Citation Nr: 20056502 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 18-33 979A DATE: August 26, 2020 ORDER A compensable rating for bilateral hearing loss is denied. REMANDED The claim for service connection for post-traumatic stress disorder is remanded. The claim for a spinal disability is remanded. The claim for a total disability based on individual unemployability (TDIU) rating is remanded. FINDING OF FACT The evidence of record throughout the rating period on appeal reflects that the Veteran’s average hearing impairment was no higher than Level I in his right ear and Level II in his left ear, without any evidence of exceptional hearing patterns. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from October 1979 to October 1983. In a January 2017 rating decision, the Regional Office granted service connection for bilateral hearing loss, effectuated from October 2015, the date of initial claim, and rated as noncompensable. The Veteran disagreed with the assigned rating and appealed to the Board of Veterans’ Appeals (Board). In February 2020, the Veteran testified at the Travel Board’s hearing. A transcript, which is of record, reflects that the Veteran was granted 60 days to submit any additional evidence. As reflected in his Notice of Disagreement (received in January 2017), the Veteran points out that he was told that he is a candidate for hearing aids and was “exposed to loud engine noise for 4 years!” While acknowledging the Veteran’s statements, the Board notes that an existence of his hearing loss is not at issue in this appeal and the assigned rating is based on neither a potential use of hearing aid nor a duration of past noise exposure. Instead, the assigned rating percentage is based exclusively on the objectively measurable audiometric data and derived from rather a mechanical application of the rating schedule to the Veteran’s audiometric data testing scores during the rating period on appeal, as follows. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the schedule, ratings range from noncompensable to 100 percent based on the average hearing impairment as measured by controlled speech discrimination (Maryland CNC) in conjunction with the average hearing acuity threshold levels in each ear, as measured on a puretone audiometry test in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The schedule establishes 11 successive auditory acuity levels with Roman numeral designations from Level I, for essentially minimal hearing loss, through Level XI for profound deafness. 38 C.F.R. § 4.85. The Levels are determined by applying Table VI to the specific audiometric data. In Table VI, the vertical lines represent nine categories of the percentage of discrimination based on the Maryland CNC controlled speech discrimination test scores. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test data. The numeric designation (Levels I through XI) is determined for each ear by intersecting the vertical row apposite for the percentage of discrimination and the horizontal column apposite for the puretone decibel loss. Then, Table VII is used to determine the particular rating percentage by combining the numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage rating to be assigned is located at the point where the row and column intersect. In December 2016, VA evaluated the severity levels of the Veteran’s hearing impairment. The audiology report reflects an average hearing acuity in the right ear at 41 dB and in the left ear at 44 dB, with a word recognition scores of 100 percent bilaterally. Applying Table VI to these figures yields Level I hearing loss in each ear. Under Table VII, an intersection of I and I yields a noncompensable rating. In February 2020, the Veteran submitted a private evaluation report from Clarity Hearing reflecting the average hearing acuity thresholds in the right ear at 49 dB with a word recognition score of 94 percent and in the left ear at 53 dB with a word recognition score of 88 percent. Applying Table VI to these figures yields Level I hearing loss in the right ear and Level II hearing loss in the left ear. Per Table VII, an intersection of I and II yields also a noncompensable rating. In reaching this conclusion, the Board has also considered that the VA regulations provide for alternative ratings based on the exceptional patterns of hearing, that is, when the puretone threshold at each of the 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. However, neither criterion has been met in this case at any time. As such, the legal criteria to warrant a compensable rating have not been met. Of note, the February 2020 audiology report does show an objective worsening of the Veteran’s hearing acuity, but such severity is still not at the level required for a compensable rating to be assigned. The assigned percentages represent very wide ranges in hearing acuity rather than any single fixed test score. This is why in many hearing-loss cases, just like this, the hearing acuity may objectively worsen and significantly so, while the rating percentage will still remain the same. Of further note, while recognizing how debilitating hearing loss may be, the Board has no authority to assign ratings on equitable basis and is ultimately bound by the legal criteria for rating disabilities, as passed by Congress and implemented by VA. See 38 U.S.C. § 7104(c); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In this case, as discussed, the fundamental legal criteria for a compensable rating have not been met at this time. Should the Veteran’s hearing impairment become progressively worse in the future, he may at any time file a claim for an increased rating. Meanwhile, a compensable rating for bilateral hearing loss is denied. REASONS FOR REMAND In a January 2017 rating decision, the RO denied the Veteran’s claims for service connection for PTSD and for a spinal disability, which he appealed to the Board. In seeking service connection for these disabilities, the Veteran maintains that he incurred them due to service. The February 2020 hearing transcript reflects the Veteran’s statements under oath, describing in vivid detail the circumstances of a training military exercise aboard USS Dubuque where he witnessed a 27-ton amphibious assault vehicle (LVTP-7) killing two marines right in front of his eyes. This incident is corroborated by a detailed witness statement (received from Sergeant D.B. in January 2020). Given that the amount of details provided under oath and the supporting evidence corroborating the Veteran’s recount of the incident, the Board finds that the in-service stressor is credible. 38 C.F.R. § 3.304(f). The Veteran then states that he recalls this incident every day, while feeling a lot of guilt, having trouble concentrating during the day when thinking about what has had happened. He also has trouble sleeping at night and at times has nightmares about the incident. These statements are consistent with his VA treatment records reflecting reported anxiety, anger issues, mood swings, and use of sleeping aids. A March 2020 VA mental health counseling report reflects a clinical impression of other symptoms of stress or trauma related disorder with the endorsed PTSD symptomatology, to include hypervigilance, avoidance, anger issues, and trouble sleeping. Based on a positive PTSD screening, a VA mental health counselor recommended further evaluation. As such, the clinical evidence of current symptomatology that may be etiologically related to the credible recount of an in-service stressor, and a recommendation by a VA mental health professional for further evaluation, trigger a VA’s duty to provide a medical examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran then testified to slipping and falling on a wet deck during a heavy storm aboard USS Peoria and sustaining a back injury. This event is corroborated by a January 2020 statement of a fellow marine, R.A., who witnessed the event. The Veteran explained that he was examined by a corpsman who gave him Advil, but he asserts that his back has continued to hurt ever since, although he initially attributed the recurrent associated symptoms to his physically arduous military duties. After service, he has reported experiencing flare-ups 3-4 times per year, which he self-treated with over-the-counter medications until his condition has significantly worsened around 2004-2005 and he sought medical attention. Subsequently, he was diagnosed with a degenerative disk disease, spondylosis, sciatica, neck and left arm problems, and underwent laminectomy and several orthopedic surgeries. This evidence suggests the possibility of an onset of the Veteran’s spine disability during service. However, given the medical complexity of the Veteran’s musculoskeletal and neurological disabilities attenuated from service by many years, the medical opinion (which has not been obtained) is necessary to decide this claim. Id. The transcript further reflects the Veteran’s statement that he was last employed in 2014-2015 and discontinued his employment, in part, due to his spine disability. The record also reflects that the Veteran is currently unemployed and receives Social Security disability benefits. As such, the Board finds that the record has reasonably raised an issue of a TDIU rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Upon considering that the issue of TDIU is inextricably intertwined with the Veteran’s service-connection claim for spine disability, the Board further finds the claim must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an evaluation of his mental health. The examiner is asked to determine whether the Veteran has any acquired psychiatric disorder, to include PTSD, under the DSM-5 diagnostic criteria and whether it is at least as likely as not (meaning probability of 50 percent or greater) that the current symptomatology, however diagnosed, is etiologically related to an in-service stressor, to include witnessing death of a marine aboard USS Dubuque. Why or why not? 2. Schedule the Veteran for an evaluation of the nature and etiology of his spine disability and any associated conditions. The examiner is asked to answer the following questions: a) Is it at least as likely as not that the Veteran’s current spine disability and/or associated conditions were caused or otherwise are etiologically related to his service, to include his back injury sustained aboard USS Peoria? Why or why not? b) Is it at least as likely as not that the Veteran’s current spine disability and/or associated conditions were aggravated (made worse) by his back injury sustained service? Why or why not? In addressing the onset and etiology, the examiner is reminded that continuity of symptomatology does not require the evidence of continuity of professional medical care and is asked to consider and discuss the Veteran’s lay statements concerning his reported initial back injury during service and continuity of symptomatology since then, which he is competent to report. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.