Citation Nr: 21002466 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-42 186 DATE: January 13, 2021 ORDER Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to an initial compensable rating prior to December 26, 2018, and a rating in excess of 30 percent thereafter for bilateral hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran’s psychiatric disability did not manifest during active service and there is no indication that it is otherwise related to his active service. 2. Prior to December 26, 2018, the Veteran has demonstrated, at worst, Level II hearing acuity in the right ear and Level II in the left ear. 3. Since December 26, 2018, the Veteran has demonstrated, at worst, Level VII hearing acuity in the right ear and Level VI in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disability, to include PTSD, are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria for an initial compensable rating for bilateral hearing loss disability have not been met prior to December 26, 2018. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2019). 3. The criteria for an initial rating in excess of 30 percent for bilateral haring loss disability have not been met since December 26, 2018. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to June 1969 in the United States Navy. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In a May 2019 rating decision, the Veteran was assigned a 30 percent rating for his bilateral hearing loss disability, effective December 26, 2018. That does not constitute a complete grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. In June 2010, the Veteran submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) signed by him in favor of Disabled American Veterans. Then, in February 2016, the Veteran submitted a second (updated) VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) signed by him in favor of the American Legion. The updated VA Form 21-22 requires signatures from both the Veteran and his appointed representative. By a letter dated in February 2020, the Veteran was advised that the most recent VA Form 21-22 requires signatures from both the Veteran and his representative. He was advised that he should submit the updated form with his signature and that of his chosen representative or the Board would assume he wished to proceed pro se (represented by himself). Subsequent to the February 2020 correspondence, also in February 2020, the Veteran submitted a third VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) signed by him in favor of the American Legion. However, the American Legion did not sign the form. As such, the Board will proceed with the claim with the Veteran represented pro se. Service Connection – Psychiatric Disability The Veteran maintains that he has PTSD related to his active service. The Veteran’s service treatment records are unremarkable for any complaints, treatment, or diagnoses related to a psychiatric disability. At separation, clinical evaluation revealed that a psychiatric evaluation was normal. Of record is a December 2015 private treatment record from P.Y., a private chiropractor. At that time, P.Y. indicated that the Veteran had symptoms of PTSD which included but were not limited to insomnia, sleep deprivation, anxiety, anger, rage, isolation, hypervigilance, depression, and memory loss. The chiropractor’s impression was that the Veteran had PTSD related to his active service. No PTSD stressors were identified, and he did not provide any rationale for his opinion. The Board finds the December 2015 opinion from P.Y. inadequate. In this regard, the opinion was not provided by a mental health professional. Further, P.Y. did not provide a sufficient rationale as to why the Veteran had PTSD related to his active service. As the opinion is inadequate, it is assigned no probative value. In February 2016, the Veteran submitted a VA Form 21-0781, Statement in Support of PTSD. He reported that he served aboard the U.S.S. Piedmont which fired rounds at North Vietnam. He indicated that he was in fear of his life hanging in a bosun chain, and was afraid of falling into the water. Of record is a March 2016 private psychiatric evaluation report from Dr. W.A. In that report, Dr. W.A. diagnosed persistent depressive disorder (dysthymia), unspecified neurocognitive disorder, and alcohol use disorder. There is no indication from the report that the Veteran identified a specific stressor over and above the general statements he provided regarding service aboard the U.S.S. Piedmont in the waters off Vietnam as a bosun’s mate and “hanging off the side of the ship.” Dr. W.A. recommended that the Veteran seek out individual therapy geared toward treating his symptoms. VA outpatient treatment reports reflect a diagnosis of depressive disorder in September 2017. In this case, the Board finds the most probative evidence weighs against the claim. The Veteran’s service treatment records do not show any treatment for a psychiatric disability. At separation, clinical evaluation indicated that a psychiatric evaluation was normal. After service, the first documentation of the claimed disability was in 2015, over 46 years after active service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Although a private chiropractor diagnosed the Veteran with PTSD, no stressor was identified. The Veteran reported that his stressor was a fear of falling in the water while serving aboard the U.S.S. Piedmont. However, none of the other medical evidence of record which includes psychiatric diagnoses other than PTSD link the diagnosed disorders to service, including his reported fear of falling in the water. Therefore, remand for a VA medical examination/opinion is not necessary. 38 C.F.R. § 3.159(c). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a psychiatric disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – Bilateral Hearing Loss The Veteran asserts that he should have higher ratings for his bilateral hearing loss disability as his symptoms are worse than those contemplated by the currently assigned ratings. During an April 2016 VA audiology evaluation, the Veteran reported difficulty hearing his wife and difficulty hearing with background noise. Audiometric testing results at that time were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 35 50 65 LEFT 15 20 55 65 60 Speech recognition ability was measured at 86 percent in the right ear and 88 percent in the left ear. Using Table VI, the results of the April 2016 VA audiology evaluation equate to, at worst, Level II in the right ear and Level II in the left ear. Using Table VII, those results warrant a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. VA outpatient treatment reports reveal that the Veteran was referred for an audiology consultation in November 2015 when he was diagnosed with bilateral hearing loss and prescribed hearing aids. He was fitted for hearing aids in December 2015. At a May 2016 audiological evaluation, his hearing thresholds were reported to have remained stable since the November 2015 evaluation. During a December 2018 VA audiology evaluation, the Veteran reported difficulty distinguishing what is being said and trouble hearing and understanding conversation if there is background noise. Audiometric testing results at that time were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 45 70 75 LEFT 10 20 40 65 70 Speech recognition ability was measured at 54 percent in the right ear and 52 percent in the left ear. Using Table VI, the results of the December 2018 VA audiology evaluation equate to Level VII in the right ear and Level VI in the left ear. Using Table VII, those results warrant a 30 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The VA examiners clearly identified the effects that the Veteran’s bilateral hearing loss disability had on his daily activities in his own words. Therefore, the Board finds that the VA examination reports are in compliance with the requirements of Martinak. Prior to December 26, 2018, the Veteran’s bilateral hearing loss disability was shown to be Level II in the right ear and Level II in the left ear. Those results fall within the schedular criteria for a 0 percent rating. Therefore, the criteria for an initial compensable rating prior to December 26, 2018, have not been met. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019). Since December 26, 2018, the Veteran’s bilateral hearing loss disability was shown to be Level VII in the right ear and Level VI in the left ear. Those results fall within the schedular criteria for a 30 percent rating. Therefore, the criteria for an initial rating in excess of 30 percent since December 26, 2018, have not been met. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019). In addition, the Board has considered the evidence of record showing that the Veteran has difficulty hearing his wife and understanding speech, especially in areas of background noise. Although the Board finds his statements to be credible, it finds that those factors do not provide sufficient evidence on which to award any higher ratings for bilateral hearing loss. Disability ratings 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). In this case, as explained above, the numeric designations correlate to no greater than a noncompensable disability rating prior to December 26, 2018, and no rating greater than 30 percent since that date. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for a bilateral hearing loss disability is not warranted prior to December 26, 2018, and entitlement to an initial rating greater than 30 percent is not warranted since December 26, 2018. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.