Citation Nr: 18155555 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 18-49 557 DATE: December 4, 2018 ORDER Entitlement to an evaluation in excess of 20 percent for a bilateral hearing loss disability prior to July 27, 2017 is denied. Entitlement to an evaluation in excess of 90 percent for a bilateral hearing loss disability from July 27, 2017 is denied. Entitlement to an evaluation of 70 percent for Major Depressive Disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) from July 27, 2017 is granted. FINDINGS OF FACT 1. Prior to July 27, 2017, audiometric examination corresponds to a level III hearing loss for the right ear and a level IV hearing loss for the left ear. 2. From July 27, 2017, audiometric examination corresponds to a level X hearing loss for the right ear and a level XI hearing loss for the left ear. 3. Major Depressive Disorder is manifested by symptoms such as depressed mood; anxiety; suspiciousness; near continuous depression affecting the ability to function independently, appropriately and effectively; flattened affect; disturbances of motivation and mood; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; resulting in occupational and social impairment with deficiencies in most areas, but less than total occupational and social impairment. 4. Major Depressive Disorder renders the Veteran unable to engage in substantially gainful employment. 5. From July 27, 2017, the Veteran is in receipt of a total schedular rating on the basis of his service-connected Major Depressive Disorder and other service-connected disabilities involving different anatomical locations or bodily systems have a combined rating exceeding 60 percent. CONCLUSIONS OF LAW 1. Prior to July 27, 2017, the criteria for an evaluation in excess of 20 percent for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.85, Diagnostic Code 6100 (2017). 2. From July 27, 2017, the criteria for an evaluation in excess of 90 percent for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.85, Diagnostic Code 6100 (2017). 3. The criteria for an evaluation of 70 percent, but not higher, for Major Depressive Disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.125, 4.126, 4.130, Diagnostic Code 9434 (2017). 4. Entitlement to a TDIU is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). 5. Entitlement to SMC at the (s) rate is established for the period from July 27, 2017. 38 U.S.C. § 1114 (s) (2012); 38 C.F.R. § 3.350 (i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1953 to February 1955. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the 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. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss disability prior to July 27, 2017 In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). He is in receipt of a 20 percent evaluation for bilateral hearing loss prior to July 27, 2017, and a 90 percent evaluation thereafter. As will be explained below, the Board has determined that staged ratings are appropriate. See Hart, supra; see also Fenderson, supra. At a January 2017 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 25 75 80 70 63 84% LEFT 35 75 80 70 65 76% 2. 3. 4. There is an exceptional pattern of hearing loss in the right ear. Applying § 4.86(b) and § 4.85, Table VI, Table VIA and Table VII, to the above audiological findings, the Veteran has a numeric designation of V for his right ear and IV for his left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 10 percent evaluation. The preponderance of the evidence is against an evaluation in excess of 20 percent for a bilateral hearing loss disability prior to July 27, 2017. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. To the extent that the Veteran reports that his hearing acuity is worse than evaluated during this period, the Board has considered his statements. This evidence is competent. However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel reading to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. In reaching this finding, the Board notes the objective medical findings of the July 27, 2017 VA examination as detailed below. The Board notes that from a practical standpoint it is highly unlikely that the Veteran’s hearing loss increased in severity on the specific day of the July 2017 examination. However, there is no objective medical evidence of hearing impairment consistent with an evaluation in excess of 20 percent for the period prior to July 27, 2017.   2. Entitlement to an evaluation in excess of 90 percent for bilateral hearing loss disability from July 27, 2017 At a July 27, 2017 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 90 105+ 105+ 105+ Not given 36% LEFT 85 90 85 85 86 18% There is an exceptional pattern of hearing loss in both ears. Applying § 4.86(b) and § 4.85, Table VI, Table VIA and Table VII, to the above audiological findings, the Veteran has a numeric designation of X for his right ear and XI for his left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 90 percent evaluation. The preponderance of the evidence is against an evaluation in excess of 90 percent for a bilateral hearing loss disability from July 27, 2017. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. To the extent that the Veteran reports that his hearing acuity is worse than evaluated during this period, the Board has again considered his statements and they are competent. However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. See Lendenmann, supra. 3. Entitlement to an evaluation of 70 percent for Major Depressive Disorder He is in receipt of a 50 percent evaluation for Major Depressive Disorder (MDD) prior to July 29, 2017, and a 70 percent evaluation thereafter under Diagnostic Code 9434. The Board has determined that a uniform 70 percent evaluation is appropriate for the entire period on appeal. See Hart, supra; see also Fenderson, supra. Diagnostic Code 9434 pertains specifically to the primary diagnosed disability in the Veteran’s case (MDD). In any event, with the exception of eating disorders, all mental disorders including depressive disorder are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9434. The criteria for a 50 percent rating are as follows: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are as follows: Occupational and social impairment, with deficiencies in most areas, 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 a work-like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: 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 maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. The Board notes that the DSM-IV has been supplanted by an updated DSM-5, and VA’s regulations have been updated to reflect the changes in the manual. The DSM-5 and associated provisions are only applicable to claims pending at the AOJ after August 4, 2014, and not to any matter which had been certified to the Board prior to that date, even if subsequently remanded to the AOJ. 80 Fed. Reg. 14308 (March 19, 2105). This matter was certified to the Board after August 2014 and as a result, the updated regulations are applicable. At a January 2017 VA examination, the examiner concluded that the Veteran’s MDD’s symptoms resulted in occupational and social impairment with deficiencies in most areas. Reported symptoms were depressed mood; anxiety; suspiciousness; near continuous depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and intermittent inability to perform activities of daily living. At a July 2017 VA examination, the examiner again concluded that the Veteran’s MDD’s symptoms resulted in occupational and social impairment with deficiencies in most areas. Reported symptoms were depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. A review of the Veteran’s VA treatment records and private treatment records reveals manifestations of the Veteran’s MDD consistent with the VA examinations of record. Upon careful review of the evidence of record, the Board finds that the objective medical evidence and the lay statements regarding the Veteran’s symptomatology, more nearly approximates symptoms associated with a 70 percent disability rating for the entire period on appeal. The Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent for any period. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on occupational and social impairment, with deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. The Board has considered the VA treatment records, including all VA examination reports, and lay statements by the Veteran regarding the impact of his MDD on his occupational and social impairment. There has not been symptoms such as gross impairment of thought process, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation, or significant memory loss. The Board notes that intermittent inability to perform activities of daily living was noted at the January 2017 VA examination. However, the evidence shows that the Veteran’s level of disability more nearly approximates a 70 percent evaluation. The Veteran does not have total occupational and social impairment. He does have deficiencies in most areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran’s favor, the Board finds that he does not meet the requirements for an evaluation greater than the now assigned 70 percent schedular rating. To the extent that the Veteran has any of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 70 percent rating. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. In the Veteran’s June 2017 VA Form 21-8940 Application for a TDIU, he indicates that he last worked full time in 1992. A decision to grant TDIU is based upon the decision of the adjudicator. Here, the Board has reviewed the record specific to the Veteran’s service-connected MDD. This includes lay statements, VA examinations, and private medical records. Based upon the evidence in the file, the Veteran was unable to obtain and retain substantially gainful employment due entirely to his MDD. TDIU based upon his MDD is granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.   5. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) from July 27, 2017 The Board finds that entitlement to SMC under 38 U.S.C. § 1114 (s) is warranted for the period from July 27, 2017. As relevant to this case, special monthly compensation is payable if a veteran has a single service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i).   Here, as discussed above, TDIU has been granted due solely to the Veteran’s Major Depressive Disorder. Thus, a single service-connected disability has been rated as total. See 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Effective July 27, 2017, the Veteran’s other service-connected disabilities (hearing loss and tinnitus) involving anatomical segments or bodily systems different from the Veteran’s psychiatric system, command a combined rating that exceeds 60 percent. See 38 C.F.R. § 4.25. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel