Citation Nr: 1800231	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  14-14 710	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a compensable rating for bilateral sensorineural hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Vuong, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1967 to May 1969.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama denying a claim for higher ratings received on February 10, 2011.  

Service connection was previously granted in a February 2009 rating decision.  In that decision, the RO assigned an initial rating of 30 percent, effective January 31, 2007 for PTSD.  The RO also assigned a non-compensable rating for bilateral sensorineural hearing loss, effective January 31, 2007.

The issue of an increased rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

During the entire appeals period, the Veteran's hearing loss manifested in no worse than Level III hearing impairment in his left ear and Level I hearing impairment in his right ear.


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral sensorineural hearing loss are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2017). 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Hearing Loss

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85, Diagnostic Code 6100. 

Under certain exceptional patterns of hearing impairment, auditory acuity levels may be calculated using either TABLE VI, as described above, or TABLE VIA, which derives a Roman numeral designation based solely on the puretone audiometry test.  38 C.F.R. § 4.86.  The TABLE that produces the higher Roman numeral will be used.  Id.  These auditory acuity levels are entered into TABLE VII of the rating schedule to determine the percentage disability rating.  38 C.F.R. § 4.85.

Pursuant to 38 C.F.R. § 4.85(a), 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 audiometry test.

VA treatment records include at least one audiological assessment.  See December 2010 VA treatment records located in Virtual VA.  In that assessment, puretone thresholds indicated severe, bilateral high frequency sensorineural hearing loss with good word discrimination scores of 100 percent in the right ear and 88 percent in the left ear.  Treatment records also indicate no change in hearing loss subsequent to the December 2010 evaluation and issuance of hearing aids.  See March 2012 VA treatment records located in Virtual VA.

The Veteran was afforded an examination in September 2011.  The examiner was an audiologist.  The examiner reviewed medical records and conducted an examination.  The results of measured puretone thresholds were:
 



HERTZ


CNC

1000
2000
3000
4000
Avg
%
RIGHT
25
35
65
70
48.75
92
LEFT
30
65
75
75
61.25
84

Speech recognition performance was good with score of 92 percent in the right ear and 80 percent in the left ear.  The examiner noted no significant effect on occupational or daily activities. 

Applying these results to TABLE VI yields a numeric designation of Level I impairment in the right ear and Level III impairment in the left ear.  Entering these numeric designations into TABLE VII yields a noncompensable or 0 percent rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.  An exceptional pattern of hearing impairment is not shown. 38 C.F.R. § 4.86.

On the basis of the August 2011 VA audiological examination, the Veteran's bilateral hearing loss is not shown to have more nearly approximated the criteria for an initial compensable evaluation.  The Board finds the examination and report of the August 2011 examiner to be probative because she has the appropriate training, expertise and knowledge to evaluate the claimed disability.  The examiner also reviewed the medical records.  Moreover, there are no competent opinions to the contrary.

The Board acknowledges that in advancing this appeal, the Veteran, believes that his disability is more severe than the assigned disability rating reflects.  In a statement submitted in support of his appeal, the Veteran asserted that his hearing is so poor that he cannot hear most of the time, even with use of hearing aids.  The Board does not discount that the Veteran's contention with respect to his perceived hearing acuity; however, schedular disability ratings for hearing loss are based on the results of the audiological studies of record.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) ("Assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.").  Moreover, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech as these are the effects that VA's audiometric tests are designed to measure.  Doucette v. Shulkin, 28 Vet. App. 377 (2017).  The Veteran's hearing loss does not produce any other functional effects not contemplated by the rating schedule.

Ultimately, there is no competent evidence that supports a compensable rating in this case.  Further, the level of disability has been consistent throughout the appeal and a staged rating is not warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  There are no additional expressly or reasonably raised issues.
ORDER

Entitlement to a compensable rating for bilateral sensorineural hearing loss is denied.


REMAND

The Veteran seeks a higher rating for his service-connected PTSD.

The Veteran was afforded a VA examination in August 2011.  The examiner noted that the Veteran's symptoms include chronic sleep impairment and lack of enjoyment from going to crowded places.  The examiner indicated there were no other symptoms.  The examiner gave a GAF score of 60.  Ultimately, the examiner endorsed occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational task, only during periods of significant stress; or symptoms controlled by medication.

In VA treatment records, the Veteran was noted as having depression and limited activities related to removal of polyps in a June 2013 VA treatment records.  See June 2013 VA treatment records located in Virtual VA.  Additionally, the Veteran reported issues with sleep with occasional nightmares; avoidance of big crowds; and startling at loud noises.  See February 2011 VA treatment records located in Virtual VA. 

Subsequently, the Veteran has reported symptoms indicating a more severe level of occupational and social impairment.  In particular, the Veteran contends that he suffers from short term and long term memory loss, homicidal thoughts, irritability, and panic attacks at least twice a week.  See March 2014 Substantive Appeal.  The Board notes that this could be construed as a worsening of the Veteran's previous symptoms.  Moreover, there is no competent medical opinion that considers these reported symptoms in their assessment of the Veteran's occupational and social impairment.  As such, a new medical examination and opinion are necessary. 

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he identify any private doctor who has treated his PTSD.  Upon receipt of any necessary authorization, take appropriate action to contact the identified providers and request complete records.  Also, obtain complete VA treatment records since January 2015.

2.  After any additional records are associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his PTSD.  The entire claims file should be reviewed by the examiner.  All tests deemed appropriate by the examiner should be performed. 

The examiner should report all pertinent findings and comment on the severity of any social and occupational impairment related to his PTSD.  In doing so, the examiner is asked to consider the Veteran's report of short term and long term memory loss, homicidal thoughts, irritability and experiencing panic attacks at least twice a week.

A complete rationale for the requested opinions should be provided.  If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so.

3.  Thereafter, readjudicate the appeal.  If the claim remains denied, issue a supplemental statement of the case and give the Veteran and his representative the opportunity to respond.  Then, return the case to the Board.

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).

This claim 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. §§ 5109B, 7112 (2012).




______________________________________________
H.M WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs