Citation Nr: 1803526	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  15-30 895A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial rating higher than 50 percent for bilateral hearing loss.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).

4.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound.


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran had recognized guerilla service from January 1945 to November 1945.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  The RO granted service connection for bilateral hearing loss and assigned a 50 percent rating, effective July 31, 2014.  It also denied service connection for PTSD, denied a TDIU, and denied special monthly compensation based on the need for aid and attendance or being housebound.

The matter was previously remanded by the Board in March 2017 for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  A current PTSD diagnosis has not been established.

2.  Bilateral hearing loss was manifested by hearing levels of VIII in both ears throughout the appeal period.

3.  The Veteran does not meet the schedular criteria for a TDIU, and his hearing loss does not preclude him from engaging in substantially gainful employment.

4.  The Veteran's service-connected hearing loss has not been shown to render him bedridden, confined to his immediate premises, or unable to care for his daily needs without requiring the regular aid and attendance of another person.


CONCLUSIONS OF LAW

1.  The criteria for service connection for PTSD have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017).

2.  The criteria for an initial rating higher than 50 percent for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).

3.  The criteria for a TDIU have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.16 (2017).

4.  The criteria for an award of SMC based on housebound status or the need for regular aid and attendance of another person are not met.  38 U.S.C. §§ 1114, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection

There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are in ways similar, but also nonetheless separate, from those for establishing entitlement to service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010).  Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor.  38 C.F.R. §§ 3.304(f) and 4.125.

As noted in the February 2015 rating decision on appeal, the Veteran's combat service has been acknowledged and satisfied element (2) of service connection.  However, the overall weight of the evidence is against a finding that the Veteran currently has PTSD.

The Veteran underwent a VA examination in February 2015.  The examiner noted that the Veteran had no spontaneous meaningful speech, and that his granddaughter, who had been his caretaker for many years, supplied the relevant history.  She noted that he was considered to be kind, generous, and fair by all those who knew him.  He had no previous formal mental health consultation.  He had no reported problematic behavior over the years except recently due to problems with hearing.  There were some reports that he felt agitated when loud unexpected noises were heard.  She also reported him to be preoccupied with looking for something and would be calmed down when he was shown a small pointed barrel that looked like a bullet.  He was observed to exhibit nonsense verbalization of words with occasional agitation, but generally kept to himself.  He used simple gestures to agree or disagree on things.  During the examination, he gave no verbal output despite attempts to communicate using his native language and written words.  As a result, the examiner stated that the rest of the mental status examination could not be adequately assessed.  Based on the available information, the examiner stated that the Veteran's symptoms did not meet the criteria for PTSD or any other mental health disorder.

An April 2015 note from a private physician stated that the Veteran had been his regular patient since 1995 for PTSD.  This physician stated that the Veteran "became unconscious, thinking about war era and became notorious."

"The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.

Here, the Board finds that the VA examiner's conclusion is the most probative in assessing whether the Veteran has PTSD.  The Board acknowledges the lack of information available due to the Veteran's lack of responsiveness during the examination.  Nevertheless, the examiner's assessment was based on a history of behavior and symptoms provided by the Veteran's granddaughter.  In contrast, the April 2015 diagnosis from the private clinician is not supported by any probative explanation or rationale.  Indeed, the claim was previously remanded to allow the Veteran to submit or identify records from this private clinician to support his claim.  However, there was no response from the Veteran.  The Board acknowledges the language difficulties present in this case, including in the April 2015 diagnosis.  Ultimately, though, the overall weight of the competent medical evidence in this case weighs against a finding that the Veteran has a current diagnosis of PTSD.  Therefore, service connection is not warranted.

II.  Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2017).

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is the primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Evaluations of defective hearing range from zero to 100 percent.  This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. 

Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the puretone threshold average from the speech audiometry test and the results of the speech discrimination test.  The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  See id.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the puretone decibel loss.

Table VIa provides numeric designations of impaired hearing based on puretone thresholds alone, and is used in cases where an examiner certifies that the use of speech discrimination testing is not appropriate because of language difficulties, inconsistent scores, etc.  38 C.F.R. § 4.85(c).

The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI or VIa) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI or VIa).

The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The Veteran submitted private audiometric testing from July 2014.  However, these records do not contain findings corresponding to requirements listed in the rating criteria.  They do not include thresholds at 3000 Hertz, and do not include speech discrimination scores or a finding that such scores would not be appropriate.

The Veteran was afforded a VA examination in February 2015.  Puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
80
85
80
100
86
LEFT
75
80
100
105+
90

Word recognition scores were reported as not being appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that would make combined use of puretone average and word recognition scores inappropriate.  Utilizing Table VIa, puretone thresholds averages of 86 decibels in the right ear and 90 decibels in the left ear both correspond to hearing level VIII.  Under Table VII, this equates to the current 50 percent rating.

The Veteran was afforded an additional VA examination in September 2017.  However, the examiner stated that no hearing thresholds could be obtained.  She stated that the Veteran was instructed on how to do the test but fell asleep.  When he was awoken, he still did not respond and immediately fell asleep.  The examiner then used bone testing to try and train the Veteran on the task by playing a sound at a level where the Veteran should feel the vibration and then raise his hand for him when the sound was played.  This was attempted multiple times, but the Veteran never responded on his own.  The examiner believed the Veteran could hear some of the sounds since he did have responses during the earlier test in 2015.  However, since no responses were obtained on this test, the examiner could not determine if the Veteran was not responding due to cognitive issues or if he was not hearing the sound.

In an October 2017 statement, the Veteran indicated that he was not given enough time to rest as part of the examination, and the Board has considered his statement.  However, the examiner provided a thorough description of her attempts to explain the procedure and elicit a response from the Veteran to complete the hearing test, which were unsuccessful.  The Board notes that the Veteran was also unresponsive during his February 2015 VA examination for PTSD.  For these reasons, the Board finds that VA has complied with its duty to provide the Veteran with a VA examination for his condition, and further development is not appropriate.

As the findings from the February 2015 VA examination are consistent with a 50 percent rating, a higher evaluation is not warranted in this case.

III.  TDIU

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017).

Here, the Veteran is service-connected for bilateral hearing loss rated at 50 percent.  Therefore, he does not meet the schedular criteria for consideration of TDIU.  However, even when the rating percentage requirements are not met, entitlement to TDIU benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

The central inquiry is determining whether a TDIU is warranted is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted.  See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In his July 2014 VA Form 21-8940, the Veteran indicated that he had worked as a farmer.  He last worked full-time in 1992 and became too disabled to work in 1995.  He reported having a sixth-grade level education and no other special training.

As part of the February 2015 VA examination, the examiner stated that the Veteran could hardly hear anything as a result of his hearing loss, and that relatives had to write down what they wanted him to understand.

The Board finds that a TDIU is not warranted in this case.  It recognizes the impairment associated with the Veteran's hearing loss.  However, the evidence does not show how hearing loss, alone, would preclude the Veteran from performing the acts of employment associated with being a farmer.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (it is the rating official who is responsible for interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present).

Notably, the assigned 50 percent rating for bilateral hearing loss contemplates the functional effects of decreased hearing and difficulty understanding speech in an everyday environment.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).  This rating also represents the average impairment in earning capacity in civil occupations resulting from his condition, and is considered adequate to compensate for considerable loss of working time.  38 C.F.R. § 4.1.  Ultimately, the Veteran does not meet the schedular criteria for a TDIU, and the evidence does not reflect some factor that takes his case "outside the norm" of any other veteran rated at the same level.  Van Hoose, supra.  Therefore, a TDIU is not appropriate in this case.

IV.  Special Monthly Compensation

Special monthly compensation (SMC) is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person.  38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b)(3) (2017).  A veteran will be considered in need of regular aid and attendance if he or she is: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a).  38 C.F.R. § 3.351(c) (2017).

Initially, the Board notes that the Veteran is only service-connected for bilateral hearing loss, which does not result in any visual impairment, and he is not in a nursing home.

Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment.  38 C.F.R. § 3.352(a) (2017).

It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present.  The particular personal function which a veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  Turco v. Brown, 9 Vet. App. 222 (1996).

During the February 2015 VA examination, the Veteran was accompanied by his granddaughter, who indicated that he needed assistance with self-care and eating.  However, hearing loss alone would not preclude the Veteran from dressing himself, feeding himself, attending the wants of nature or maintaining hygiene.  He does not require any special prosthetics or orthopedic appliances.  There is no indication that his hearing loss requires him to be protected from the hazards or dangers incident to his environment.  Indeed, during the February 2015 examination, his granddaughter stated that he could hear loud, unexpected noises.

Bedridden status will also be a proper basis for the determination of the need for regular aid and attendance.  Bedridden means that condition which, through its essential character, actually requires that the veteran remain in bed.  The fact that a veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.  38 C.F.R. § 3.352(a) (2017).

A veteran will be determined to be permanently housebound when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime.  38 U.S.C. § 1502(c) (2012); 38 C.F.R. § 3.351(d)(2) (2017).

In addition, a veteran may receive housebound-rate special monthly compensation if he or she has a service-connected disability rated as permanent and total (but not including total rating based upon unemployability under 38 C.F.R. § 4.17) and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate.  38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017).

Hearing loss is the only service-connected disability, and has not been shown to limit the Veteran's mobility or limit him to his bed, house, or immediate premises.  As noted earlier in the discussion regarding TDIU, the assigned 50 percent rating for hearing loss contemplates a substantial amount of impairment from decreased hearing and difficulty understanding speech.  However, it has not been shown to meet any of the above criteria for an award of special monthly compensation.




ORDER

Service connection for PTSD is denied.

An initial rating higher than 50 percent for bilateral hearing loss is denied.

A TDIU is denied.

Special monthly compensation based on a need for aid and attendance or being housebound is denied.



______________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs