Citation Nr: 1807261	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-15 852A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an initial compensable disability rating for bilateral hearing loss.

2.  Entitlement to an initial disability rating in excess of 50 percent for the Veteran's posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	South Carolina Office of Veterans Affairs


ATTORNEY FOR THE BOARD

B. Isaacs, Associate Counsel




INTRODUCTION

The Veteran served on active duty from December 1965 to February 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran's PTSD claim was initially granted by the RO in the August 2013 rating decision and he was awarded a 30 percent rating.  Thereafter, the RO increased his PTSD rating to 50 percent in the March 2014 rating decision.  However, the increased rating matter remains in appellate status as the maximum PTSD rating has not been assigned for the entire period on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The hearing loss rating issue is addressed in the decision below.  The PTSD rating issue is addressed in the remand section following the decision.


FINDING OF FACT

The Veteran's bilateral hearing loss has been manifested by no worse than auditory acuity level I hearing in both ears.


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Legal Criteria

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C. § 1155.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.

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 required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test.  See 38 C.F.R. § 4.85.  The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100.

The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz).  To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85, DC 6100.

38 C.F.R. § 4.86 (a) provides that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 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.  The provisions of 38 C.F.R. § 4.86 (b) provide that when the pure tone 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 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 Roman numeral.  Each ear will be evaluated separately.

Analysis

The Veteran seeks a compensable rating for his service-connected bilateral hearing loss.  He was afforded VA examinations in January 2013, December 2013 and March 2015, with pure tone audiometry measurements and Maryland CNC test results.

Following his May 2012 claim, the January 2013 VA examination contained threshold measurements, in decibels as follows:





HERTZ
CNC

1000
2000
3000
4000
%
RIGHT
10
45
75
85
94
LEFT
15
20
60
85
96

The average pure tone threshold is rounded to 54 decibels in the right ear and 45 decibels in the left ear.  Speech discrimination using the Maryland CNC Test revealed scores of 94 percent in the right ear and 96 percent in the left ear.  The examiner noted the disability impacts the Veteran's daily life and ability to work as the he has difficulty hearing the television and has to strain to hear people talk sometimes.  These audiometric results correspond to level I for both ears under Table VI of 38 C.F.R. § 4.85.

The Veteran was afforded a December 2013 VA examination, which contained threshold measurements, in decibels as follows:


HERTZ
CNC

1000
2000
3000
4000
%
RIGHT
15
45
85
80
96
LEFT
10
20
70
80
94

The average pure tone threshold is rounded to 56 decibels in the right ear and 45 decibels in the left ear.  Speech discrimination using the Maryland CNC Test revealed scores of 96 percent in the right ear and 94 percent in the left ear.  The Veteran also reported difficulty hearing others when they speak to him.  These audiometric results are similar to the January 2013 results and also correspond to level I for both ears under Table VI of 38 C.F.R. § 4.85.

The Veteran was afforded another VA examination in March 2015 to determine the severity of his bilateral hearing loss.  Testing results included threshold measurements, in decibels as follows:



HERTZ
CNC

1000
2000
3000
4000
%
RIGHT
10
50
80
80
94
LEFT
10
20
70
75
96

The average pure tone threshold is 55 decibels in the right ear and rounded to 44 decibels in the left ear.  Speech discrimination using the Maryland CNC Test revealed scores of 94 percent in the right ear and 96 percent in the left ear.  With regard to functional impact, the Veteran similarly reported difficulty understanding what others are saying.  These audiometric results are also similar to the previous results and correspond to level I for both ears under Table VI of 38 C.F.R. § 4.85.

The Board notes VA treatment records showed the Veteran sought treatment for his hearing loss.  A November 2012 record indicated moderate to severe sensorineural hearing loss and suggested audiological management.

Based on the objective evidence, including three VA examinations, the preponderance of the evidence is against an increased rating for the Veteran's hearing loss.  There are no findings in the record which support more than the initially assigned zero percent (noncompensable) rating for service-connected bilateral hearing loss.

The Board is sympathetic to the Veteran's contentions and his reports of experiencing difficulty hearing others speak to him; however, applying the rating criteria to the audiological test results discussed above does not warrant a higher (compensable) rating.  The Board notes the rating criteria for evaluating hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in everyday environments, as these are precisely the sort of effects that VA's audiometric tests are designed to measure.

In sum, the preponderance of the evidence is against the claim for entitlement to an initial compensable rating for bilateral hearing loss; there is no doubt to be resolved; and a higher initial rating is not warranted.  See 38 U.S.C § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.


ORDER

An initial compensable rating for bilateral hearing loss is denied.


REMAND

The Board finds a remand is necessary for the PTSD claim to afford the Veteran a VA psychiatric examination to assess the severity of his disorder.

The Veteran was afforded a VA examination most recently in December 2013.  The examiner concluded the Veteran suffers 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.  He noted symptoms of diminished interest, detachment, angry outbursts, hypervigilance, exaggerated startle response and problems with concentration.  He further indicated symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbance of motivation and mood and difficulty in establishing and maintaining effective work and social relationships.

Thereafter, VA treatment records were submitted, including a December 2016 record which indicated the Veteran is becoming more depressed and that his temper can be severe at times.  A later December 2016 record noted symptoms of intrusive thoughts, nightmares, hypervigilance, hyperarousal, hyperstartle response, sleep disturbance, avoidance, isolation and increased irritability.  The December 2016 record indicated no history of suicide attempts or violence.  However, the Board notes a November 2012 record indicated the "Veteran acknowledged suicidal ideation, without suicidal intent which developed in the past few months but has been worsening."  Moreover, the January 2013 VA examiner noted the presence of suicidal ideation.

Significantly, suicidal ideation was noted, including in a November 2012 VA treatment record and by the January 2013 examiner.  Further, the most recent VA psychiatric examination was more than four years ago and there is a suggestion of worsening in the Veteran's PTSD symptoms since that time.  As such, a new VA psychiatric examination is warranted.

Accordingly, the issue is REMANDED for the following actions:

1.  Schedule the Veteran for a VA examination conducted by an appropriate medical professional to determine the current and recent severity of his PTSD.

The examiner should provide an opinion characterizing the current and recent severity of the Veteran's PTSD, including all symptomatology.  Any potential suicidal ideation should be addressed by the examiner, including its effect on the Veteran's overall psychiatric impairment level, as well as occupational and social functioning.

A complete rationale for all opinions expressed should be provided.

2.  Finally, readjudicate the claim remaining on appeal.  If the full benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs