Citation Nr: 19106974 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-22 225A DATE: January 29, 2019 ORDER Entitlement to an increased rating for bilateral hearing loss is denied. The application to reopen the claim for entitlement to service connection for a psychiatric disorder to include PTSD and major depressive disorder (MDD) is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include PTSD and MDD, is remanded. FINDINGS OF FACT 1. The Veteran has had at most level I hearing in both ears. 2. In an April 2014 rating decision, the Regional Office (RO) denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder claimed as PTSD. 3. New and material evidence was received regarding the claim for entitlement to service connection for an acquired psychiatric disorder claimed as PTSD within the one year appeal period, and in May 2014 the RO reviewed this evidence and confirmed the continued denial of entitlement for service connection for an acquired psychiatric disorder claimed as PTSD. 4. The Veteran did not timely appeal the RO’s April 2014 decision as amended by the May 2014 decision confirming and continuing the denial of entitlement to service connection for an acquired psychiatric disorder claimed as PTSD. 5. New and material evidence was received regarding the claim for entitlement to service connection for an acquired psychiatric disorder claimed as PTSD within the one year appeal period, and in July 2014 the RO expanded the claim to include MDD and reviewed the evidence and confirmed the continued denial of entitlement for service connection for an acquired psychiatric disorder claimed as PTSD and MDD. 6. The Veteran did not timely appeal the RO’s April 2014 decision as amended by the July 2014 decision confirming and continuing the denial of entitlement to service connection for an acquired psychiatric disorder claimed as PTSD and MDD. 7. Evidence received since the April 2014 denial and its subsequent confirmation and continuances relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for an acquired psychiatric disability claimed as PTSD and MDD and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for an increased rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The April 2014 decision as amended by the May 2014 and July 2014 decisions is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156 (2018). 3. Evidence received since the April 2014 decision is new and material and the claim for entitlement to service connection for an acquired physiatric disorder claimed as PTSD and MDD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to December 1982. These matters come before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO), which denied the Veteran’s claim for increased rating for service-connected bilateral hearing loss and continued the zero percent disabling rating. The Veteran timely appealed the increased rating for service-connected bilateral hearing loss. In the March 2017 rating decision, the RO also denied the reopening of a claim for entitlement to service connection for an acquired psychiatric disorder claimed as PTSD and MDD. Subsequently, in an April 2017 Statement of the Case, the RO confirmed the prior denial of the claim for entitlement to service connection for PTSD and MDD reasoning that the Veteran had not provided any additional or new evidence in support of the claim. Regardless of the RO’s precise disposition of the matter, however, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Entitlement to an increased rating for service-connected hearing loss is denied. Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where, as here, entitlement to compensation has already 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 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here, as explained below, the uniform zero rating is proper. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Considering the pertinent evidence in light of the applicable rating criteria and considerations, as well as for the following reasons, an increased rating for bilateral hearing loss is not warranted at any time since the effective date of service connection. During an July 2013 VA audiological examination, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 35 30 30 LEFT 25 30 45 35 34 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left. Using Table VI, the July 2013 VA examination revealed level I hearing in both ears. Combining level I hearing for both ears according to Table VII yields a rating of zero percent. During a March 2017 VA audiological examination, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 35 55 45 43 LEFT 30 30 55 45 40 Speech audiometry revealed speech recognition ability of 98 percent in both ears. Using Table VI, the March 2017 VA examination revealed level I hearing in both ears. Combining level I hearing for both ears according to Table VII yields a rating of zero percent. The Veteran has expressed his belief that the severity of his hearing loss warrants a higher rating. He is competent to report the symptoms of his hearing disability and the Board has no legitimate basis to challenge the credibility of his lay contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, ratings for hearing loss are determined by a mechanical application of the VA rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The lay statements of record do not show that the Veteran has met the specific pure tone thresholds and/or speech discrimination percentages required for a compensable rating for bilateral hearing loss at any time since the effective date of service connection. Moreover, VA audiological examinations must dictate objective test results and fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Here, the March 2017 examiner indicated that the hearing loss affected his ability to watch television under average volume and therefore satisfies Martinak. The Board further finds that, in conjunction with the appeal for an increased rating for bilateral hearing loss, neither the Veteran nor his representative have raised any other related issues, and no other such issues have been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). As the preponderance of the evidence is against the Veteran’s claim for entitlement to an increased rating for service-connected hearing loss, the benefit of the doubt is not otherwise for application and the appeal for a higher initial rating for bilateral hearing must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. The application to reopen entitlement to service connection for an acquired psychiatric disorder claimed as PTSD and MDD is granted. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In April 2014, the RO denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder claimed as PTSD. The April 2014 decision was confirmed and continued in May 2014 and again in August 2014. In August 2014, the RO expanded to acquired psychiatric disorder claim to include PTSD and MDD in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). The Veteran did not appeal these rating decisions either. Therefore, the modified April 2014 denial was final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. The RO denied the claim in April 2014, noting that the evidence did not show a current diagnosed disability. The subsequent RO decisions on the claim found no link between the Veteran’s diagnosed MDD and his military service. Since the April 2014 denial, the Veteran submitted an affidavit in May 2018 that addressed the nexus between his disability and his service. In the May 2018 affidavit the Veteran described in detail the events that occurred during his service including the death of a child and indicated that his peers dismissed his psychiatric concerns and that his isolating work position in service led him to suicidal thoughts. This affidavit is new evidence that relates to the basis for the prior denial and denial continuances, and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for entitlement to service connection for an acquired psychiatric disorder claimed as PTSD and MDD is warranted. 3. Entitlement to service connection for a psychiatric disorder to include MDD is remanded. The Veteran has been diagnosed with MDD. The March 2013 VA examiner indicated the Veteran is receiving SSDI due to his MDD. However, these documents are not part of the record. There are outstanding and relevant Social Security Administration (SSA) disability and/or supplemental security income (SSI) records. Therefore, a remand is required to allow VA to request these potentially relevant records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (“The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records”). In addition, the July 2013 and May 2014 VA examinations indicated that the Veteran’s current MDD may be related to the death of the Veteran’s child that occurred during his military service. The July 2013 VA examiner indicated that the Veteran’s MDD was due to the death of a child or children during service, but that, although “These deaths occurred while the Veteran was in service. . . the events are not to the best of my knowledge, able to be service connected.” The May 2014 VA examiner quoted this language. However, this opinion is inadequate for two reasons. First, the examiner appears to have been rendering a legal opinion with regard to service connection rather than a medical opinion with regard to whether the MDD was related to or had its onset in service. The examiner’s opinion is therefore beyond the scope of what is appropriate. See 38 C.F.R. § 3.100(a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to VA “adjudicative personnel”). In addition, while service connection is warranted for disability due to disease or injury in service, it is also warranted where the disability is incurred coincident with service and does not necessarily require the causal agent to be in proximity to the Veteran. 38 C.F.R. § 3.303(a) (“service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces”). In other words, if a psychiatric disorder first manifested during service even though not caused by something that occurred in service, service connection may still be warranted. Consequently, the opinion is inadequate and a new examination and opinion is warranted. This matter is REMANDED for the following action: 1. Obtain outstanding and relevant Social Security Administration (SSA) disability and/or supplemental security income (SSI) records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current physiatric disability. If the Veteran is diagnosed with PTSD, is it related to an in-service stressor? If the Veteran is diagnosed with any other psychiatric disorder, is it at least as likely as not related to service, to include the death of the Veteran’s child during this time period, or did such disorder have its onset during service. The examiner is advised that the Veteran is competent to report symptoms, treatment, injuries, and events, and his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk