Citation Nr: 18160919 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-17 961 DATE: December 28, 2018 ORDER An initial compensable disability rating bilateral hearing loss is denied. An initial disability rating in excess of 10 percent for tinnitus is denied. An initial disability rating in excess of 70 percent for major depressive disorder with insomnia and adjustment disorder (herein depression) is denied. A total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has at worst Level II hearing in the right ear and Level II hearing in the left ear. 2. The Veteran is in receipt of the maximum schedular rating for tinnitus and the rating criteria contemplate his symptomatology. 3. Throughout the entire period on appeal, the Veteran’s depression is not manifested in total social and occupational impairment. 4. The Veteran’s service-connected disabilities do not preclude him from securing or following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85 (Tables VI, VIA and VII, Diagnostic Code 6100), 4.86. 2. The criteria for a schedular rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. 3. Throughout the entire period on appeal, the criteria for a disability rating in excess of 70 percent for depression are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130 Diagnostic Code 9434. 4. The criteria for entitlement to TDIU based on service-connected disabilities are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1973. In September 2017, the Veteran submitted a waiver of local jurisdiction in regard to evidence he submitted directly to the Board following the last adjudication of the claim by the RO. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. Entitlement to an initial compensable disability rating for bilateral hearing loss The Veteran contends that his service-connected bilateral hearing loss is more severe than the noncompensable rating currently assigned. The Board finds that the evidence does not support his claim for a higher initial rating. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 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. 38 C.F.R. § 4.86 (a). When the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 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 highest Roman numeral. 38 C.F.R. § 4.86 (b). The Veteran received two VA examinations during this claim. Upon examination in December 2015, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 35 30 21 LEFT 10 15 40 30 24 Speech audiometry revealed speech recognition ability of 88 percent in each ear. Upon VA examination in February 2017, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 10 40 35 23 LEFT 5 10 40 30 21 Speech audiometry revealed speech recognition ability of 88 percent in each ear. Regarding the functional impact of the Veteran’s bilateral hearing loss, the Veteran has reported difficulty distinguishing between words and that loud noises bother him. With respect to the right ear, the greatest pure tone threshold average was 23 decibels with a speech recognition score of 88 percent. This translates to Level II hearing impairment for the right ear under Table VI. With respect to the left ear, the greatest pure tone threshold average was 24 decibels with a speech recognition score of 88 percent. This translates to Level II hearing impairment under Table VI for the left ear. Level II hearing impairment in one ear and Level II hearing impairment in the other ear warrants a noncompensable or zero percent rating under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. Accordingly, an increased schedular rating is not warranted. There is no evidence of an exceptional pattern of hearing in this case. See 38 C.F.R. § 4.86. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his bilateral hearing loss disabilities are worse than the rating he currently receives. 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. 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); 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”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disabilities 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. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Finally, the Board notes that neither the Appellant nor her 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, 69-70 (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). Therefore, the Board finds that an initial compensable disability rating for bilateral hearing loss is not warranted and the claim is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for tinnitus The Veteran contends that his service-connected tinnitus is worse than the currently assigned 10 percent disability rating. The Board finds that a higher initial rating is not warranted. Diagnostic Code 6260 was revised, effective on June 13, 2003, to explicitly provide that only a single 10 percent evaluation is to be assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. The Veteran has been in receipt of a 10 percent rating for tinnitus at all times during the course of this appeal. There is no legal basis for awarding a higher schedular rating for tinnitus. Accordingly, entitlement to an increased schedular rating for tinnitus is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the Veteran’s tinnitus disability. The Veteran’s tinnitus disability is manifested by ringing in his ears and the rating criteria are based on such symptoms. The Board acknowledges the Veteran’s reports that his tinnitus initially incapacitated him and that he has lost weight as a result of his tinnitus, specifically 15 pounds in four days. However, there is no probative evidence that this in fact happened, that he is or was incapacitated due to tinnitus, or which suggests a clinical link between ringing in the ears and weight loss, especially such an extreme amount of weight loss given the short period of time. The Board finds these reports to not be credible. The Board further notes that while a May 2011 report from a private physician, Dr. K.K., notes the Veteran’s reports, the reports are not contemporaneous with the event or symptoms and are of limited probative value. Furthermore, the doctor did not provide an opinion that such a reported clinical link is accurate and there is no medical evidence supporting an etiological link between tinnitus and the reported weight loss/incapacitation. Finally, the Board finds that the Veteran is not competent to render an opinion as to whether any weight loss the Veteran experienced is etiologically due to his tinnitus, as such an opinion would require medical expertise and an understanding of the interaction between multiple body systems, which the Veteran has not been shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board concludes that the Veteran’s tinnitus disability and related symptomatology of ringing in the ears does not present such an unusual disability picture that the rating criteria are inadequate to evaluate the Veteran’s disabilities. Therefore, referral for consideration of extraschedular rating is not warranted. 3. Entitlement to an initial disability rating in excess of 70 percent for major depressive disability with insomnia and adjustment disorder (here depression) The Veteran contends that his depression is worse than the 70 percent disability rating assigned. The Board finds that a higher initial rating is not warranted. Depression, assigned a Diagnostic Code of 9434, is rated by applying the criteria found under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. Under 38 C.F.R. § 4.130, Diagnostic Code 9434, the next highest disability rating, a 100 percent rating, is warranted where there is 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. 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 worklike setting; inability to establish and maintain effective relationships.) Id. The symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. As the Veteran is currently rated 70 percent for depression throughout the period on appeal, the question now is whether the Veteran’s depression more nearly approximates total social and occupational impairment. Based on the evidence of record, the Board finds that throughout the claim period, the Veteran has not demonstrated total impairment. The Veteran has been diagnosed with and treated for depression throughout the appeal. He has endorsed, and lay statements from the Veteran have confirmed, symptoms of disturbed sleep, nightmares, hypervigilance, flashbacks, irritability, memory impairment, moodiness, anxiety, and social isolation, which have interfered with his functioning to a significant degree. However, the evidence demonstrates that his thought processes and communication were more often than not described as intact or adequate. While he sometimes described difficulty concentrating and thoughts of hopelessness or worthlessness, such as during a May 2014 and February 2017 VA examinations, his thought content and process have never been described as or found to be grossly impaired. The Veteran has never endorsed persistent delusions or hallucinations and specifically denied them during both VA examinations. While he reported impaired impulse control in the form unprovoked irritability, he has not described or been described by others as exhibiting grossly inappropriate behavior. Although the Veteran’s mood is frequently described as depressed or subdued and he reported suicidal thoughts during the May 2014 VA examination, he did not report any plans at the time, did not report such symptoms for the September 2013 DBQ, and he specifically denied suicidal ideation during the February 2017 VA examination. At no time during the claim has the Veteran demonstrated a persistent danger of hurting himself or others throughout the claim. While the 2014 VA examiner noted an intermittent inability to perform activities of daily living, the 2013 DBQ and 2017 VA examiner found him to be capable of performing activities of daily living, including maintenance of minimal personal hygiene and handling of finances. The evidence does not demonstrate that he was predominantly unable to perform activities of daily living during the claim. Regarding memory, the Veteran reported or was found to exhibit mild memory loss during the September 2013 DBQ and February 2017 VA examination, to include forgetting names, directions, and events. Despite this memory impairment, the evidence does not demonstrate that he has ever exhibited disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name, as indicative of total impairment. In terms of social functioning, throughout the claim the Veteran has had a good relationship with his wife, daughter, step-mother, and brother. Social Security Administration (SSA) records document that in February 2011, the Veteran’s reports of reading, going for walks outside, running errands, and attending support group, the VFW, and watch local youth sports on a regular basis and doing lunch/dinner and/or visiting with family three times per week. During the May 2014 VA examination, he reported that he maintained friendships, socialized about once per week, and traveled with his friends and wife, although he reported that he had “pulled back” on traveling and socializing at the 2017 VA examination. Regarding occupational impairment, the Veteran has reported that he retired from his job in government after 30 years when his tinnitus worsened. However, he then worked from January 2007 to May 2009 as a construction inspector. He has reported that he quit that job when his tinnitus became debilitating. The Veteran contends that his inability to work stems from his tinnitus symptoms, not that his mental health symptoms preclude gainful employment. The Board notes that none of the DBQ or VA examiners have concluded that the Veteran’s mental health symptoms result in total occupational impairment. In addition, an August 2011 SSA examiner concluded that the Veteran’s social and occupational limitations were due more to physical status than mental status. Furthermore, a February 2015 VA opinion, provided after reviewing the claims file, concluded that although the Veteran’s mental health symptoms include anxiety and sleep disturbances, his mental health disability does not render him unable to obtain and maintain gainful employment. The opinion noted that the Veteran denied concerns about his work performance, reliability, or ability to work with coworkers or subordinates over the course of his career and that he stopped worked, by his own reports, due to tinnitus. The opinion concluded that the Veteran’s decision to leave the workforce was due to non-psychiatric factors and that his depression would most likely contribute to a mild level of occupational impairment. Thus, the evidence does not support the contention that the Veteran’s depression results in total occupational impairment. The Board acknowledges that an October 2014 opinion from a private provider asserted that the Veteran’s depression, in part, contributes to his inability to obtain and maintain employment. However, a rationale was not provided and there is no indication that this provider was able to review the evidence of record. Therefore, that opinion is of little probative value and is outweighed by the opinion of the VA examiner, who reviewed the evidence of record and provided a complete rationale. The Board notes that both VA examiners found that the Veteran had difficulty establishing and maintaining effective social/work relationships. Further, the 2013 DBQ and both VA examiners found that the Veteran would have difficulty adapting to stressful circumstances, to include in a work-like setting. However, neither VA examiner nor the 2013 DBQ indicated that the Veteran was totally socially or occupationally impaired. The September 2013 VA examiner concluded that the Veteran’s depression resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation, indicative of a 30 percent disability rating. The May 2014 VA examiner concluded that depression resulted in occupational and social impairment with reduced reliability and productivity, indicative of a 50 percent disability rating. The February 2017 VA examiner concluded that the Veteran’s depression resulted in occupational and social impairment with deficiencies in most areas, indicative of a 70 percent disability rating. Based on the foregoing, the Board finds that although the Veteran has significant impairment in most areas of social and occupational functioning, he is not totally impaired as contemplated by the rating criteria. As noted above, he has consistently reported varying degrees of positive family and friend relations, despite his depression symptoms such as increased irritability and social isolation. Moreover, while he does not participate in as many social activities as he had in the past due, in part, to his depression symptoms, he has reported that he does still socialize with family and friends. Furthermore, the evidence does not demonstrate total occupational impairment due to depression. The Veteran’s judgment, insight, and thought process and content have been consistently found to be intact or unimpaired throughout the claim, and he has denied persistent suicidal and homicidal ideation and delusions or hallucinations. While the Veteran has reported memory impairment as well as unprovoked irritability, he has not reported nor does the medical evidence demonstrate gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, and/or the inability to obtain or maintain any friends, and familial relationships. As such, the Board finds that a 100 percent schedular disability rating for depression is not warranted at any time throughout this appeal. The Board notes that TDIU is addressed below. The Board notes that neither the Appellant nor her 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, 69-70 (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). 4. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) TDIU may be granted where the schedular rating is less than total and the service-connected disability precludes the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age. 38 C.F.R. §§ 3.341(a), 4.16(a). A “schedular TDIU” can be assigned if the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In determining entitlement to a TDIU, the central inquiry is, “whether the Veteran’s service-connected disability alone is of sufficient severity as to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s is service-connected for depression, rated as 70 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable. Thus, the Veteran meets the percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16(a). The remaining question is whether his service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. As explained above, the medical evidence demonstrates the Veteran was unemployed throughout the claim and consistently stated that he was unable to work due to his tinnitus symptoms. As noted above, he reported that he retired from his job in government after 30 years when his tinnitus worsened and then he worked from January 2007 to May 2009 as a construction inspector. He has reported that he quit that job when his tinnitus became debilitating. The Veteran contends that his inability to work stems primarily from his tinnitus symptoms. As noted above, none of the DBQ or VA examiners have concluded that the Veteran’s mental health symptoms result in total occupational impairment or that they render him unable to obtain and maintain gainful employment consistent with his education and experience. In addition, a February 2015 VA opinion, provided after reviewing the claims file, concluded that although the Veteran’s mental health symptoms include anxiety and sleep disturbances, his mental health disability does not render him unable to obtain and maintain gainful employment. The opinion noted that the Veteran denied concerns about his work performance, reliability, or ability to work with coworkers or subordinates over the course of his career and that he stopped worked, by his own reports, due to tinnitus. The opinion concluded that the Veteran’s decision to leave the workforce was due to non-psychiatric factors and that his depression would most likely contribute to a mild level of occupational impairment. Regarding tinnitus, a December 2015 VA examiner, who also had the benefit of reviewing the evidence of record, concluded that the Veteran’s tinnitus and hearing loss would not hinder his ability to work. The examiner stated that the Veteran is able to work with assistive devices such as hearing aids, tinnitus masker, tinnitus therapy, and sedentary work. The Board acknowledges that an October 2014 opinion from a private provider asserted that the Veteran’s tinnitus and depression render him unable to obtain and maintain employment. However, a rationale was not provided and there is no indication that this provider was able to review the evidence of record. Therefore, that opinion is of little probative value and is outweighed by the opinion of the VA examiners, who reviewed the evidence of record and provided a complete rationale. Based on the forgoing, the Board finds that TDIU is not warranted at any time during the appeal. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B., Counsel