Citation Nr: 1801467	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-06 407	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

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

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected orthopedic disabilities.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

B. Kuczynski, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from October 1983 to July 1995.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  In that decision, the RO denied service connection for depression and bilateral tinnitus, but granted service connection bilateral hearing loss and assigned a noncompensable evaluation effective from October 30, 2009.  

The Veteran's original appeal also included the issues of entitlement to service connection for a left knee disorder, a left ankle disorder, a right ankle disorder, a cervical spine disorder, a lumbosacral spine disorder, a left shoulder disorder, bilateral tinea pedis with unguium, right axilla phlebitis, urethral polyp/chronic prostatitis with hematuria, a pulmonary disorder, sinusitis, rhinitis, and sleep apnea.

In August 2016, the Board denied the claims for service connection for sleep apnea and right axilla phlebitis and remanded the remainder of the issues for further development.  In a June 2017 rating decision, the RO granted service connection for all of those claims, except for service connection for tinnitus and a psychiatric disorder, and denied entitlement to an increased evaluation for bilateral hearing loss.  Thus, those claims are the only three issues remaining on appeal.

This appeal was processed using the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this case should take into consideration the existence of these records. 

The issues of entitlement to service connection for tinnitus and a psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

At worst, the Veteran has Level I hearing loss in both ears.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  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; 38 C.F.R. § 4.1.  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.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Fenderson, 12 Vet. App. at 126-27.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when 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. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran is currently assigned a noncompensable evaluation for his service-connected bilateral hearing loss, effective October 30, 2009, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100.

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal hearing acuity through level XI for profound deafness. 

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of level V and the poorer ear had a numeric designation of level VII, the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85 (includes Tables VI, VIA, and VII). 

Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the 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 evaluated to the next higher Roman numeral.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a compensable evaluation is not warranted for the Veteran's service-connected bilateral hearing loss.

The Veteran was provided VA examinations for his hearing loss in October 2011 and June 2017.  At the October 2011 examination, the VA examiner indicated that the thresholds obtained were "very inconsistent" with results from a previous audiogram and that the Veteran's "responses are also inconsistent with acoustic reflex thresholds."  As such, the results from that examination were considered not considered reliable, which was most likely due to a "non-organic component."  Because the examination was inadequate, the Board remanded the issue in August 2016 for an additional VA examination.  Nevertheless, the Board notes that the results of that examination still result in a noncompensable evaluation even if they were to be considered.

The June 2017 VA examiner stated that the pure tone results were considered reliable and valid for rating purposes for each ear.  The pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
55
60
55
LEFT
25
25
50
60
55

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear.  These audiometric findings equate to level I hearing in both ears.  See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.

The Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.  However, the audiological reports do not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear.  Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable.  See 38 C.F.R. § 4.86(a), (b).

The Board has also considered the Veteran's contentions regarding his diminished hearing, including his difficulties hearing in adverse listening conditions such as environments with a noisy background.  See June 2017 hearing loss and tinnitus DBQ at 4.  Nevertheless, the assigned noncompensable evaluation is consistent with the mechanical application of the rating schedule to the numeric designations assigned based on the audiometric evaluations performed, and this evaluation is based on the current VA law and regulations in effect for evaluating this disability.  Lendenmann, supra; Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017).

Therefore, the Board finds that the weight of the evidence is against a compensable evaluation for bilateral hearing loss.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49 (1990).


ORDER

An initial compensable evaluation for the Veteran's bilateral hearing loss is denied.


REMAND

The Veteran was afforded a VA examination in June 2017 in connection with his claim for service connection for tinnitus.  The examiner noted the Veteran's report of a rare ringing noise once in a while with the onset possibly one to two years earlier.  The Veteran indicated that the random noise lasts only a few seconds when heard.  The examiner opined that the infrequent sound might more accurately be described as a random ear noise rather than recurrent tinnitus as defined in the VA       Progressive Tinnitus Management Clinical Handbook for Audiologists.  However, the Board notes that the Veteran was previously documented as having tinnitus at the time of the October 2011 VA examination.  The requirement that a current disability be present 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, even in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007).  Therefore, the Board finds that an additional medical opinion is needed.

The Board also notes that the Veteran was afforded a VA examination in June 2017 in connection with his claim for service connection for a psychiatric disorder.  The examiner diagnosed him with an unspecified depressive disorder.  He noted that the Veteran did have a stressor that could lead to PTSD, but stated that he was not reporting or demonstrating symptoms of PTSD.  Rather, he had a mild mood disorder.  The examiner also concluded that, based on the Veteran's history and current presentation, there is no evidence that that disorder was connected to service.  However, no further rationale was provided.  Moreover, the examiner indicated that the Veteran's orthopedic conditions were relevant to the understanding or management of his mental health disorder, yet no explanation was provided.  The Veteran is currently service-connected for multiple orthopedic disabilities, and as such, it is unclear as to whether any current psychiatric disorder could be secondary to them.  Therefore, the Board finds that an additional medical opinion is needed.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for tinnitus or a psychiatric disorder that are not already of record.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also obtain any outstanding VA medical records.   

2.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any tinnitus that may have been present during the pendency of the appeal.

Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should indicate whether the Veteran has had tinnitus at any time since filing his claim in November 2009 or within close proximity thereto (even if the disorder later resolved).  If the Veteran is not found to have tinnitus, the examiner should address the prior diagnoses of record and indicate whether the disorder may have resolved or been misdiagnosed. See e.g. October 2011 VA examination report.

If the Veteran is found to have had tinnitus at any time during the appeal period (even if it later resolved), the examiner should state whether it is at least as likely as not that the disorder manifested during service or is otherwise causally or etiologically related his military service, to include any noise exposure therein. 

The examiner should also opine as to whether it is at least as likely as not that tinnitus is caused by or aggravated by the Veteran's service-connected bilateral hearing loss.

In rendering his or her opinion, the examiner should discuss medically known or theoretical causes of tinnitus and describe how tinnitus which results from noise exposure generally presents or develops in most cases, as distinguished from how tinnitus develops from other causes, in determining the likelihood that current tinnitus was caused by noise exposure in service as opposed to some other cause.  

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  After obtaining any outstanding medical records, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub-scales. 

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. 

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all current psychiatric disorders.  The examiner should consider the previous diagnoses, including anxiety disorder with mixed emotions, unspecified depressive disorder, and mood disorder.

For any diagnosis identified other than PTSD, the examiner should indicate whether it is at least as likely as not that that the disorder manifested in service or is otherwise related to the Veteran's military service.  

With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD.

The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied.  If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity.

In addition, the examiner should state whether it is at least as likely as not that any current psychiatric disorder is caused by or aggravated by his service-connected orthopedic disabilities.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review.

4.  The AOJ should review the examination reports to ensure that they are in compliance with this remand.  If a report is deficient in any manner, the AOJ should implement corrective procedures.  

5.  After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated.  

If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.  This SSOC should set forth the provisions of 38 C.F.R. § 3.310.

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).

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).



______________________________________________
J.W. ZISSIMOS 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs