Citation Nr: 18141899 Decision Date: 10/12/18 Archive Date: 10/11/18 DOCKET NO. 14-29 118 DATE: October 12, 2018 ORDER A compensable rating for a bilateral hearing loss disability is denied. REMANDED ISSUES Service connection for a foot disability is remanded. Service connection for neck disability is remanded. A rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. A rating in excess of 20 percent for a back disability is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss disability is manifested by no worse than level I hearing in the left ear and level II hearing in the right ear. CONCLUSION OF LAW The criteria for a compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1978 to August 1979. As an initial matter, the Board notes that in August 2014, the Veteran perfected the appeal of the issues of service connection for a heart disability and a total disability rating due to individual unemployability as the result of service connected disability (TDIU). After perfecting his appeal, however, a March 2015 rating decision granted entitlement to service connection for a heart disability, and a July 2015 rating decision granted a TDIU. Thus the benefits sought on appeal have already been granted in full. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claims. VA provided all appropriate notice to the Veteran in November 2011. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. The Appellant participated in a hearing before the undersigned in December 2014, and a transcript of this hearing has been associated with the record. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that VA’s duties to notify and assist have been met. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when 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). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lindemann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. When the examiner certifies that use of the speech discrimination test is not appropriate because of factors such as language difficulties, inconsistent speech discrimination scores, or when there is an exceptional pattern of hearing impairment the rating may be based solely on puretone threshold testing (under Table VIA). 38 C.F.R. § 4.85. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. The Veteran underwent an audiological examination in June 2010, at which time the following puretone results were noted, in decibels: HERTZ 1000 2000 3000 4000 LEFT 45 55 60 65 RIGHT 45 50 55 60 Puretone threshold averages were 56.25 decibels in the left ear and 52.5 decibels in the right ear. Speech discrimination scores were 92 percent in the left ear and 88 percent in the right ear. That audiometric evaluation equates to level I hearing in the left ear (between 50 and 57 average puretone decibel hearing loss, with between 92 percent and 100 percent speech discrimination), and level II hearing in the right ear (between 50 and 57 average puretone decibel hearing loss, with between 84 percent and 90 percent speech discrimination). Neither ear showed an exceptional pattern of hearing loss. With an acuity level determined for each ear, the Board turns to Table VII in order to determine the appropriate percentage evaluation for the Veteran’s level of hearing acuity. With the poorer ear at level II hearing and the better ear at level I hearing, a noncompensable percent rating is warranted under Diagnostic Code 6100. The Veteran filed his claim for an increased rating in April 2011. The Veteran underwent an audiological examination in February 2012, at which time the examiner found that the audiological test results were invalid for rating purposes. The examiner noted that there was a mismatch between the puretone audiometry results and the speech reception threshold, and an unlikely decline in hearing since a June 2010 examination. The Board will therefore not consider the results of this audiological examination. The Veteran underwent an audiological examination in July 2014, at which time the following puretone results were noted, in decibels: HERTZ 1000 2000 3000 4000 LEFT 25 30 40 40 RIGHT 25 30 45 35 Puretone threshold averages were 34 decibels for both ears. Speech discrimination scores were 96 percent in the left ear and 88 percent in the right ear. That audiometric evaluation equates to level I hearing in the left ear (between 0 and 41 average puretone decibel hearing loss, with between 92 percent and 100 percent speech discrimination), and level II hearing in the right ear (between 0 and 41 average puretone decibel hearing loss, with between 84 percent and 90 percent speech discrimination). Neither ear showed an exceptional pattern of hearing loss. With an acuity level determined for each ear, the Board turns to Table VII in order to determine the appropriate percentage evaluation for the Veteran’s level of hearing acuity. With the poorer ear at level II hearing and the better ear at level I hearing, a noncompensable percent rating is warranted under Diagnostic Code 6100. The Veteran underwent an audiological examination in May 2015, at which time the following puretone results were noted, in decibels: HERTZ 1000 2000 3000 4000 LEFT 15 25 30 35 RIGHT 15 25 35 35 Puretone threshold averages were 26 decibels for the left ear and 28 decibels for the right ear. Speech discrimination scores were 96 percent in the left ear and 94 percent in the right ear. That audiometric evaluation equates to level I hearing in both ears (between 0 and 41 average puretone decibel hearing loss, with between 92 percent and 100 percent speech discrimination). Neither ear showed an exceptional pattern of hearing loss. With an acuity level determined for each ear, the Board turns to Table VII in order to determine the appropriate percentage evaluation for the Veteran’s level of hearing acuity. With both ears at level I hearing, a noncompensable percent rating is warranted under Diagnostic Code 6100. Upon review of the evidence of record, the Board finds that the medical evidence does not support the assignment of a compensable rating for the Veteran’s bilateral hearing loss disability at any time. In addition to the results of this audiometric testing, the Board has closely reviewed the statements that the Veteran has submitted in support of his appeal. The Board acknowledges the Veteran’s concerns that he has experienced difficulty hearing. While the Board sympathizes with the impairment that the Veteran’s hearing loss causes him, a higher rating for hearing loss requires greater objectively measured levels of hearing loss than the Veteran has demonstrated. The Board concludes that the preponderance of the evidence is against granting a compensable rating for the Veteran’s bilateral hearing loss disability. As the preponderance of the evidence is against the claim, the claim is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND With regard to the Veteran’s claim for service connection for a foot disability, the Veteran was involved in an in-service motor vehicle accident, and he was additionally treated on a number of occasions in-service for foot complaints such as ingrown toenails. Since filing his claim for service connection, the Veteran has been diagnosed with a number of foot disabilities, including bilateral heel spurs, plantar fasciitis, and pes planus. The Veteran has not yet been afforded with a VA examination addressing the nature and etiology of his foot disabilities. With currently-diagnosed foot disabilities and complaints of in-service symptoms, the Veteran the AOJ should arrange for the Veteran to receive such examinations. The same is true of the claimed neck disorder. The service treatment records document a motor vehicle accident involving a concussion and headaches. The record shows the Veteran has a current neck disorder. However, the Veteran has not been afforded a VA examination. One is necessary in this case. With regard to the Veteran’s claim for a rating in excess of 30 percent for PTSD, the Veteran last received a psychiatric examination addressing in March 2015. The Veteran’s treatment records since that time suggest that the Veteran’s psychiatric symptoms have worsened since that time. For example, the March 2015 examiner found the Veteran’s symptoms, consisting of depressed mood, anxiety, and sleep impairment, to be mild or transient. Since that time, the Veteran has complained of increased symptoms, such as panic attacks (May 2018), and getting into violent altercations with family members (May 2018). The Veteran has been married two additional times, his sixth and seventh marriages, since March 2015. With the Veteran’s psychiatric symptoms apparently increasing in severity and frequency, the Veteran should be provided with an additional examination to address the current severity of his PTSD. With regard to the Veteran’s claim for an increased rating for a back disability, a July 2014 rating decision granted service connection for a back disability and assigned an initial 20 percent rating. In November 2014, the Veteran submitted a notice of disagreement as to the initial rating for his back disability. As yet, a statement of the case does not appear to have been issued, and it is therefore proper to remand this issue to ensure that the Veteran is provided with a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240 41 (1999). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his PTSD. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed foot disability. After reviewing the Veteran’s electronic claims file and describing the nature of the Veteran’s disability, the examiner should address whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran’s foot disability began during or was otherwise caused by his military service. A complete rationale for each opinion offered should be provided. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed neck disability. After reviewing the Veteran’s electronic claims file and describing the nature of the Veteran’s disability, the examiner should address whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran’s neck disability began during or was otherwise caused by his military service, including the service motor vehicle accident. A complete rationale for each opinion offered should be provided. 4. Issue a statement of the case addressing the claim of entitlement to a rating in excess of 20 percent for a back disability. The Veteran should be informed of the period of time within which he must file a substantive appeal to perfect an appeal of this issue to the Board. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn