Citation Nr: 1806093	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  16-41 032	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, anxiety, and sleeping problems.

2. Entitlement to a higher rating for bilateral hearing loss rated as noncompensable prior to April 26, 2016.

3. Entitlement to a higher rating for bilateral hearing loss rated as 30 percent from April 26, 2016. 

4. Entitlement to total disability due to individual unemployability based on service-connected disabilities on an extra-schedular basis under 38 C.F.R. § 4.16(b) (2017).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Leifert, Associate Counsel


INTRODUCTION

The Veteran had active military service from November 1962 to August 1964.

These matters come before the Board of Veterans Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for an acquired psychiatric disability and continued a noncompensable rating for bilateral hearing loss.  The Veteran timely appealed the claims. 

In July 2016, the RO increased the Veteran's disability rating for bilateral hearing loss to 30 percent, effective April 26, 2016.  The Veteran has not withdrawn his appeal for a higher rating before or after the effective date of the increased rating and the Board will therefore consider whether a higher rating is warranted for any portion of the appeal period.  See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise).

The Veteran has alleged an inability to retain employment due to his service-connected bilateral hearing loss.  See, e.g., Notice of Disagreement, May 2015.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  As such, the issue of entitlement to a TDIU is now properly before the Board.  See Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).

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 issue of TDIU on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran does not have a current psychiatric disorder, to include PTSD, depression, anxiety, and sleeping problems, that is related to service.

2.  Prior to April 26, 2016, the Veteran demonstrated, at worst, level IV hearing acuity in his right ear and level V hearing acuity in his left ear.

3.  From April 26, 2016, the Veteran demonstrated, at worst, level IV hearing acuity in his right ear and level IX hearing acuity in his left ear.


CONCLUSIONS OF LAW

1.  The criteria for service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and sleeping problems, are not met.  38 U.S.C. §§ 1110, 1131 (2012), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

2.  The criteria for a rating of 10 percent, but not higher, for bilateral hearing loss prior to April 26, 2016, have been met.  38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100.

3.  The criteria for a rating in excess of 30 percent for bilateral hearing loss from April 26, 2016, have not been met.  38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, DC 6100.




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with regard to 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).

II.  Service Connection

Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service.  38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Generally, service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

In addition to the above criteria, claims of service connection for PTSD require medical diagnosis conforming to the requirements of section 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor.  38 C.F.R. § 3.304 (f); see also 38 C.F.R. §4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  If the evidence shows that a veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances of service, lay statements alone may be enough to prove the in-service stressor.  38 C.F.R. § 3.304(f)(2).  Additionally, a stressor may be proven with lay statements alone if the veteran claims a stressor due to fear of hostile military or terrorist activity, the claimed stressor is consistent with the circumstances of service, and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran's symptoms are related to the claimed stressor.  38 C.F.R. § 3.304 (f)(3).

The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Laypersons may provide evidence of diagnosis and nexus under 38 U.S.C. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

"[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 

The Veteran contends that he has a psychiatric disorder, claimed as PTSD, depression, anxiety, and sleeping problems, that is related to service.

The Veteran's service treatment records (STRs) reflect complaints of nervousness in February 1963 and April 1963, with a diagnosis of immature personality in February 1963.  An August 1964 separation report of medical examination indicated a normal psychiatric evaluation.

An April 2016 VA examination report reflects that the Veteran had never sought mental health treatment.  The examiner reviewed the Veteran's claims file and noted that there were no records of an in-service incident that could have caused PTSD or any other claimed mental health condition.  The examiner administered several psychological tests that had results within normal limits.  After an in-person interview and review of the claims file, the examiner opined that there was no diagnosis of a mental health disorder.  However, the examiner then stated that the Veteran had a psychiatric diagnosis that met the DMS criteria, but that there was no evidence that it was related to the Veteran's military service.

In a May 2016 addendum opinion, the April 2016 VA examiner clarified that the Veteran had never been diagnosed with a mental disorder in his life, and that he reported that he had never been to a behavioral health professional or been evaluated prior to his April 2016 interview.  The examiner stated that the April 2016 examination indicated that the Veteran did not have a mental health disorder according to the DSM-IV or DSM-V criteria.

A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect."  38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities").  In Sanchez-Benitez, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001), the Federal Circuit held that, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of disability that has resulted from a disease or injury that occurred in service.  

In this case, while the Veteran has asserted that he suffers from psychiatric symptoms due to PTSD, the April 2016 VA examiner found that he did not meet the criteria for a mental disorder under the DSM-IV or DSM-V.  The examiner based his findings on a review of the Veteran's claims file and an in-person interview.  The examiner also clarified the apparent inconsistency and explained the reasons for his conclusions based on an accurate characterization of the evidence in the May 2016 clarification.  His opinion is therefore entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

The Board has also considered the Veteran's statements concerning the nature and etiology of his claimed psychiatric symptoms.  While the Veteran is competent to report symptoms such as hypervigilance, the question of whether a diagnosis of a psychiatric disorder is warranted is one as to which lay evidence is not competent.  Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant").  Thus, the Veteran's own assertions as to the nature and etiology of any psychiatric disorder are not competent.   

Based on the above evidence of a lack of a current psychiatric disorder, the Veteran's claim must be denied.  Without a current disability, "there can be no service connection . . . ."  Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007).  The Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

III.  Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim.  The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA's rating schedule.  The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four.  38 C.F.R. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.  If impaired hearing is service-connected in only one ear, the nonservice-connected ear is a Roman numeral designation of I.  38 C.F.R. § 4.85(f).

There are certain exceptional patterns of hearing impairment.  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) (2017).  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 elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).

In the present case, the Veteran contends that he should receive a compensable rating prior to April 26, 2016, and a rating in excess of 30 percent thereafter. 

An April 2015 VA audiological examination reflects puretone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
20
55
65
70
LEFT
65
60
70
90

Puretone averages were 53 decibels for the right ear, and 64 decibels for the left ear.  Speech audiometry based on the Maryland CNC revealed speech recognition ability of 84 percent in the right ear, and of 80 percent in the left ear.  The Veteran reported that his hearing loss caused difficulty hearing in many situations and that he could not talk to small children.  

Based on those results, the Veteran's left ear hearing loss meets the criteria under 38 C.F.R. § 4.86 and will be considered under both Table VI and Table VIA.  The Board will determine the Roman numeral designation under whichever results in the higher numeral.  Here, under Table VI, the Veteran demonstrated level IV hearing impairment, and under Table VIA he demonstrated level V hearing impairment.  As such, the Board will apply level V under Table VIA for left ear hearing loss.  Concerning the Veteran's right ear hearing loss, based on those results with the utilization of Table VI, the Veteran demonstrated level II hearing impairment.  38 C.F.R. § 4.85(f).  Applying the results to Table VII, a 10 percent disability rating is warranted for hearing loss.  See 38 C.F.R. § 4.85, DC 6100.  

A May 2015 private audiological examination reflects average puretone thresholds in the right ear of 60 decibels and in the left ear of 62 decibels.  Speech audiometry based on the Maryland CNC revealed speech recognition ability of 80 percent in the right ear, and of 76 percent in the left ear.  The Board notes that the private physician did not provide the puretone threshold at each of the four specified frequencies at 1000, 2000, 3000, and 4000 Hertz, but only the average puretone thresholds.  As such, based on those results, with the utilization of Table VI, the Veteran demonstrated level IV hearing impairment in his bilateral ears.  38 C.F.R. § 4.85(f).  Applying the results to Table VII, a 10 percent disability rating is warranted for hearing loss.  See 38 C.F.R. § 4.85, DC 6100.  

An April 2016 VA audiological examination reflects puretone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
70
70
65
LEFT
40
65
75
85

Puretone averages were 60 decibels for the right ear, and 66 decibels for the left ear.  Speech audiometry based on the Maryland CNC revealed speech recognition ability of 80 percent in the right ear, and of 38 percent in the left ear.  The Veteran reported that even with his hearing aids he could not understand people.  He stated that his hearing while teaching in the classroom was almost as bad with the hearing aids as it was without them, and that the wind and background noises were too loud.  

Based on those results, the Veteran does not meet the criteria under 38 C.F.R. § 4.86 for either ear.  As such, based on those results, with the utilization of Table VI, the Veteran demonstrated level IV hearing impairment in the right ear and level IX hearing impairment in the left ear.  38 C.F.R. § 4.85(f).  Applying the results to Table VII, a 30 percent disability rating is warranted for hearing loss.  See 38 C.F.R. § 4.85, DC 6100.  

The Board notes that the Veteran contends that the April 2016 VA audiological examination is stale due to the passage of time, and that the case should be remanded to obtain a new examination.  However, the duty to obtain a new examination is triggered when the available evidence of record indicates that the previous examination no longer reflects the current state of the Veteran's disability.  See Palczewski, 21 Vet. App. at 181-83; VAOPGCPREC 11-95 (1995).  There is no duty to remand simply because of the passage of time since an otherwise adequate VA examination was conducted.  Id.  Here, the Veteran has not asserted that his condition has changed since the last VA audiological examination in April 2016, and there is no other indication in the records that his hearing loss has worsened.  Since there is no indication that the Veteran's hearing loss disability has worsened, a remand for a new VA examination is not warranted.  Moreover, given the exigencies of transferring a claim from the Board to the AOJ to a VA medical center where the examination will most likely take place, along with scheduling of the examination, issuance of a supplemental statement of the case with opportunity for response, and transfer back to the Board, remanding increased rating claims for a new examination when the most recent examination is approximately two years old or less could result in the case being returned to the Board with a similarly "old" exam.  See Massie v. Shinseki, 25 Vet. App. 123, 128 (2011) (citing  Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law").

In addition, for the reasons indicated in the discussion above, the Board finds that the examinations obtained in this case are adequate, as they are predicated on consideration of the medical records in the Veteran's claims file, to include the Veteran's statements, and document that the examiners conducted a full physical examination of the Veteran.

As such, the Board finds that prior to April 26, 2016, a rating of 10 percent for bilateral hearing loss is warranted; and that from April 26, 2016, a rating in excess of 30 percent is not warranted.  As the preponderance of the evidence reflects that these ratings are warranted based on a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, the benefit of the doubt doctrine is not for application.  Lendenmann v. Principi, 3 Vet. App. 345 (1992); 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 

The Board has considered the Veteran's claim and decided entitlement based on the evidence.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and sleeping problems, is denied.

Entitlement to a rating of 10 percent, but not higher, for bilateral hearing loss prior to April 26, 2016, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a rating higher than 30 percent disabling for bilateral hearing loss from April 26, 2016, is denied.


REMAND

The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the claim for a TDIU.

The Board notes that the Veteran is only service-connected for his bilateral hearing loss, currently rated as 30 percent disabling.  The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability.  38 C.F.R. § 4.16(a).  As such, the Veteran does not meet the schedular criteria for entitlement to a TDIU.

In his May 2015 notice of disagreement, the Veteran stated that he was currently employed as a school principal but was "having to quit [his] job due to the inability to converse with students, teachers, and parents."  As stated above, the Board finds that a claim for a TDIU is properly before the Board as part and parcel of the Veteran's claim for an increased rating for his service-connected bilateral hearing loss.  Rice, 22 Vet. App. at 447.  

As the Veteran does not meet the schedular criteria for a TDIU, it cannot grant TDIU in the first instance.  Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001) (holding that the Board could not award TDIU on an extra-schedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration).  The issue of entitlement to a TDIU will therefore be remanded for initial AOJ development and adjudication, to include proving the Veteran with the formal TDIU application, VA Form 21-8940, and considering whether referral of the claim to the Director of Compensation under 38 C.F.R. §4.16(b) is appropriate. 

Accordingly, the issue of entitlement to a TDIU 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.  Provide a VA Form 21-8940 to the Veteran.

2.  Review the claims file and conduct any additional development deemed appropriate.

3.  After completing any additional development deemed necessary, readjudicate the issue of entitlement to a TDIU, to include submitting to the Director of Compensation the matter of the Veteran's entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) due to his service-connected disability.  If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the matter 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).




______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs