Citation Nr: 18147983 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 14-21 020 DATE: November 6, 2018 ORDER Entitlement to service connection post-traumatic stress disorder (PTSD) is denied. New and material evidence having not been received, the claim for service connection for an epileptic seizure disorder is denied. Entitlement to a compensable rating prior to March 9, 2016 and in excess of 10 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. At no time during the pendency of the appeal does the Veteran have a current diagnosis of PTSD and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. 2. In a final decision issued in November 2004, the Regional Office denied the Veteran’s claim for service connection for an epileptic seizure disorder. The Veteran did not appeal this decision. 3. Evidence added to the record since the last final denial in November 2004 rating decision is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for epileptic seizure disorder. 4. For the appeal period prior to March 9, 2016, the Veteran’s bilateral hearing loss was manifested by no worse than Level II hearing impairment in the right ear and level II in the left ear. 5. For the appeal period from March 9, 2016, the Veteran’s bilateral hearing loss was manifested by no worse than level IV hearing impairment in the right ear and level IV hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The November 2004 rating decision that denied the Veteran’s claim of entitlement to service connection for an epileptic seizure disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for epileptic seizure disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The criteria for entitlement to an initial compensable rating prior to March 9, 2016, and in excess of 10 percent thereafter, for bilateral hearing loss is denied. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.22, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1961 to April 1965. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decision issued in in August 2009 and March 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, the Board remanded the instant appeals for additional development. The Veteran requested a hearing in his April 2017 substantive appeal and such a hearing was scheduled for September 2018. In September 2018, prior to the scheduled Board hearing, the Veteran submitted correspondence indicating that he wished to withdraw his request for a Board hearing. Under 38 C.F.R. § 20.704(e) (2017), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. The Board notes that, in an unappealed November 2004 rating decision, the agency of original jurisdiction denied a claim for service connection for dysthymic disorder with anxiety disorder. Accordingly, this appeal is limited to the Veteran’s claim for service connection for PTSD, and is not expanded to other acquired psychiatric disorders. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied if the veteran has a disability at the time she files her service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In addition to the general principles governing service connection, to establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a). In this regard, the Board notes that, for cases certified to the Board after August 4, 2014, as is the case here, the diagnosis of PTSD must be in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection PTSD The Veteran contends that he has PTSD due to his military service, to include his grand mal seizure which occurred in January 1963. The service treatment records do not contain any complaints, treatment, findings or diagnoses of PTSD. A February 1965 service discharge examination found the Veteran to be psychiatrically normal and the Veteran denied that he suffered from or that he ever suffered from nervous trouble of any sort in an accompanying Report of Medical History. The April 2014 VA treatment records reflect that neuropsychological testing conducted in February 2014 had revealed PTSD. In the February 2014 neuropsychological report addendum, the examiner provides a diagnosis of PTSD based on the testing results. However, this diagnosis is not supported by a definite stressor identified by the Veteran and the Board accords less probative weight to the diagnosis of PTSD provided in this addendum. A May 2014 VA examiner found that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria as he did not experience a traumatic stressor as defined by either the DSM-IV or DSM-5 and that the Veteran does not have a mental disorder that conforms with the DSM-5 criteria. Similarly, a February 2017 VA examiner found that the Veteran did not suffer from a diagnosed mental disorder and that no mental disorder had been diagnosed. The February 2017 VA examiner also states that the Veteran does not have any symptoms attributable to mental disorders that are not associated to major depressive disorder. He opined that the Veteran’s current symptoms do not meet the diagnostic criteria for any mental disorder related to military service. The examiner also notes that although the Veteran is receiving treatment for unspecified depression and schizotypal symptoms, these conditions were not evident in his interview. The evidentiary record does not show any competent evidence of a diagnosis of PTSD. Thus, the Board must conclude that the Veteran does not currently have a PTSD. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, supra. Without competent evidence of a diagnosis of PTSD, the Board must deny the Veteran’s claim. Degmetich v. Brown, 104 F.3d 1328 (1997) (the existence of a current disability is the cornerstone of a claim for VA disability compensation). In summary, the Board finds that the most probative evidence shows that PTSD was not present during active service and that the record contains no indication that the claimed condition has been present at any time since the filing of the service connection claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Petition to Reopen Claim for Service Connection for Epileptic Seizure Disorder Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran first claimed entitlement to service connection for epileptic seizures in March 2004 and a November 2004 rating decision denied the claim. Evidence considered in this rating decision includes the Veteran’s service treatment records and various private and VA clinical records. Service treatment records reflect that the Veteran demonstrated jerking movements of the arms, legs and trunk and was rushed to hospital in January 1963. The April 1963 treatment records indicate an impression given by the physician of a possible convulsive disorder of grand mal type, etiology unknown. The May 1964 treatment records acknowledge the Veteran’s single convulsion, the diagnosis provided was probable convulsive disorder. The February 1965 report of medical examination noted that the Veteran had a probable grand mal seizure in 1959, prior to service. In addition to this, the physician states that the Veteran took antiepileptic medication from August 1963 to July 1964. The therapy he was receiving was discontinued after a neurological exam revealed that the Veteran had normal neurological status. The physician found that the Veteran’s condition existed prior to service and did not render him disabling. The March 2002 consultation sheet indicates that the Veteran’s last seizure episode was in 1960. In the April 2002 private treatment records, the physician provided a provisional diagnosis of seizure disorder, stating that the Veteran had a history of seizures. Upon an April 2002 electroencephalography (EEG) report, the physician determined that the EEG is within normal limits for the awake and sleep states. The November 2013 VA treatment records also indicates that the Veteran has a history of seizures in the 1960s, but does not mention a current diagnosis for this condition. The AOJ found that the evidence showed that the epileptic seizure disorder existed prior to service and there was no evidence that the condition permanently worsened as a result of service. The Veteran was notified of the decision and his appellate rights in November 2004 but did not submit a timely notice of disagreement. Further, VA did not receive any new and material evidence within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, the November 2004 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). The evidence received since the November 2004 final rating decision includes VA treatment records, private treatment records, Social Security Administration records, and lay statements as well as an April 2014 Disability Benefits Questionnaire (DBQ) report. While the clinical records document complaints and diagnoses related to a variety of disabilities, they do not reflect the diagnosis or treatment for epileptic seizures. An April 2014 VA examiner found that the Veteran did not have a current diagnosis of seizure disorder and that he has never had such a diagnosis. The April 2014 VA examiner opined that the Veteran does not have a seizure disorder, that the Veteran took medication for one year and has had no medication for seizures for many years. In addition, the clinical records do not an etiology opinion as to the claimed epileptic seizure disorder. Additionally, while the Veteran and his representative have submitted additional statements regarding his claimed epileptic seizure disorder during the course of the appeal, such are duplicative of his contentions that were previously of record at the time of the November 2004 rating decision. Specifically, he simply continues to contend that his claimed disability is the result of his service. Therefore, the Board finds that the evidence received since the November 2004 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection. Consequently, new and material evidence has not been received to reopen such claim and the Veteran’s appeal must be denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found- a practice known as “staged” ratings. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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. 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). 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, or 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. When, as in this case, VA is rating a disability aggravated by active service, the rating is to reflect only the degree of disability over and above the degree existing at the time of entrance into active service. 38 C.F.R. § 4.22 (2016). It is necessary therefore, in all cases of this character to deduct from the degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. Id. Entitlement to a higher initial rating for bilateral hearing loss Appeal Period Prior to March 9, 2016 The Veteran was rated under 38 C.F.R. § 4.85, Diagnostic Code 6100, at a noncompensable rating prior to March 9, 2016. He contends that his loss of hearing has affected his working and social life, that he had to ask his supervisors to repeat the work instructions they give to him and that a higher rating is appropriate due to constant symptoms. The Veteran did have a hearing examination upon entry. In the April 1961 examination, the examiner diagnosed the Veteran with scarring and retraction. In the February 1965 separation exam, the examiner opined that the Veteran’s diagnosis of hypoacusis was mild and non-disabling. The May 2008 Board decision corroborates that the Veteran’s bilateral hearing loss increased in severity during his service. Therefore, a rating analysis based on consideration of aggravation of a pre-existing condition is warranted. Audiometric testing during the April 1961 evaluation revealed the following pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 10 30 40 LEFT 20 5 30 40 The April 1961 examiner noted scarring and retraction. Audiometric testing during the Veteran’s February 1965 separation examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 0 5 40 45 LEFT 5 0 35 35 The February 1965 examiner noted that the Veteran’s hypoacusis was mild and non-disabling. During the August 2010 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 65 70 60 LEFT 15 60 65 60 The Veteran’s speech recognition ability was 88 percent in each ear. Based on the numbers shown above, the Veteran’s pure tone threshold average for the right ear was 51.25 decibels, and his pure tone threshold for the left ear was 50 decibels. No exceptional pattern of hearing loss was shown. Applying 38 C.F.R. § 4.85, Table VI to the August 2010 audiological findings, the Veteran’s right ear hearing loss is a Level II impairment and his left ear hearing loss is a Level II impairment. Applying the criteria from Table VI to Table VII, a noncompensable rating is derived. VA regulations require deduction of the pre-existing baseline level of severity of the bilateral hearing loss from the current level of severity of bilateral hearing loss. See 38 C.F.R. § 4.22. While taking into consideration the Veteran's reported increased symptoms associated with his bilateral hearing loss, the Board finds that such disability likewise warrants a noncompensable rating prior to March 9, 2016, which is the schedular maximum for such disability under the Rating Schedule. As the Veteran's bilateral hearing loss was considered non-disabling upon separation of service and was noncompensable prior to March 9, 2016, a noncompensable rating for such disability is appropriate. Here, the Board finds the competent, clinical evidence does not include any audiological examination results demonstrating a compensable level of bilateral hearing loss. Thus, the Board finds that a compensable rating is not warranted prior to March 9, 2016 is not warranted for bilateral hearing loss. Appeal Period After March 9, 2016 Pursuant to the January 2016 remand, the Veteran underwent another VA audiological examination in March 2016. During the March 2016 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 65 75 70 LEFT 20 50 70 70 The Veteran’s speech recognition ability was 80 percent in the right ear and 68 percent in the left ear. Based on the numbers shown above, the Veteran’s pure tone threshold average for the right ear was 50 decibels, and his pure tone threshold for the left ear was 52.5 decibels. No exceptional pattern of hearing loss was shown. Applying 38 C.F.R. § 4.85, Table VI to the March 2016 audiological findings, the Veteran’s right ear hearing loss is a Level IV impairment and his left ear hearing loss is a Level V impairment. Applying the criteria from Table VI to Table VII, a 10 percent rating is derived. VA regulations require deduction of the pre-existing baseline level of severity of the bilateral hearing loss from the current level of severity of bilateral hearing loss. See 38 C.F.R. § 4.22. As the Veteran’s bilateral hearing loss was considered non-disabling upon separation of service and was considered 10 percent disabling after March 9, 2016 based on the audiological evaluation, a 10 percent rating for such period is appropriate. For the entire appeal period, the Board recognizes the Veteran’s statements that he struggled to hear his colleagues when they spoke to him and difficulty understanding people. However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometric results are obtained. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2). Thus, the Board must base its determination on the audiological evaluation results of record and is bound by law to apply VA’s Rating Schedule based on such results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1; see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran’s hearing loss has not approximated the criteria for a rating increase above that already assigned after March 9, 2016, at any point during the appeal. Although the Board sympathizes with the Veteran’s belief that he should be assigned a rating in excess of 10 percent, on the basis that his hearing loss has increased in severity, the Board’s decision is based on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet App. 345 (1992). Thus, the assignment of a compensable rating is not warranted. The VA examiners have noted the Veteran’s difficulty understanding conversations. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. Further, neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Id. (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). The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. In conclusion, the Board finds the noncompensable rating currently assigned for the Veteran’s bilateral hearing prior to March 9, 2016 and 10 percent thereafter, accurately reflects his disability, and a higher rating is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk