Citation Nr: 18143683 Decision Date: 10/22/18 Archive Date: 10/19/18 DOCKET NO. 16-30 941 DATE: October 22, 2018 ORDER Entitlement to an initial compensable rating for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. At worst, the Veteran has Level I hearing loss in his service-connected right ear, to include consideration of an exceptional pattern of right ear hearing loss, and Level I hearing loss in his non-service-connected left ear. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, left ear hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria are not met for an initial compensable rating for the right ear hearing loss. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.85 including Diagnostic Code 6100, 4.86. 2. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1976 to July 1997. In December 2017 the Veteran raised the issue of reopening his claim of entitlement to service connection for sleep apnea. He is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1 (p), 3.155, 3.160. 1. Entitlement to an initial compensable rating for right ear hearing loss. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The “puretone threshold average” as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In the instant case, only the hearing loss in the right ear is service connected. Under 38 C.F.R. § 4.85(f), if impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of § 3.383. Therefore, for the purposes of applying 38 C.F.R. § 4.85(f) to Table VII, the Board designates the non-service-connected left ear to have only, at most, Level I hearing loss. An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). The Veteran’s underlying claim for service connection for hearing loss was received in July 2014. On VA examination in January 2015, the examiner noted that the Veteran’s hearing loss impacted ordinary conditions of daily life as the Veteran reported that he could not hear his boss speaking on the other side of a partition, his wife indicated that he has trouble understanding speech, and he needed to ask people to speak up. Thus the examiner discussed the functional effects caused by the Veteran’s hearing disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 40, 30, and 25, for an average of 28 decibels. The speech recognition score, using the Maryland CNC Test, was 96 percent in the right ear. Evaluating these VA audiological test results cited above, when the puretone threshold averages and the speech recognition scores for the right ear from the VA examination in January 2015 are applied to Table VI, the numeric designation of right ear hearing impairment is level I. Subject to 38 C.F.R. § 4.85(f) (hearing loss provisions for one service-connected ear), the Veteran’s non-service-connected left ear is assigned Level I hearing, for the purpose of evaluating the service-connected right ear. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. See 38 C.F.R. § 4.85, DC 6100. The evidence also includes a private audiogram in January 2013. However, the Veteran was granted service connection for right ear hearing loss effective July 22, 2014. Even if the January 2013 audiogram was conducted during the claim process, because Maryland CNC speech discrimination testing was not indicated, the audiogram would not be adequate for VA rating purposes. See 38 C.F.R. § 4.85 (a). Moreover, in the context of the rating criteria, hearing loss worse than what was documented in the January 2015 VA examination report was not shown as the January 2013 audiogram shows puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 10, 40, 30, and 20. Based on the evidence discussed above, the provisions of 38 C.F.R. § 4.86 which address exceptional patterns of hearing loss are not applicable in the instant case. Consideration is given to the functional effects of the Veteran’s hearing, which caused him difficulty to understand spoken words. Although the Veteran’s statements regarding his symptoms are competent and credible, the evaluation of hearing loss is reached by a mechanical application of the rating schedule, to the numeric designations assigned, after audiometric evaluations are rendered. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for an evaluation of hearing loss, which requires specific testing. Such mechanical application does not warrant a compensable rating for right ear hearing loss. The Regional Office (RO) in the June 2016 Statement of the Case indicated that the Veteran contended that his hearing is much worse than as reflected in the rating schedule. In light of this matter being raised, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321 (b), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Court of Appeals for Veterans Claims has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). In the instant case, referral is not warranted. Treatment records during the appeal period and the VA examination in January 2015, show the Veteran has difficulty understanding speech and hearing people, which are explicitly contemplated by the rating schedule. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Thus the rating schedule is not inadequate. As the first element of Thun has not been met no further discussion of the remaining elements is required. Accordingly, the evidence preponderates against the claim for an initial compensable rating for right ear hearing loss. The benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for left ear hearing loss. Sensorineural hearing loss (organic disease of the nervous system) is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) apply to the Veteran’s claim for service connection for hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels; or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board concludes that the Veteran does not have a current diagnosis of left ear hearing loss and has not had one at any time during the pendency of the claim, received in July 2014, or recent to the filing of the claim. 38 C.F.R. § 3.303. A private audiogram in January 2013 shows puretone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows 10, 10, 30, 30, and 25. Maryland CNC speech discrimination testing was not indicated. On VA audiological examination in January 2015, puretone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows 10, 15, 35, 30, and 25. The speech recognition score, using the Maryland CNC Test, was 96 percent in the left ear. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran believes that he has a current diagnosis of left ear hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it is based on audiometric findings and requires specialized medical education/knowledge to interpret diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent evidence. REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). The Veteran was afforded a VA PTSD examination in January 2015. However, the examiner’s findings are inconsistent. The examiner checked the box indicated that the Veteran has a mental disorder other than PTSD while also concluding that he did not have a diagnosis of a mental disorder. Furthermore, subsequent to the January 2015 VA examination, the Veteran in his June 2016 Form 9 Appeal indicated that his current doctor informed him that he had PTSD and his most recent VA treatment records dated in December 2016 show an assessment/plan of depression/PTSD screening noting that the Veteran was to resume the prescription for Sertraline. Thus, a new VA psychiatric examination is necessary to determine whether the Veteran has a psychiatric disorder that is due to service. Further, the Veteran contends that he had multiple stressors during service including fear of hostile military or terrorist activity while patrolling the DMZ during service in Korea and fear of being killed by soldiers in East Germany in October 1984. In the June 2016 Statement of the Case, the RO noted that an attempt was not made to verify the Veteran’s stressors, however on remand additional development is warranted regarding the Veteran’s stressors.   The matter is REMANDED for the following action: 1. Obtain any outstanding treatment records, VA or private. All attempts associated therewith should be memorialized in the Veteran’s claims file. 2. Obtain additional information from the Veteran regarding the claimed stressors. 3. Regardless of whether the Veteran responds to the requests for additional information, review the file and prepare a summary of the Veteran’s claimed stressors. Note that service personnel records show that the Veteran served in Germany from October 1984 to October 1988 and in Korea from May 1978 to May 1979. The record includes an October 2014 stressor statement documenting the Veteran’s claims concerning the following stressors: a.) In November 1978 the Veteran was assigned to a guard unit and ran combat patrols along the DMZ in Korea. A noise was heard and he had to tackle a fellow service officer who opened his M16, which created an international incident due to an armistice agreement with North Korea. b.) The Veteran was sent out to set an ambush near DMZ. He thought enemy troops were encroaching causing him to almost fire his weapon on a KATUSA (Korean Assigned to the United States Army). c.) In October 1984 while with Company A 6th Battalion 502 Infantry in Berlin, the Veteran ended up getting escorted off a train in East Germany. He feared he was going to get killed. Afterwards he went to the Brigade Command Sergeant’s Major Office for debriefing. 3. Provide the requested summary and all associated service documents to the JSRRC, or any other appropriate agency, for verification of the alleged stressful events in service. The JSRRC should be provided with a copy of any information obtained above, and should be requested to provide any additional information that might corroborate the Veteran’s alleged stressors. 4. Schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist to determine the current nature and likely etiology of any diagnosed psychiatric disorder. All inservice stressors verified by the JSRRC should be provided to the examiner. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. After reviewing the claims folder and examining the Veteran the examiner must: a.) Offer an opinion as to whether the Veteran meets the DSM-5 criteria for a diagnosis of PTSD. If so, the examiner must provide an opinion as to whether the PTSD symptoms are related to fear of hostile military or terrorist activity during service; a stressor verified by the JSRRC, if any; or to the Veteran’s stressor of phobia of snakes documented in the service treatment records dated in July 1980 and October 1980 and inservice reports of medical history dated in December 1987 and October 1991. The examiner is hereby advised that the Veteran in October 1984 stated that his inservice stressors included his former spouse almost being killed in a disco explosion in Berlin and in January 2015 submitted an article regarding a disco explosion in West Berlin in 1986. The examiner is also advised that the Veteran stated in October 2014 that he was stunned by a nighttime blast during a basic non-commissioned officers training and his DD 214 shows that for over 20 years his military occupational specialty was infantryman.   b.) Offer an opinion as to whether the Veteran has any other psychiatric disorder per the DSM-5 criteria other than PTSD that is at least as likely as not (i.e., there is a 50 percent or greater probability) related to service, to include his treatment of phobia of snakes in October 1980. The examiner is hereby advised that on the inservice reports of medical history in March 1997 and October 1982 the Veteran indicated that he had nervous trouble, depression or excessive worry. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel