Citation Nr: 21002783 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 19-24 120 DATE: January 14, 2021 ORDER Prior to October 8, 2020, a rating greater than 30 percent for bilateral hearing loss is denied. After October 8, 2020, a rating greater than 90 percent for bilateral hearing loss is denied. Prior to October 8, 2020, a rating greater than 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for a neck disorder is remanded. Service connection for a lower back disorder is remanded. Service connection for a bilateral knee disorder is remanded. Service connection for a left hip disorder is remanded. Service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Service connection for tremors is remanded. FINDINGS OF FACT 1. Prior to October 8, 2020, the Veteran’s bilateral hearing loss was manifested by no worse than Level V impairment for the right ear and Level VII for the left ear. 2. After October 8, 2020, the Veteran’s bilateral hearing loss was manifested by no worse than Level XI impairment for the right ear and Level X for the left ear. 3. Prior to October 8, 2020, the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity, due to such symptoms as chronic mood disturbances, sleep impairment, and difficulty adapting to stressful circumstances. CONCLUSIONS OF LAW 1. Prior to October 8, 2020, the criteria for a rating greater than 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, DC 6100. 2. After October 8, 2020, the criteria for a rating greater than 90 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, DC 6100. 3. Prior to October 8, 2020, the criteria for a rating greater than 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1952 to July 1954, to include foreign service in Korea. For his meritorious service, the Veteran was awarded (among other decorations) the Korean Service Medal and the Combat Infantryman Badge. These appeals were remanded by the Board in March 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At that time, the Board also took jurisdiction over a total disability rating based on individual employability (TDIU) claim and remanded the matter for further development. In an October 2020 rating decision, the RO granted a TDIU for the period prior to October 8, 2020 (which represents the entire period on appeal). The RO also granted increased ratings for the Veteran’s hearing loss and PTSD, resulting in his receiving a 100 percent rating with special monthly compensation from October 8, 2020 forward. For that latter period, as the Veteran is in receipt of a 100 percent rating with SMC, the issue of entitlement to a TDIU is moot. For the earlier period, the evidence does not reflect that a single disability of the Veteran’s warrants consideration for a TDIU and, even if so granted, that the Veteran would meet the criteria for SMC for that period. Accordingly, the issue of entitlement to a TDIU will not be further discussed. In November 2020, VA received notice from R.B. of his intent to withdraw as the Veteran’s representative. That same month, VA notified both the former representative and the Veteran that the withdrawal had been accepted. The Veteran has not subsequently communicated his belief that R.B. remains as his representative, or appointed a replacement therefor. Thus, he proceeds in this appeal pro se. Increased Ratings The Veteran continues to pursue higher ratings for his service-connected hearing loss and PTSD. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Bilateral Hearing Loss As to the Veteran’s bilateral hearing loss, he is currently in receipt of a 30 percent rating prior to October 8, 2020, and a 90 percent rating thereafter. He has been properly rated in accordance with DC 6100 during both periods on appeal. With hearing loss disabilities, evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85, the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85, by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 dB 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. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Further, when the puretone threshold is 30 decibels or less at 1,000 Hz and 70 dB or more at 2,000 Hz, 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. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral. Id. Prior to October 8, 2020 The Veteran underwent one VA examination prior to October 8, 2020. In September 2017, audiological testing yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 70 105 115 LEFT 35 50 80 100 105 As calculated by the examiner, puretone threshold averages were 82.50 percent for the right ear and 83.75 for the left ear. These results were deemed valid for rating purposes. Additionally, the Veteran registered a speech recognition score of 76 percent for the right ear and 72 percent in the left ear at that time. These results are properly rated under Table VI, such that hearing impairment levels correspond to Level V for the right ear and Level VII for the left ear. Intersecting Levels V and VII under Table VII result in a 30 percent disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). The remaining evidence, including private treatment records, does not contain additional test results for the Board’s consideration. Accordingly, the Veteran’s hearing loss prior to October 8, 2020, is commensurate with the criteria for a 30 percent rating, as currently assigned. Therefore, the appeal seeking a higher rating prior to October 8, 2020, must be denied. After October 8, 2020 The Veteran underwent an audiological evaluation on October 8, 2020. The results of that examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 70 105 110+ LEFT 35 50 85 105 110 As calculated by the examiner, puretone threshold averages were 80 percent for the right ear and 87.5 for the left ear. These results were deemed valid for rating purposes. Additionally, the Veteran registered a speech recognition score of 32 percent for the right ear and 40 percent in the left ear at that time. These results are properly rated under Table VI, such that the hearing impairment levels correspond to Level XI for the right ear and Level X for the left ear. Intersecting Levels XI and X under Table VII result in a 90 percent disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). Again, the remaining evidence is silent for additional audiological testing conducted during the period on appeal. Thus, as per the above audiometric results, the Veteran does not qualify for a rating greater than 90 percent for his bilateral hearing loss after October 8, 2020, and the appeal is hereby denied. With respect to both periods on appeal, the Board has considered the Veteran’s testimony regarding the nature and severity of his bilateral hearing loss and his related contention that higher ratings are warranted. However, he does not possess the requisite training and expertise to competently assess his symptoms against the applicable rating criteria. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, greater probative value is afforded to the medical evidence of record, which directly supports the determinations offered herein. Moreover, the assignment of disability ratings for hearing impairment is derived from the application of a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, this formula does not yield higher ratings for the Veteran’s levels of hearing loss during the periods on appeal. Notably, the record is silent for such a unique disability picture or additional symptomatology as to warrant higher ratings on this basis. See generally private treatment records (reporting that hearing is grossly intact). Thus, although sympathetic to the Veteran’s reports, the Board finds that entitlement to greater ratings has not been demonstrated in the present case and the appeals are hereby denied. PTSD As an initial matter, the Veteran was awarded a 100 percent rating for his PTSD, effective October 8, 2020, during the pendency of this appeal. See October 2020 rating decision. This is the maximum rating available under DC 9411 and the Veteran has not expressed dissatisfaction with this rating as assigned. Accordingly, the Board has recharacterized the matter on appeal as reflected herein. Thus, the Veteran is now pursuing a rating greater than 50 percent for his PTSD prior to October 8, 2020. Per DC 9411, a 70 percent rating is warranted upon evidence of the following: • Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); and inability to establish and maintain effective relationships. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). In considering the frequency, severity, and duration of this Veteran’s symptoms, a rating greater than 50 percent is not warranted for his psychiatric disability prior to October 8, 2020. He underwent one VA contract examination during the period on appeal. In September 2017, his primary symptoms were identified as follows: anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including in a work-like setting. This recordation corresponds with the Veteran’s testimony as to the nature of his symptoms, which included chronic nightmares and anger outbursts. Despite these symptoms, the Veteran maintained a relationship with his spouse of several decades and reported a “close net” of social support. However, his physical conditions had negatively impacted his social life in recent years. The Veteran was alert and cooperative during his evaluation, during which he denied suicidal or homicidal ideations, intents, or plans. Upon such a disability picture, the examiner assessed the Veteran as presenting with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or, with symptoms controlled by medication. Such a disability picture is directly commensurate with the criteria for a lower evaluation than is currently assigned. The remaining evidence does not establish a more severe disability picture than that assessed by the September 2017 examiner, to include one commensurate with the criteria for a rating greater than 50 percent. Rather, private treatment records speak to the Veteran’s history of intermittent anxiety which did not require any significant intervention, including with medications or therapy. See generally private treatment records. Notably, the Veteran has not offered any specific argument as to why a higher rating is warranted during the period on appeal, to include on his September 2018 Notice of Disagreement (NOD) or August 2019 VA Form 9. Instead, his former representative argued that a higher rating was warranted per the precedent of Mauerhan v. Principi, 16 Vet. App. 436 (2002). Specifically, the representative contended that a 70 percent rating was warranted upon the Veteran’s symptoms of anxiety, mood disturbances, and difficulty in adapting to stressful circumstances, as he was not required to demonstrate all symptoms enunciated in the criteria for an award of 70 percent. See December 2019 VA Form 646. However, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In this case, such an analysis does not establish that the severity, frequency, and duration of the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas, as required for the assignment of a 70 percent rating. Rather, the Veteran remained relatively high-functioning throughout the period on appeal, despite the presence of his symptoms. As a result, he reported a seemingly positive marriage with his long-term spouse. Although he also reported some social impairment, he explicitly attributed his limitations to his physical disabilities rather than his PTSD. See September 2017 DBQ. Moreover, he was consistently able to communicate appropriately and effectively with his treatment providers, and did not demonstrate impaired thinking, judgment, or memory at any time. There is also no evidence that the Veteran required assistance with the tasks of daily living due to his disability. Critically, the majority of symptoms enunciated in the criteria for a 70 percent rating, including suicidal ideations, obsessional rituals, inappropriate speech, impaired impulse control, spatial disorientation, and neglect of personal hygiene, are entirely absent from the record during the period on appeal. Upon the above, the Veteran’s disability picture prior to October 8, 2020, most nearly approximates the criteria for a 50 percent rating, as currently assigned. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. Accordingly, the appeal seeking a higher rating is hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. In pertinent part, the Board remanded these matters in March 2020 to obtain a series of VA examinations. In its remand instructions, the Board clearly informed future examiners that the Veteran’s service treatment records (STRs) were unavailable and no negative inference may be drawn from the lack of such records. Nonetheless, a series of negative nexus opinions obtained in October 2020 are based largely upon the absence of evidence speaking to in-service diagnoses or treatment for the claimed disorders. Moreover, the examiner recorded the Veteran’s testimony as to multiple in-service injuries or events, but failed to address this reporting in his provided rationales. Accordingly, remand is now warranted such that adequate opinions may be obtained. The matters are REMANDED for the following action: Obtain addendum opinions responsive to the questions below. If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate. Schedule an in-person examination if deemed necessary to answer the questions below. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. In particular, the examiner must offer opinions as to the following: (1) For each diagnosed neck, lower back, bilateral knee, left hip, peripheral neuropathy, and tremor disorder, opine as to whether it is at least as likely as not that the condition began in service, was caused by service, or is otherwise related to service. In doing so, the examiner is notified that the Veteran’s STRs are not available, and that no negative inference may be drawn from the lack of such records. Further, the examiner must explicitly address the Veteran’s testimony regarding pertinent in-service injuries or events in his/her rationale, including: the onset of relevant symptoms in 1953 during service in Korea, due in part to exercises carrying heavy gear up mountains; and an incident when the Veteran incurred various injuries after diving into a gutter to avoid a mortar attack. In formulating the opinions, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.