Citation Nr: 18152754 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-43 656 DATE: November 27, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to an earlier effective date for the grant of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Since the filing of the claim, the Veteran’s bilateral auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz have not been 40 decibels or greater; nor have his auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz been 26 decibels or greater; nor have his Maryland CNC Test speech recognition scores been less than 94 percent. 2. Since January 31, 2012, the Veteran did not have symptoms of PTSD causing total occupational and social impairment. 3. The Veteran was not service-connected for any disability prior January 31, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3.385. 2. The criteria for entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) have not been met. 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to an effective date prior to January 31, 2012 for a TDIU have not been met. 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably with active duty service in the United States Marine Corps from January 1989 through January 1993. As it pertains to the claim of entitlement to service connection for bilateral hearing loss, the appeal at hand arises from a notice of disagreement filed from an October 2014 rating decision; a previous July 2009 rating decision denied this claim but did not become final; as such, the Board has jurisdiction over the merits of this claim. 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks service connection for bilateral hearing loss. For any claim for service connection to prevail, there must be a current disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.309. When considering whether lay evidence may be competent to establish the presence of a current disability, the Board must determine, on a case by case basis, whether the claimed disability is the type for which lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). A disability due to impaired hearing, for the purposes of applying the laws administered by VA, exists only when auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or the Maryland CNC Test speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. A September 2008 VA treatment note documented the Veteran complained of hearing loss and tinnitus, with a 1993 onset. The Veteran denied any ear pain or dizziness, and described his symptoms as being a constant buzzing or ringing sound in both ears, more noticeable in the left. (The Veteran has been granted service connection for tinnitus). The Veteran was afforded a VA examination in June 2009. The VA examiner conducted air, bone, speech, and tympanometry tests. The VA examination measured pure tone thresholds bilaterally in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz; the examination report lists measurements at each relevant frequency, but no measurement in either ear at any frequency exceeded 25 decibels. The Veteran’s Maryland CNC speech recognition scores were recorded as 98 percent, right ear; 96 percent, left ear. The VA examiner noted that the Veteran clinically normal hearing, bilaterally, with no hearing loss present. A December 2013 private treatment note from an ENT office noted that the Veteran had normal hearing in the right ear between 250-3000 Hertz, with a slight sensorineural hearing loss between 4000-8000 Hertz. The pure tone results for the left ear were noted to reveal normal hearing between 250-6000 Hertz with a slight hearing loss at 8000 Hertz. Speech recognition scores were noted to be 100 percent bilaterally; tympanograms within normal limits bilaterally; otoacoustic emissions were reduced/absent above 3000 Hertz bilaterally. This treatment note did not record pure tone thresholds. The most probative evidence of record is the June 2009 VA examination that listed the specific measurements for the relevant auditory thresholds. The June 2009 VA examination does not show that the Veteran has that the Veteran has a hearing loss disability, as defined under 38 C.F.R. § 3.385, as there is no evidence that the Veteran’s auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are not 40 decibels or greater; nor are his auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 26 decibels or greater; nor are his Maryland CNC Test speech recognition scores less than 94 percent. Also considered was the December 2013 private treatment note; however, this treatment record does not have significant probative value as it does not provide specific pure tone measurements. Further, in referencing “slight hearing loss,” the clinician does not define the term, and references findings applicable to frequencies above 4000 Hertz, which are not relevant when considering if there is a current “disability” as defined by 38 C.F.R. § 3.385. The private treatment note is not afforded significant weight in deciding this claim. Lay statements of record regarding hearing loss are not considered competent evidence to substantiate a diagnosis of hearing loss, and are given no weight. Reexamination was considered as an alternative to ruling on the appeal. However, there is no evidence showing the Veteran’s condition has worsened so as to warrant reexamination. The December 2013 private treatment note could reflect the same (or better) status as the June 2009 VA examination, given that it was measuring different frequencies. Indeed, the speech recognition scores were noted to be 100 percent: higher than recorded in the June 2009 VA examination. Moreover, the Veteran does not otherwise contend his hearing has worsened, and has not submitted any argument on this appeal. Remand for reexamination is not warranted under the circumstances. The Veteran’s claim of entitlement to service connection for bilateral hearing loss fails for lack of a current disability as defined by 38 C.F.R. § 3.385. The preponderance of the evidence is against the claim, and the benefit-of-doubt rule is inapplicable. 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. The Veteran seeks an initial evaluation in excess of 70 percent for his service-connected PTSD. Service-connection was granted from January 31, 2012; the effective date of service connection is not presently before the Board. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s PTSD is currently evaluated at 70 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is to be rated under the General Rating Formula. The only possible rating higher than 70 percent on the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, is a 100 percent rating. To warrant a 100 percent rating, the symptoms of the service-connected mental disorder must cause total occupational and social impairment, and the symptoms causing such impairment must be such 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 maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Veteran had several VA examinations during the period on appeal. A May 2012 VA examination noted a diagnosis of PTSD, with no other mental disorder diagnosis. The Veteran described symptoms of depressed mood, anxiety, suspiciousness, near continuous anxiety and depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, impairment of short-term memory causing him to forget to complete tasks, flattened affect, impaired judgment, disturbances of motivation and mood, inability to establish and maintain effective social and work relationships, past severe suicidal ideation, but he denied current suicidal plan or intent, or impaired impulse control with periods of unprovoked irritability. The VA examiner noted that as a result of the Veteran’s severe symptoms of PTSD, he was unable to continue functioning in his job as a police officer, and noted a past episode which was in essence a suicide attempt due to his symptomatology. The examiner determined that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. A January 2013 VA examination noted a diagnosis of PTSD and antisocial personality disorder (“APD”) (the Veteran is not service connected for the latter). The Veteran was noted to have clearly articulated his point of view, to not show confusion, to have appropriate eye contact, and to be dressed appropriately. He was noted to have driven there by himself, and to have described cooking, feeding, bathing, and playing with his son, and driving him to and from school. He had joint custody of his son from his second marriage, to not be in any meaningful relationship (he was married twice previously). The VA examiner noted that the symptoms attributable to PTSD were recurrent and distressing recollections of the events involving his trauma, avoidance of thoughts activities, or feelings associated with the trauma, and that he feels estranged from others. He was also noted to have difficulty remaining asleep and to be hypervigilant. The Veteran was noted to have several symptoms attributable to his antisocial personality disorder, including reckless disregard for the safety of self or others, irritability and aggressiveness, and lack of remorse. The VA examiner noted that the PTSD and APD both involve outbursts of anger, and indicated that the Veteran’s anger outbursts were exacerbated by PTSD. The VA examiner opined that the Veteran’s level of occupational and social impairment with regards to all mental diagnoses was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The VA examiner noted that his occupational functioning and social impairment are far less impacted by his PTSD than they are by his APD. The Veteran was noted to have presented as angry and verbally aggressive with the admission that he was difficult to get along with socially. The Veteran’s constant use of profane language was noted to likely interfere with his ability to keep a job involving interactions with the public but less likely than not to keep him from working other jobs away from the public, with the exception of perhaps dealing with an authority figure such as a supervisor. A July 2015 VA examination noted review of the claims file, noted a diagnosis of PTSD, and recorded the Veteran reported that symptoms have remained the same if not worse from the January 2013 VA examination. He was noted to have visited with a mental health counselor in the past and was in psychiatric treatment. He reported he was not hospitalized for psychiatric treatment since his previous evaluation. He was prescribed paroxetine 40mg and Tramadol 50mg. He was being seen by a psychiatrist and a psychologist. The Veteran described his current emotional health as “poor.” He endorsed frequent moods including depression, anxiety, stress, and excessive anger. Current symptomatology includes sad feelings, loss of motivation, anger outbursts, problems with sleep, weight gain, feeling hopeless, negative thoughts, frequent sense of discouragement, memory problems, feeling restless, irritability, increased muscle tension, concentration problems, easily distracted, nightmares, flashbacks, traumatic memories, avoiding these memories, hypervigilance, decreased sexual interest, and low self-esteem. He denied having any panic attacks. He denied he has had thoughts of suicide and he has never attempted. He denied any serious consideration of suicide or homicide at the time of this examination. He denied experiencing any hallucinations or delusions. The VA examiner opined the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, but did not approximate the Veteran’s PTSD as causing total occupational and social impairment. There are also a variety of treatment notes, buddy statements, and medical records associated with the file, which do not conflict with the VA examinations on any significant point, and generally do not appear as comprehensive as the VA examinations. The three VA examinations of record detailed above are considered the most probative evidence of record. It is acknowledged that the Veteran’s mental disorder may have caused him to be unemployable: indeed, he has been granted a TDIU below. However, the schedular criteria for a 100 percent rating of PTSD requires more than unemployability. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. It does not appear that, during the appeal period, the Veteran is totally occupationally and socially impaired, nor does it appear that his PTSD symptoms rise to any equivalent level to 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 maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Though the symptoms described above are severe, the 70 percent rating in and of itself is a reflection of that fact. Further, no VA examiner has concluded that the Veteran’s symptoms have resulted in total occupational and social impairment. Accordingly, rating the Veteran’s PTSD in excess of 70 percent at any point since January 31, 2012 is not warranted, and his request for an increase is denied. 3. Entitlement to an earlier effective date for the grant of a total disability rating based on individual unemployability (TDIU) is denied. The Veteran has been granted a TDIU since January 31, 2012. He requests an earlier effective date to the TDIU. A TDIU may be granted when service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16. The record reflects that the Veteran was not service connected for any disabilities prior to January 31, 2012, which is current effective date for the Veteran’s TDIU grant. As such, he did not meet the basic criteria for a TDIU for any period prior to January 31, 2012, and his request for an earlier effective date is denied. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel