Citation Nr: 1807987 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-04 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss. 3. Entitlement to a rating in excess of 10 percent for a skin disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). 5. Entitlement to an earlier effective date for additional dependency benefits. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2010, November 2012, and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in various cities. In December 2017, the Veteran testified at a Board hearing, without representation, before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. In March 2017, prior to the hearing, the Veteran's attorney submitted a motion to withdraw as his representative for all matters before the Board. VA accepted the withdrawal and notified the Veteran on August 30, 2017. He was also properly notified by his former attorney in February and March 2017. He has not appointed a new representative. The RO granted entitlement to additional dependency benefits, effective April 20, 2016, and notified the Veteran on January 10, 2017. He filed a timely notice of disagreement in February 2017, but a Statement of the Case has not been issued yet. The Board thus accepts limited jurisdiction over this issue for the sole purpose of remanding it for a Statement of the Case along with information about the process for perfecting an appeal, if the Veteran so desires. See Manlincon v. West, 12 Vet. App. 238 (1999). The issues of entitlement to a higher rating for the skin disability, a TDIU, and an earlier effective date for additional dependency benefits are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PTSD has been manifested by mild memory impairment and occasional impairment due to suspiciousness and anger, but otherwise generally satisfactory functioning. 2. For the entire period on appeal, the Veteran had, at worst, Level V hearing acuity in the right ear and level V hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD have not been met during any period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a rating in excess of 20 percent rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied. Except as discussed herein, the Veteran has not raised issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist). The Board notes that VA medical records and examinations were associated with the claims file after the September 2014 Statement of the Case for his PTSD and bilateral hearing loss claims. These medical records, however, were irrelevant and did not discuss the criteria necessary for assessing the severity of his disabilities. Moreover, the medical examinations assessed unrelated disorders. Accordingly, a remand for a Supplemental Statement of the Case is not warranted for these two issues. Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The pertinent regulations were provided to the Veteran in the Supplemental Statement of the Case and will not be repeated here. Higher Initial Rating for PTSD The Veteran testified that he is entitled to a higher initial rating because he is short-tempered, has memory issues, has few friends, and does not engage in any hobbies or social activities. He also testified that he does not have difficulty sleeping and he does not experience nightmares. During the hearing, the Veteran testified that he did not receive mental health treatment previously or presently. VA records confirm this and generally reflect a normal mental status throughout the period on appeal. The Veteran was afforded an initial PTSD examination in March 2014 to assess the severity of his PTSD. He reported that he had a good relationship with his family and children, but that he had few friends and engaged in no leisure activities or hobbies. In terms of symptoms caused by his PTSD, the examiner only noted suspiciousness and mild memory loss. He concluded that the Veteran's PTSD was not severe enough either to interfere with occupational and social functioning or to require continuous medication. In consideration of the lay and medical evidence, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent for the entire period on appeal. His PTSD is predominantly manifested by symptoms that warrant a 30 percent rating, including mild memory loss and occasional mood impairment. Importantly, there is no evidence of impaired judgment, thought, or communication, difficulty understanding complex commands, chronic sleep impairment, or panic attacks. While the Veteran has credibly testified that he has few friends, the Board notes that he maintains good relationships with his family. The Board thus finds that this particular symptom, in consideration of his entire disability picture, does not warrant a higher rating. The Board further finds that a new examination is not warranted. While almost four years have passed since his last examination, the medical records do not show, and he has not alleged, that his symptoms have worsened. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that a remand was not required solely due to the passage of time since the most recent VA examination); VAOPGCPREC 11-95 (1995). Accordingly, a rating in excess of 30 percent for the entire period on appeal is denied. To the extent he contends his PTSD prevents him from obtaining or maintaining gainful employment, that contention is contemplated by the claim for entitlement to a TDIU. Higher Initial for Bilateral Hearing Loss The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss because he has difficulty hearing and his disability requires the constant use of hearing aids. The Veteran underwent a VA audiological examination in March 2014 to assist in assessing the severity of his hearing loss. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 70 60 65 65 LEFT 40 65 60 65 70 His average speech thresholds were 65 decibels in the right ear and 65 decibels in the left ear. Speech discrimination testing, conducted using the Maryland CNC word list, revealed a speech recognition ability of 84 percent in the right ear and 68 percent in the left ear. Pursuant to Table VI, the right ear's hearing impairment warrants a 'III' numeric designation and the left ear's hearing impairment warrants a 'V' numeric designation. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. After entering the Veteran's left ear (as the poorer ear) and right ear numeric designations into Table VII, the Veteran's results show that he is entitled to a 10 percent rating. Id. at Table VII. Because these results demonstrate an exceptional pattern of hearing impairment in the right ear, the Board also considered whether utilizing Table VIA would produce more favorable results. See 38 C.F.R. § 4.86(b). Under Table VIA, his right ear's hearing impairment warrants a 'V' numeric designation. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VIA. After entering his left ear and right ear numeric designations into Table VII, he is entitled to a 20 percent rating. Id. at Table VII. In light of the lay and medical evidence, the Board finds that a rating in excess of 20 percent is not warranted. Although the Veteran is competent to report symptoms such as difficulty hearing, he is not competent to report that his hearing acuity warrants a higher evaluation under VA's tables for rating hearing loss disabilities. Disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Veteran has not alleged any unusual or exceptional symptoms such that referral for extraschedular consideration is needed. The Board further finds that a new examination is not warranted. While almost four years have passed since his last examination, the medical records do not show, and he has not alleged, that his symptoms have worsened. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that a remand was not required solely due to the passage of time since the most recent VA examination); VAOPGCPREC 11-95 (1995). Accordingly, a rating in excess of 20 percent for the entire period on appeal is denied. To the extent he contends his hearing loss prevents him from obtaining or maintaining gainful employment, that contention is contemplated by the claim for entitlement to a TDIU. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 30 percent for the service-connected PTSD is denied. An initial rating in excess of 20 percent for service-connected bilateral hearing loss is denied. REMAND The Veteran testified that he received dermatological treatment shortly before the Board hearing. These medical records must be obtained on remand. As the issue is being remanded and his last skin examination took place in October 2012, the Veteran should be afforded a VA examination to assess the current severity of his skin disability. Regarding the Veteran's claim for a TDIU, a remand is necessary for several reasons. First, numerous relevant records have been associated with the claims file since the last Supplemental Statement of the Case, including rating decisions granting service connection for hearing loss, PTSD, and prostate cancer, as well as VA medical records, SSA records, and VA examinations. These must be considered by the RO prior to a Board decision. Second, while the RO provided the Veteran with VA Form 21-8940, he never returned it. He should be provided with another opportunity to complete this form. Therefore, upon remand, the Veteran should be issued a notice letter detailing the requirements for establishing entitlement to a TDIU, as well as a VA Form 21-8940. Regarding the issue of an earlier effective date for additional dependency benefits, the Veteran filed a timely notice of disagreement in February 2017, but a Statement of the Case has not been issued yet. This issue must therefore be remanded pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VA Form 21-8940 and appropriate notice about the evidence needed to establish entitlement to a TDIU. If returned, conduct all appropriate development necessary to corroborate the Veteran's employment history. 2. Obtain the Veteran's treatment records from the Deerfield Beach CBOC from March 2010 to the present and the Miami VAMC from January 2017 to the present. 3. Schedule the Veteran for a VA skin conditions examination to assess the current severity of his service-connected skin disability. 4. After completion of the above, the issues on appeal should be readjudicated. If the benefits sought are not granted, the Veteran and his representative, if any, should be provided with a Supplemental Statement of the Case and afforded the appropriate time period within which to respond thereto. 5. The AOJ should issue a Statement of the Case addressing the Veteran's claim for an earlier effective date for additional dependency benefits. The AOJ should also remind the Veteran that he must file a timely VA Form 9 to perfect his appeal and advise him of the time limit for submitting a substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs