported that he was experiencing significant adverse psychiatric symptomatology due to his PTSD that was not complained off nor diagnosed at his last VA examination in May 2015. Therefore, the Board finds that a remand for a new VA examination is required because the Veteran has reported that his disability has worsened since his last VA examination. See 38 U.S.C.A. § 5103A (d) (West 2014); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). As to the claim for a TDIU, the Board finds that a remand is required because adjudication of this claim is inextricably intertwined with the above PTSD claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). While the appeal is in remand status, the Veteran's updated VA treatment records as well as any outstanding private treatment records should also be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b). Accordingly, these issues are REMANDED to the AOJ for the following actions: 1. Associate with the claims file the Veteran's post-July 2016 treatment records from the Loma Linda VA Medical Center. 2. After obtaining all need authorizations from the Veteran, associate with the claims file any outstanding private treatment records including his post-April 2015 treatment records from Kaiser Permanente. 3. Notify the Veteran that he may submit statements from himself and from other individuals who have first-hand knowledge of his current problems due to his PTSD to include all problems it causes with employment. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an examination to determine the severity of his PTSD. The claims folder should be made available to and reviewed by the examiner. The examiner is to identify all adverse psychiatric pathology found to be present due to his PTSD. In providing the requested opinion, the examiner should specifically address the adverse psychiatric symptomatology the Veteran reported he was experiencing in his July 2015 statement to the AOJ. 5. Then adjudicate the claims for an increased rating for PTSD and for a TDIU. If any benefit sought on appeal remains denied, furnish the Veteran a supplemental statement of the case (SSOC) that gives him notice of all the evidence added to the record since the April 2016 statement of the case. The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board. The appellant 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 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 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs