Citation Nr: 18157624 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-60 474 DATE: December 13, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. A rating in excess of 30 percent for hearing loss is denied. A total disability rating based upon individual unemployability due to the Veteran’s service-connected disabilities (TDIU) on a schedular basis is denied. REMANDED The issue of entitlement to a TDIU on an extraschedular basis is remanded for referral to the Director, Compensation Service. VETERAN’S CONTENTIONS The Veteran passed away during the pendency of this appeal, on January [redacted], 2017. The appellant, the Veteran’s daughter, has been found to be eligible as the substituted claimant in the Veteran’s appeal. Before his death, the Veteran’s hearing loss was rated as 30 percent disabling. He contended that a higher evaluation was warranted. See January 2016 statement; August 2016 notice of disagreement; November 2016 VA Form 9. The Veteran also contended that service connection was warranted for PTSD. See January 2016 statement; March 2016 claim. He asserted that a new examination was warranted as the doctor who examined him did not ask about his experience during the war and his guerilla service during World War II was a stressful event. See August 2016 notice of disagreement; November 2016 VA Form 9; January 2017 statement. He also reported that after training with the guerilla forces in July 1943, he was assigned post guard against the Japanese forces in an area of operation in Sual, Pangasinan. At that time, he encountered and killed Japanese soldiers. He also reported that he joined the US Army Liberation Forces’ operation, where he was involved in patrolling activities in Infantra, Pangasinan; guarding bridges; and reporting at garrison regularly. See May 2016 statement in support of claim for service connection for PTSD. The Veteran also contended that he was entitled to a TDIU as his hearing loss and PTSD disabilities prevented him from securing or following any substantially gainful occupation. He contended that he last worked full time in 1991 and became too disabled to work in 1995. His past occupation was farming and he had a seventh grade education with no additional training or education. See June 2016 Veteran’s application for increased compensation based on unemployability. FINDINGS OF FACT 1. During the appeal period, the Veteran did not have a diagnosis of PTSD. 2. During the appeal period, the Veteran’s hearing loss was, at worst, level VI in each ear. 3. The Veteran’s combined schedular rating was 40 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a rating in excess of 30 percent for hearing loss are not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.85, 4.86, DC 6100. 3. The criteria for entitlement to a TDIU on a schedular basis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a Special Philippine Scout from February 1946 to February 1949. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for PTSD is denied. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). There is no evidence of record showing a diagnosis of PTSD during the appeal period. Where there is no evidence of a current diagnosis of PTSD, there can be no valid claim for service connection for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Thus, the Board finds that the weight of the evidence is against a finding of service connection for PTSD. 2. Entitlement to a rating in excess of 30 percent for hearing loss is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. 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. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz [Hz], shown on a puretone audiometry test. 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone. 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b). The July 2016 VA examination showed the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 70 70 80 75 LEFT 75 70 75 75 75 The average pure tone threshold from 1000 to 4000 Hz was 74 decibels in the right ear and 74 in the left ear. The examiner determined the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate. Accordingly, the Veteran’s hearing impairment is evaluated under Table VIA, which uses only puretone thresholds to evaluate hearing impairment and shows level VI hearing loss in the right and left ears. When level VI hearing loss in the right ear is paired with his level VI hearing loss in the left ear, the Veteran’s hearing loss is evaluated as 30 percent disabling. See Table VII. The examiner noted that the Veteran’s hearing loss impacted ordinary conditions of daily life, including his ability to work. Specifically, the Veteran generally had difficulty hearing and understanding words during conversations and cupped his right ear to hear better. A January 2016 private treatment record showed the Veteran was diagnosed with presbycusis and advised to wear hearing aids. The Board sympathizes with the Veteran’s statements regarding the functional impact of his hearing loss on his daily life. However, the separate table under which the Veteran’s hearing loss is evaluated was included in the schedular rating criteria to accommodate the specific symptomatology, including the limited benefit from hearing aids that results from certain patterns of hearing loss, that the Veteran has described. For the foregoing reasons, the Board finds that the Veteran’s functional impairment due to hearing loss, to specifically include difficulty hearing in background or environmental noise, is a disability picture that is specifically and adequately contemplated by the current schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Based on the medical evidence during the appeal period, a disability rating in excess of 30 percent for bilateral hearing loss is not warranted. 3. Entitlement to TDIU on a schedular basis is denied. As noted above, the Veteran contended that he was prevented from securing or following any substantially gainful occupation due, in part, to his service-connected hearing loss. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned where the Veteran’s schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). At the time of his death, the Veteran was service connected for bilateral hearing loss, rated 30 percent disabling, and tinnitus, rated 10 percent disabling. The Veteran’s combined rating for his service-connected disabilities was 40 percent. Accordingly, TDIU on a schedular basis is not warranted as the Veteran did not meet the schedular requirements. REASONS FOR REMAND Although TDIU is not warranted on a schedular basis, TDIU may still be assigned on an extraschedular basis under 38 C.F.R. § 4.16(b). Where this is warranted, the claim must first be referred by the AOJ to the Director, Compensation Service for extraschedular consideration. The July 2016 VA examiner noted that the Veteran’s hearing loss impacted ordinary conditions of daily life, including ability to work. Specifically, the Veteran had difficulty hearing and understanding words during conversations and cupped his right ear to hear better. As there is evidence that the Veteran was unable to work due to his service-connected hearing loss, the issue must be remanded for referral to the Director, Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director, Compensation Service for extraschedular consideration. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel