Citation Nr: 18155384 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-15 607A DATE: December 4, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for a bilateral hearing loss disability is denied. REMANDED Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss was manifested by no more than Level VI hearing impairment in either ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from November 1969 to October 1971 and from January 1975 to January 1976. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In his April 2016 substantive appeal, the Veteran requested a hearing before the Board. In October 2018, the Veteran withdrew his hearing request. In March 2018, the Board remanded the claim for entitlement to an increased rating for coronary artery disease. The issue is still in remand status and will not be addressed by the Board at this time. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Legal Criteria Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2018). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2018); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2018); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2018); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10 (2018). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time 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). Entitlement to a disability rating in excess of 30 percent for a bilateral hearing loss disability. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2018). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2018). If the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation 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 considered separately. 38 C.F.R. § 4.86(b) (2018). At his January 2013 VA examination, the Veteran reported that he missed conversations in all listening environments. Audiometric testing revealed puretone air conduction thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 65 55 65 75 65 LEFT 50 60 65 80 64 The Veteran’s Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 66 percent in the right ear and 64 percent in the left ear. The Veteran was provided another audiological examination in March 2016. The Veteran again reported that he missed conversations in all environments. He denied any new or additional functional impact. Audiometric testing revealed puretone air conduction thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 65 55 65 75 65 LEFT 50 60 65 80 64 The speech discrimination score was 66 percent in the right ear and 64 percent in the left ear. Applying the results from both examinations to Table VI in 38 C.F.R. § 4.85 yields a finding of Level VI hearing loss in the right ear and Level VI hearing loss in the left ear. Id. However, the Board notes that the Veteran’s right ear demonstrates an exceptional pattern of hearing under 38 C.F.R. § 4.86(a) (2018). Applying 38 C.F.R. § 4.85, Table VIa to the audiological findings, the Veteran’s right ear hearing loss is a Level V impairment. As Table VI results in a higher numeral, the Board will use the numeral designation derived from Table VI for the Veteran’s right ear. 38 C.F.R. § 4.86(2018). Applying the criteria from Table VI to Table VII, a 30 percent rating is derived. VA treatment records during this period discussed the Veteran’s use of hearing aids, but do not contain puretone threshold findings. Upon review, the Board finds that the evidence does not include any audiological examination results demonstrating a higher level of bilateral hearing loss at any time during the pendency of the appeal. The Board finds the 30 percent disability rating assigned for the Veteran’s bilateral hearing loss accurately reflects his disability picture, and a higher disability rating is not appropriate. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and a disability rating in excess of 30 percent for bilateral hearing loss is denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 50 percent for PTSD is remanded. In addition to his service-connected PTSD, the medical records also include a diagnosis of cognitive disorder, NOS. The Veteran submitted an August 2012 private psychological evaluation, which suggested that his psychiatric symptoms were more severe than reflected in the VA examination reports and VA treatment records. However, the private report indicated that the Veteran had a global cognitive decline and reduced intellectual functioning in addition to his service-connected PTSD. VA treatment records noted that the Veteran’s global cognitive decline may be related to drug/alcohol abuse, cerebrovascular events, and a family history of Alzheimer’s. The VA examinations conducted during this period do not acknowledge or address the Veteran’s cognitive disorder. Therefore, the Board finds that a remand is required to determine whether the Veteran’s cognitive disorder is a manifestation of his service-connected PTSD and to determine which psychiatric symptoms are attributable to his service-connected PTSD and which are solely attributable to his cognitive disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). 2. Entitlement to a TDIU is remanded. The TDIU claim is intertwined with the increased rating claim remanded herein. Thus, the Board will defer its decision on the TDIU claim until the increased rating claim is resolved. The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected PTSD. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO must ensure that all information required for rating purposes is provided. The examiner must also address the following: (a.) State whether the Veteran’s cognitive disorder is a manifestation of his service-connected PTSD or is a separate and unrelated mental disorder. (b.) If the Veteran’s cognitive disorder is not related to his service-connected PTSD, the examiner must, to the extent possible, distinguish which psychiatric symptoms are attributable to the Veteran’s service-connected PTSD and which symptoms are attributable to any diagnosed cognitive disorder. The examiner should also, to the extent possible, distinguish the occupational and social impairment caused by the Veteran’s service-connected PTSD from that caused by any diagnosed cognitive disorder. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel