Citation Nr: 18152192 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-41 415 DATE: November 21, 2018 ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss disability is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran’s hearing loss has been manifested by hearing impairment no worse than auditory level V in the right ear, and level IV in the left ear. 2. The RO assigned the maximum schedular rating for tinnitus throughout the appeal period. 3. The Veteran’s PTSD has not caused occupational and social impairment with deficiencies in most areas of his life. CONCLUSIONS OF LAW 1. The criteria for an increased rating for bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, 4.86a, Diagnostic Code (DC) 6100 (2018). 2. The criteria for an increased rating for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, DC 6260 (2018). 3. The criteria for an increased rating for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, DC 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. “Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Further, “[w]here 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. In rating hearing loss, disability ratings are derived from the mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Disability ratings of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for normal hearing acuity, through level XI for profound deafness. 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 pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone 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. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When determining the appropriate disability evaluation to assign, the Board’s “primary consideration” is the Veteran’s symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). 1. Entitlement to an increased rating for bilateral hearing loss and tinnitus The Veteran is presently service connected for bilateral hearing loss and tinnitus, each rated at 10 percent disabling. He contends he is entitled to a higher rating for both. The Veteran underwent a VA examination to address his hearing loss in December 2014. He reported difficulty hearing conversations when noise is present in a room. On audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 50 50 50 50 LEFT 50 45 45 40 45 Speech recognition scores were 68 percent in both ears. When utilizing table VI, the Veteran exhibits level V hearing impairment in the right ear and level IV hearing impairment in the left ear. Applying these results to Table VII, a 10 percent rating is for application. Therefore, based on the evidence of record, a rating in excess of 10 percent is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his hearing loss is worse than the rating he currently receives. Here, while the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s hearing loss 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. See Lendenmann, supra. The medical findings (as provided in the examination report) directly addresses the criteria under which this disability is evaluated. Based on the foregoing, the Board has determined that a rating in excess of 10 percent for bilateral hearing loss not warranted, and the appeal is denied. Tinnitus Regarding the claim for an increased disability rating for tinnitus, the Veteran is presently service connected for tinnitus with a ten percent disability rating. Tinnitus is evaluated under Diagnostic Code 6260. Under the applicable rating criteria, a 10 percent rating is assigned for recurrent tinnitus. No higher rating is available under the Diagnostic Code. 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran is already in receipt of the maximum schedular rating, and the Board cannot assign a higher rating based on the schedular criteria, as a higher schedular rating does not exist. 2. Entitlement to an increased rating for PTSD The Veteran contends he is entitled to a disability rating higher than 50 percent for PTSD. The Veteran’s service-connected psychiatric disability has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides ratings of 10, 30, 50, 70, and 100 percent. Inasmuch as a 50 percent rating has been assigned during the appeal period, the Board will limit its analysis to whether a higher rating (i.e., 70 or 100) has been warranted. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking 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 unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Board finds that a rating in excess of 50 percent for his service connected PTSD is not warranted. During the Veteran’s December 2014 VA examination pertaining to his psychiatric disorder, the Veteran reported that he experiences brief periods of both anxiety and depression. He expressed that his brief episodes of depression typically occur when he thinks about the activities he no longer engages in and his episodes of depression typically last a few hours at a time. He further indicated he experiences anxiety when he is around other people and begins to worry that they will ask him something about his military service. The Veteran reported he currently attends mental health-related appointments at the VA approximately one time every 3 months. Upon examination, the Veteran presented as alert and oriented with no overt signs of psychosis. The examiner noted that his affect was bright and no behavioral abnormalities were found. Additionally, the Veteran’s thoughts were logical and goal directed, while his speech was clear and intelligible. The examiner concluded that his overall presentation was devoid of any delusional content and reality testing was intact. The VA examiner noted that the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances in mood and motivation, difficulty in adapting to stressful circumstances, including work or a worklike setting. However, he did not show occupational or social impairment with deficiencies in most areas as required for a 70 percent disability rating. Specifically, he did not show 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, or neglect of personal appearance and hygiene. Indeed, his medical records from 2015 and 2016 indicate that the Veteran was doing fairly well as he reported decreased anxiety, depression, and insomnia. He reported that he continues to do his usual activities, goes out to breakfast on occasion and has gone out to dinner. Further, his treating physician noted upon examination that the Veteran was logical, goal directed, and denied delusions, psychosis, or suicidal/homicidal ideations. Although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may affect social and occupational impairment. Here, the evidence has not shown occupational and social impairment with deficiencies in most areas nor total occupational or social impairment. Specifically, at his December 2014 VA examination, he reported being married for the past 42 years. He described having a “so, so” relationship with his wife at the present time and indicated that he has a good relationship with his 3 children. The Veteran also stated he enjoys watching sports on television in his free time and while he reported he does” not have very many buddies,” he typically talks to any friends he has over the telephone. As such, there is no other indications of occupational and social impairment that would warrant a rating in excess of his current 50 percent rating. The Board has also considered the statements that his disability is worse than evaluated. Specifically, he indicated that he does not like to be in large crowds of people and experiences anxiety around other people. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his acquired psychiatric disability, according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of his disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent insight in conjunction with the evaluations. The medical findings (as provided in the examination report) directly address the criteria under which the disability is evaluated. (Continued on the next page)   Thus, taking into consideration the evidence of record, the Board finds that a disability rating in excess of 50 percent for PTSD is denied. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel