Citation Nr: 18143904 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-10 308 DATE: October 22, 2018 ORDER Entitlement to service connection for headaches is granted. Entitlement to service connection for an acquired psychiatric disability, to include depression and insomnia, and to include as secondary to service-connected right shoulder disability, tinnitus, and hearing loss, is granted. Entitlement to an initial compensable rating for left ear hearing loss disability is denied. Entitlement to an evaluation in excess of 50 percent for degenerative arthritis of the right shoulder is denied. REMANDED Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s migraine headaches are etiologically related to his active service. 2. The Veteran has an acquired psychiatric disability that is etiologically related to his active service. 3. The Veteran’s hearing impairment is no worse than Level I in his left ear. 4. The right shoulder is ankylosed in an unfavorable position; there is no false or flail joint. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). 3. The criteria for an initial compensable rating for left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 43, 4.7, 4.85, Diagnostic Code 6100 (2018). 4. The criteria for a rating in excess of 50 percent for a right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5200 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Navy from March 1974 to December 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). During the course of the appeal, the Veteran has asserted that he is no longer able to work due to his service-connected shoulder disability. The issue of a TDIU has been raised by the record. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Headaches The Veteran asserts that his diagnosed headaches are etiologically related to his active service. Specifically, the Veteran asserts that his headaches are due to service-connected tinnitus and secondary to his depressive disorder. In support of his claim he has submitted private medical examination dated in September 2016. The examiner opined that migraine headaches were caused by tinnitus and depression. The Veteran competently and credibly reported that his headaches occurred when his ears were ringing or when he felt stressed from depression. The Veteran’s observed experience was consistent with medical knowledge. Tinnitus is currently service-connected, and depression is determined to be service-connected herein. There is no evidence of record contradicting the private opinion, and no basis upon which to question the rationale offered or conclusion reached. As the totality of the relevant evidence favors the claim, service connection for a headache disorder is warranted. Acquired Psychiatric Disability Similarly, the Veteran contends that he has an acquired psychiatric disability as a result of his active service. Specifically, the Veteran contends that his service-connected right shoulder, tinnitus, and left ear hearing loss disability caused his acquired psychiatric disorder. He has again submitted a private medical opinion, from a psychologist, dated in July 2016. Dr. RW diagnosed depressive disorder with anxious features, which he related to the Veteran’s service-connected right shoulder, hearing loss, and tinnitus disabilities. These conditions heavily impacted his daily functioning and outlook. There is no evidence of record contradicting the private opinion, and no basis upon which to question the rationale offered or conclusion reached. As the totality of the relevant evidence favors the claim, service connection for an acquired psychiatric disorder is warranted.   Increased Disability Evaluation Left Ear Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § Part 4 (2017). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Non-service connected ears are counted as Level I; the Veteran is not service-connected for his right ear. The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Veteran asserts that he should have a higher rating for his left ear hearing loss disability as his symptoms are worse than those contemplated by the currently assigned rating. At a March 2015 VA examination, audiometric testing results were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 10 15 25 40 23 Left Ear 10 30 40 55 34 Speech recognition was measured at 94 percent in both ears. The examiner diagnosed mild bilateral sensorineural hearing loss with normal speech recognition scores. Applying those values to the rating criteria results in a numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table I at 38 C.F.R. § 4.85 produces a noncompensable (0 percent) rating. The Board in no way discounts the difficulties that the Veteran complains of because of his hearing loss. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability, as per the regulatory history of 38 C.F.R. § 4.85 and § 4.86. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) to develop criteria that contemplated situations in which a Veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found, through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. The Veteran’s complaints related to actual functional impairment are therefore factored into the criteria as applied. Further, the Veteran’s complaints of hearing difficulty and use of hearing aids have been considered under the numerical criteria set forth in the rating schedule. Those criteria allow no more than a noncompemsbale rating for left ear hearing loss at this time. Right Shoulder The Veteran generally contends entitlement to a rating greater than the currently assigned 50 percent under Code 5200. This evaluation is assigned for unfavorable ankylosis of the joint, with abductionlimited to 25 degrees from the side. No higher rating is available under this Code. To warrant a higher evalaution, the right shoudler would have to be rated under Code 5202, for impairment of the humerus. A 60 percent rating is available for nonunion of the joint (flase flail joint) and an 80 percent rating for loss of the humeral head (flail shoulder). 38 C.F.R. § 4.71a. There is no finding or indication of any nonunion in the right shoulder which could support sucha a change in Diagnostic Code. Further, the nature of the required findings are the exact opposite of the current symptoms for which a 50 percent rating is assigned. There is no schedular basis for assignment of a higher rating. Consideraiton has been given to extraschedular evaluation under 38 C.F.R. § 3.321, but the currently applied criteria fully encompass the associated sugns and symptoms, and secondary conditions accoutn for any remaining complaints, such as depression. In short, all right shoulder complants and manifestations are addressed by the currently applied criteria. See VA Gen. Coun. Prec. Op. 6-1996 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND TDIU A review of the record shows that the Veteran previously did not meet the schedular criteria for assignment of a TDIU. However, in the decision above, the Board granted entitlement to service connection for headaches and entitlement to service connection for an acquired psychiatric disorder. Therefore, the Board finds that the issue of entitlement to a TDIU should be adjudicated following the implementation of the Board’s decisions above. Additionally, current treatment records should be identified and obtained before a decision is made in this case. Entitlement to TDIU should then be re-evaluated. The matters are REMANDED for the following action: 1. Take appropriate actions to implement the above grants of service connection for headaches and a psychiatric disorder, to include assignment of initial evaluations and effective dates. 2. Upon completion of the above, and any additional development deemed appropriate, readjudicate the issue of entitlement to TDIU. If the benefit sought remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel