Citation Nr: 18151418 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 15-26 434 DATE: November 19, 2018 ORDER An initial compensable rating for bilateral hearing loss is denied. An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from September 1959 to September 1962 and from February 1991 to March 1991. 2. Throughout the appeal period the Veteran had no worse than Level II hearing loss in the right ear and Level II hearing loss in the left ear. 3. Throughout the appeal period the Veteran’s PTSD symptoms have been manifested by subjective complaints of anxiety, sleep impairment, hypervigilance, and memory problems but with good family relationships; objective findings include being alert and oriented, exercising good judgment and insight, thoughts and speech were clear; and he was well groomed or neatly dressed. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100 (2018). 2. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Bilateral Hearing Loss Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38C.F.R. § 4.86 (a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. As the evidence described below shows, neither of the patterns are present in this case. A December 2010 VA examination found that at frequencies of 1000, 2000, 3000, and 4000 Hz, the Veteran’s puretone threshold for the right ear was 10, 15, 45, and 55 dB respectively, and for the left ear his puretone threshold was 10, 20, 50 and 55 dB respectively, for an average puretone threshold of 32 dB for the right ear and 34 dB for the left ear. The Maryland CNC speech discrimination test results were 96 percent for the right and 98 percent for the left ear. In addition to these findings, the Veteran reported difficulty hearing especially when the speaker is at a distance. A June 2014 VA examination found that at frequencies of 1000, 2000, 3000, and 4000 Hz, the puretone thresholds for the right ear were 35, 20, 65, and 60 dB respectively, and for the left ear his puretone thresholds were 20, 25, 65, and 55 dB respectively for an average puretone threshold of 45 dB for the right ear and 41 dB for the left ear. The Maryland CNC speech discrimination test results were 88 percent for the right ear and 86 percent for the left ear. The Veteran also indicated that he cannot hear if someone is calling him if his back is turned, and he gets complaints that he has the volume too loud on the radio and television. An April 2015 VA examination found that at frequencies of 1000, 2000, 3000, and 4000 Hz, the puretone thresholds for the right ear were 10, 25, 60, and 60 dB respectively, and for the left ear his puretone thresholds were 15, 25, 45, and 65 dB respectively for an average puretone threshold of 39 dB for the right ear and 38 dB for the left ear. The Maryland CNC speech discrimination test results were 36 percent for the right ear and 20 percent for the left ear, but were determined by the examiner to be not be appropriate for the Veteran due to language difficulties, cognitive problems, and inconsistent scores. The Veteran also indicated that he has to ask people to repeat themselves because he cannot hear them. The VA audiological examination reports noted above each describe the effects of the Veteran’s hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). With application of the December 2010 and June 2014 VA examination test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of II, and the left ear hearing loss, at its worst, is assigned a numeric designation of II. These test scores are consistent with the criteria for a noncompensable rating. With respect to the April 2015 VA examination, rating based on Table VIA is warranted, due to the examiner’s notation that the speech discrimination scores were not appropriate for this Veteran, making the combined use of the pure tone average and speech discrimination scores inappropriate. As such, using Table VIA to evaluate hearing acuity levels without speech discrimination scores show Level I hearing loss for the right ear, and Level I hearing loss for the left, consistent with a noncompensable rating. The Veteran contends that he should be rated at a higher evaluation because he is unable to hear and has difficulty hearing others. However, as noted above, the assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Although the Veteran’s experiences hearing difficulty, the valid audiometric test results do not meet the specific pure tone thresholds percentages required for a compensable rating for his bilateral hearing loss. Therefore, the Board finds that a compensable evaluation for the Veteran’s service-connected bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the appeal is denied. PTSD The Veteran’s PTSD is currently rated at 30 percent under DC 9411 of the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as an unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula for total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). During the pendency of the claim, the Veteran has had symptoms most generally consistent with a 30 percent rating, as well as the impairment indicated by the criteria for a 30 percent rating. Specifically, a December 2010 VA examination reflected that the effects of the Veteran’s PTSD have been mild. He was demanding and difficult with coworkers and quick to criticize their shortcomings, but was nevertheless well-liked. He retired after 47 years. He was married once for 26 years and was divorced. He has three children and five grandchildren. He was in contact with all of them. He currently lived with his girlfriend. She said he has no feelings; other than that, things are okay. He had some friends and has several interests and hobbies. On examination there was no impairment in thought processes or communication. His mood was euthymic and his affect was mildly constricted. Speech was normal in volume and rate. There was no evidence of psychotic symptoms. He denied suicidal and homicidal ideation. The diagnosis was PTSD, chronic, mild. A June 2014 VA examination revealed that the Veteran has the same family situation; he lived with his girlfriend and had three children and five grandchildren. He had some friends and a few hobbies. He did not go out very much. He worked part time and enjoyed his job; a lot of veterans worked there and he liked interacting with them. He had never seen a psychologist/psychiatrist and was not on any psychotropic medications. The Veteran’s symptoms include suspiciousness, sleep impairment, and mild memory loss, including forgetting names, directions, or recent events. On examination, he was neatly and casually dressed. He was fully alert and oriented, and maintained good eye contact. He was pleasant and cooperative, and his mood was euthymic. His affect was full. Thought processes were logical and goal-directed. Thought content was appropriate and there was no evidence of hallucinations or delusions. The rate, rhythm and volume of his speech was normal. His judgment was intact and he denied suicidal/homicidal ideation. The examiner opined that the Veteran’s PTSD was mild to moderate and his symptoms appeared to be the same since his last evaluation in December 2010. A May 2015 VA examination reflected that the Veteran reported an increase in anxiety. He reported the anxiety, suspiciousness, insomnia, sleep impairment, blunt affect, intrusive recollections of military trauma, restricted affect, avoidance of people and places that resemble any aspect of traumatic experiences, diminished interests, avoidance of persons, restricted range of affect, occasional irritability, impairment of memory and concentration, and significant difficulty maintaining non-familial social relationships. The examiner opined that the Veteran’s PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). It was noted that the Veteran was in a long term (10 years) romantic relationship with his girlfriend; they had been living together for four years. The relationship was described as “shaky.” She reportedly thought he was moody and did not talk enough. He indicated he hoped things got better soon because she was a significant source of support for him. He had regular contact with both of his brothers. He had had a part-time job for four years and had developed positive relationships with coworkers and the owner of the business. He enjoyed spending time with peers. He described an active social life, and reported good continued relationships with family members and male friends. He reported enjoying most social interactions. He attended as many family gatherings as he could, and he called up his friends to get together regularly. He had renewed his interests in playing Brazilian instruments and enjoys dancing. He completes errands in the community without significant distress. The Veteran endorsed suspiciousness, sleep impairment, anxiety, mild memory loss, and disturbances of motivation and mood. On examination, he was well-groomed and appropriately attired. He displayed appropriate affect and described his mood as not up or down. He had an open and cooperative attitude. His speech was normal. Thought content was also normal. Insight and judgment were intact. Concentration and memory skills were moderately impaired. He denied suicidal or homicidal ideation. After a review of the record, the Veteran’s PTSD most nearly approximates a 30 percent rating throughout the appeal period, and a higher rating is not warranted. In this regard, the medical evidence reflects that he complained of, and/or manifested symptoms such as anxiety, suspiciousness, concentration and memory problems, and sleep impairment. He has also reported hypervigilance and irritability. Nonetheless, despite the PTSD symptoms noted above, the medical evidence also reflects that he was generally functioning satisfactorily throughout the evaluation period. For example, all of the medical evidence reflects that he was alert and oriented, he exercised good judgment and insight, thoughts and speech were clear, and that he was well groomed or neatly dressed. Moreover, no clinician has described the Veteran’s occupational and social impairment as more severe than an occupational and social impairment occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). During all examinations, he reported good family relationships. While he was divorced, he was in a long term romantic relationship. Despite noting that his current relationship of 10 years was at times rocky, he indicated that his girlfriend was supportive. He also stated that he had a good relationship with his children, grandchildren, and brothers. With respect to social relationships, the Veteran stated that he had friends, and enjoyed an active social life. Further, he had a part time job he performed without difficulty, and reported good relationships with coworkers and the owner of the business where he worked. He also had hobbies and leisure activities that he enjoyed. As such, despite a notation of complaints of diminished interest in participation of daily activities and avoidance of persons, (at the May 2015 VA examination), the evidence shows only mild social impairment. Finally, the medical evidence shows that the Veteran consistently denied having any suicidal or homicidal ideation, hallucinations or delusions, or committing any acts of violence toward property or persons during the evaluation period. Further, he did not have panic attacks weekly or more often, did not have impaired judgment, impaired abstract thinking, or circumstantial, circumlocutory or stereotyped speech. Importantly, he had not sought treatment for his PTSD and was not on any psychotropic medication. In sum, the medical evidence shows that any impairment due to PTSD is compensated for by the current 30 percent rating. At no time during the evaluation period has the PTSD disability picture reflected occupational and social impairment with reduced reliability and productivity, deficiencies in most areas, or total social and occupational impairment, due to any of his PTSD symptoms. Therefore, PTSD most nearly approximates a 30 percent rating. As such, a higher rating is not warranted, and the appeal is denied. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Redman, Counsel