Citation Nr: 18161138 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-08 622 DATE: December 28, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. REMAND Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss has been manifested by no more than Level I hearing impairment. 2. The Veteran’s left ear hearing loss has been manifested by no more than Level I hearing impairment. 3. The Veteran is currently receiving the maximum schedular rating for his service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). 2. The criteria to an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.87, DC 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from October 1974 until his honorable discharge in October 1976. The Veteran was awarded the National Defense Service Medal and served as a service and supply handler. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). 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). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran is requesting an initial compensable rating for bilateral hearing loss. See November 2014 Notice of Disagreement. Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations. 38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss are based on the organic impairment of hearing acuity as measured by controlled speech discrimination tests, in conjunction with the average hearing threshold as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. Evaluations range from noncompensable to 100 percent. The Rating Schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. The horizontal rows in Table VI (found in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row that corresponds with the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. The percentage evaluation is found in Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row that corresponds with the numeric designation for the ear having the better hearing acuity with the vertical column corresponding with the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). On the authorized audiological evaluation in February 2014, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 25 55 LEFT 15 15 10 45 55 The puretone threshold average was 26.25 in the right ear and 31.25 in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 100 percent in both the right and left ears. Under Table VI of 38 C.F.R. § 4.85, the scores for each ear correlate to a Roman numeral I. A noncompensable rating is warranted under DC 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. On the authorized audiological evaluation in January 2017, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 30 60 LEFT 10 10 5 45 55 The puretone threshold average was 28.75 in both the right and left ears. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 96 percent in both the right and left ears. Under Table VI of 38 C.F.R. § 4.85, the scores for each ear correlate to a Roman numeral I. A noncompensable rating is warranted under DC 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. The preponderance of the evidence demonstrates that the Veteran’s bilateral hearing loss does not meet the criteria for a compensable rating under DC 6100 during the period on appeal. The Veteran has characterized the functional impact of his hearing loss as difficulty hearing people behind him, especially in the presence of background noise and asking people to repeat themselves. See January 2017 VA Examination, p. 5. These functional impairments and related difficulties are factors contemplated by the regulations and schedular rating criteria. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, an increased rating is not warranted. 2. Entitlement to an initial disability rating in excess of 10 percent for tinnitus The Veteran is requesting an initial compensation rating in excess of 10 percent for tinnitus. See November 2014 Notice of Disagreement. However, he is currently in receipt of the maximum, 10-percent schedular rating, under DC 6260. See 38 C.F.R. § 4.87. DC 6260 provides that only a single 10-percent rating is 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, DC 6260, Note (2); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Because the Veteran’s current evaluation is the maximum rating assignable under 38 C.F.R. § 4.87, he is not entitled to a higher schedular rating for his tinnitus. As such, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Furthermore, the Veteran has not contended, and the evidence does not suggest, that he has experienced tinnitus symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 266 Fed. Appx. 1004 (Fed. Cir. 2007)). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record on which to decide the Veteran’s claim. Specifically, remand is required to obtain private treatment records and the Veteran’s personnel records from the Department of Veterans Affairs, and for an updated VA examination. 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD The Veteran is requesting an initial disability rating in excess of 50 percent for PTSD. See November 2014 Notice of Disagreement. Remand is required regarding the claim for PTSD to attempt to obtain private treatment records regarding psychiatric treatment. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). The VA emergency room (ER) treatment records for August 2016 note that the Veteran presented to the VA ER because he ran out of medication for anxiety control that he normally obtains from a private physician. See VA Treatment Records, p. 12. There are no private treatment records in the file, nor documented attempts to obtain private treatment records. An attempt to secure these records should be made on remand. Additionally, the Veteran provided a portion of his personnel record and EEO investigation, however the complete record was never requested nor obtained. The complete record may provide further insight as to the severity of the Veteran’s occupational impairment. Lastly, the Board finds that an updated medical opinion would be of assistance in determining the current severity of the Veteran’s PTSD. Since his last examination in 2016, the Veteran has provided evidence of occupational difficulties that resulted in his discharge from work. As there is evidence that the Veteran’s condition may have worsened, a new examination and opinion is required. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all sources listed by the Veteran which are not already in the file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must be given an opportunity to respond. 2. Take all necessary steps to obtain the Veteran’s complete personnel record from the Department of Veterans Affairs, including but not limited to the completed EEO investigation file concerning complaint number 200J-0695-2017101798, which was filed on March 28, 2017. 3. After the above directives have been completed, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected PTSD. The examiner must be provided access to the electronic claims file, and he or she must indicate review of the claims file in the examination report. All necessary testing must be completed and all symptoms of PTSD must be documented. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL