Citation Nr: 1804575	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  16-38 674	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to service connection for Meniere's disease.

2. Entitlement to service connection for vertigo.

3. Entitlement to a rating in excess of 10 percent for bilateral hearing loss.

4. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Lavan, Associate Counsel


INTRODUCTION

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).

The Veteran served on active duty from March 1968 to November 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2011, November 2014, and May 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The issues of entitlement to service connection for Meniere's disease, service connection for vertigo, an increased rating for PTSD, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

For the entire period on appeal, the Veteran had, at worst, Level I hearing acuity in the right ear and Level XI hearing acuity in the left ear under 38 C.F.R. § 4.85.  


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, infra.  

The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied.  Except as discussed herein, the Veteran has not raised issues with the duties to notify or 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 (Fed. Cir. 2016) (applying Scott to the duty to assist).  Moreover, no new evidence was received after the May 2017  Statement of the Case. 

The pertinent regulations have been provided to the Veteran in the Statement of the Case and they will not be repeated here.



Increased Rating for Bilateral Hearing Loss

The Veteran contends that he is entitled to a higher rating for his hearing loss because his hearing worsened during the period on appeal and caused him to be fired from his position as a truck driver.   

The Veteran underwent a VA audiological examination in June 2011.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
45
60
60
LEFT
60
80
75
75
75

His average speech thresholds were 44 decibels in the right ear and 76 decibels in the left ear.  Word recognition testing, conducted using the Maryland CNC test, revealed a speech recognition ability of 96 percent in the right ear and 12 percent in the left ear.  

Based on these results, the right ear's hearing impairment warrants a 'I' numeric designation pursuant to Table VI.  See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. The left ear's hearing impairment warrants a 'XI' numeric designation pursuant to Table VI.  Id.  Pursuant to Table VII, after entering the Veteran's left ear (as the poorer ear) and right ear numeric designations, the Veteran is entitled to a 10 percent rating.  Id. at Table VII.

Because these results demonstrate an exceptional pattern of hearing impairment in the left ear, the Board also considered whether utilizing Table VIA would produce more favorable results.  See 38 C.F.R. § 4.86(b).  Under Table VIA, his left ear's hearing impairment warrants a 'VI' numeric designation, which is not more favorable; thus, the Board did not use Table VIA. 

The Veteran underwent a private audiological evaluation in August 2011.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
45
50
55
LEFT
60
80
75
75
80

His average speech thresholds were 40 decibels in the right ear and 78 decibels in the left ear.  While speech audiometry testing was conducted, the NU-6 material was used, rather than the Maryland CNC as required by VA regulations.  Accordingly, these results cannot be used for rating.  See 38 C.F.R. § 4.85(a).  The averages and speech recognition thresholds are, however, almost identical to the June 2011 VA examination results. 

The Veteran underwent a second private audiological evaluation in July 2015.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
50
65
60
LEFT
70
85
90
95
80

His average speech thresholds were 30 decibels in the right ear and 82 decibels in the left ear.  While speech audiometry testing was conducted, it is unclear which word list was used.  Accordingly, these results cannot be used for rating.  See id.

The Veteran was afforded another VA audiological evaluation in January 2016.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
50
65
60
LEFT
60
85
80
75
75

His average pure tone thresholds were 49 decibels in the right ear and 79 decibels in the left ear.  Word recognition testing, conducted using the Maryland CNC test, revealed a speech recognition ability of 100 percent in the right ear and 0 percent in the left ear.

The right ear's hearing impairment warrants a 'I' numeric designation pursuant to Table VI.  See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. The left ear's hearing impairment warrants a 'XI' numeric designation pursuant to Table VI.  Id.  Pursuant to Table VII, after entering the Veteran's left ear (as the poorer ear) and right ear numeric designations, the Veteran is entitled to a 10 percent rating.  Id. at Table VII.

Because these results demonstrate an exceptional pattern of hearing impairment in the left ear, the Board also considered whether utilizing Table VIA would produce more favorable results.  See 38 C.F.R. § 4.86(b).  Under Table VIA, his left ear's hearing impairment warrants a 'VII' numeric designation, which is not more favorable; thus, the Board did not use Table VIA. 

The Veteran underwent a private audiological evaluation in July 2016.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
25
50
60
65
LEFT
70
80
75
80
80

His average pure tone thresholds were 50 decibels in the right ear and 78 decibels in the left ear.  While speech recognition testing was conducted, it is unclear which word list was used.  Accordingly, these results cannot be used for rating.  See 38 C.F.R. § 4.85(a).   The average pure tone thresholds, however, are almost identical to the averages from January 2016.

In light of the lay and medical evidence, the Board finds that a rating in excess of 10 percent is not warranted for any period on appeal.  The Board is sympathetic to the Veteran's complaints of hearing impairment, but disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  While the left ear hearing loss warrants a 'XI,' the highest numeric designation for hearing impairment, the combination of the numeric designations for his right and left ears only warrants a 10 percent rating under Table VII.  See 38 C.F.R. § 4.85.  Accordingly, the claim for an increased rating for bilateral hearing loss is denied. 

To the extent that the Veteran contends he was terminated from his employment due to his hearing impairment, this contention is being considered as part of his claim for entitlement to a TDIU. 


ORDER

Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. 


REMAND

The medical evidence suggests that the Veteran's PTSD has worsened since the June 2014 VA examination.  Specifically, during a June 2015 private psychiatric evaluation, he reported experiencing memory impairment, panic attacks, suicidal ideation, delusions, and hallucinations.  He also presented to VA in November 2015 with complaints of "seeing shadows and hearing voices" and passive suicidal ideation.  The Board thus finds that a remand is necessary for a VA examination to assist in assessing the severity of his PTSD. 

Regarding the Veteran's ear conditions claims, he was afforded a VA examination in May 2016, at which time the examiner opined that the "claimed Meniere's disease and vertigo is less likely than not proximately due to or the result of the Veteran's service-connected hearing loss" because "the Meniere's disease caused the hearing loss; the hearing loss did not cause Meniere's disease."  The Veteran's bilateral hearing loss was service-connected in August 1989 because service records showed bilateral hearing loss at separation from service.  In light of the medical opinion linking the hearing loss to Meniere's disease, an addendum opinion is necessary to assess whether the Meniere's disease began in service.  If the examiner determines that the Veteran's Meniere's disease did not begin in service, the examiner must render an opinion regarding the claim for vertigo, which was not addressed in the rationale for the May 2016 medical opinion. 

Finally, the claim for entitlement to a TDIU must also be remanded because it is inextricably-intertwined with the remanded issues. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain the Veteran's VA medical records dated from May 2016 to the present.

2.  Advise the Veteran that he should submit any documentation he has to substantiate his claim that he was fired from his last job due to his inability to pass a hearing test. 

3. Schedule the Veteran for a VA examination to assist in assessing the severity of his PTSD.  The examiner should review the claims file and opine on how the Veteran's PTSD impacts his ability to work

4. Forward the Veteran's claims file to the examiner who issued the May 2016 medical opinion or another examiner if unavailable.  An in-person examination is not necessary unless determined otherwise by the examiner.  After review of the claims file, including a copy of this remand, the examiner should render the following opinions:

a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's Meniere's disease began in service or is otherwise related to service.  

b. If not, whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo was caused or aggravated by his service-connected hearing loss. 

The examiner should consider that the Veteran separated from service with bilateral hearing loss, was diagnosed with vertigo in November 1990, and continued to complain of dizziness until his September 2015 Meniere's disease diagnosis. 

5. Then, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, furnish the Veteran and representative with a Supplemental Statement of the Case.   

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.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs