Citation Nr: 21004572 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-02 861 DATE: January 27, 2021 ORDER Entitlement to an increased rating greater than 10 percent from October 22, 2009 to August 18, 2017, for service-connected bilateral hearing loss is denied. Entitlement to an increased rating greater than 30 percent from August 19, 2017 for service-connected bilateral hearing loss is denied. REMAND Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include panic disorder with agoraphobia, is remanded. FINDINGS OF FACT 1. For the period from October 22, 2009 to August 18, 2017, the Veteran had, at worst, Level II hearing acuity in the right ear and level VI hearing acuity in the left ear. 2. For the period effective August 19, 2017, the Veteran had, at worst, Level VI hearing acuity in the right ear and level VII hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating greater than 10 percent from October 22, 2009 to August 18, 2017, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.85, 4.86; Diagnostic Code 6100. 2. The criteria for entitlement to an increased rating greater than 30 percent from August 19, 2017, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.85, 4.86; Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 through October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran had a video conference hearing before the undersigned Veterans Law Judge. The transcript is of record. In June 2017, the Board remanded this matter to the RO for further development of records that might corroborate the Veteran’s claim. The RO updated and associated with the claims file all the outstanding inpatient records from the 97th General Hospital in Frankfort, Germany from 1968 hospitalizations; and VA treatment records from both the Bay Pines and Tampa VAMC’s and all associated clinics from May 2014 to the present. The Veteran was also provided a VA hearing loss examination. The RO complied to the extent possible and a supplemental statement of the case (SSOC) was issued in April 2018. The Board finds there has been substantial compliance with the June 2017 remand instructions; however, as will be discussed below, further development is still required before disposition on the psychiatric issues of the case. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to an increased rating greater than 10 percent prior to August 19, 2017, and greater than 30 percent thereafter, for service-connected bilateral hearing loss is denied. The Veteran asserts his bilateral hearing loss warrants a higher rating. Specifically, he contends that he has trouble communicating with people, often needing them to repeat themselves louder so that he can understand them, especially in his right ear. See November 2016 Hearing Transcript. Ratings for service-connected bilateral hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. In evaluating service-connected bilateral hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Diagnostic Code (DC) 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist using a controlled speech discrimination test and the pure tone threshold average (which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four). See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels 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. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described in his November 2016 hearing testimony is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Prior to August 19, 2017 The Veteran first underwent a VA audiological examination in December 8, 2009, summarized in the chart below, with puretone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 60 65 70 LEFT 45 60 65 70 75 The average puretone threshold in the Veteran’s right ear was 60 decibels, while the average puretone threshold in the Veteran’s left ear was 67.5 decibels. The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained a 94 percent score in his right ear and a 90 percent score in his left ear. A puretone average threshold of 60 decibels in the right ear with a 94 percent speech discrimination score equates to level II hearing acuity. 38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 67.5 decibels in the left ear with a 90 percent speech discrimination score equates to level III hearing acuity. However, 38 C.F.R. § 4.86(a) is applicable for the Veteran’s left ear because the puretone thresholds were 55 decibels or more for all four specified frequencies (1000, 2000, 3000, and 4000 Hertz). Thus, for his left ear, whichever Roman numeral designation for hearing impairment from either Table VI or Table VIA results in the higher numeral will be used, and that numeral will then be evaluated to the next higher Roman numeral. As noted above, Table VI results in hearing impairment at level III and Table VIA results in hearing impairment at level V, which as the higher of the two is evaluated to the next higher Roman numeral of VI. Under Table VII, level II hearing acuity in the right ear and level VI hearing acuity in the left ear equates to a 10 percent rating for hearing impairment. Prior to August 19, 2017, the Veteran was not entitled to the next higher, 20 percent rating for his service-connected hearing loss. The Board considered the Veteran's VA and private treatment records but finds that nothing in those records supports a finding that the Veteran is entitled to a disability rating for his service-connected bilateral hearing loss higher than 10 percent prior to August 19, 2017, the date of his VA examination, which showed worsened hearing acuity. Likewise, the Board considered the Veteran’s lay statement. Although he is competent to report on symptomatology as he observes it, such as decreased hearing acuity and the Veteran’s experience in being unable to hear friends while out dining, the evidence as a whole does not indicate that the Veteran's hearing acuity and hearing loss disability warrant a higher evaluation under VA's tables for rating hearing loss disabilities for the period discussed above. Effective August 19, 2017 VA conducted another audiological evaluation in August 2017, summarized in the chart below, with puretone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 50 60 75 LEFT 35 50 55 60 70 The average puretone threshold in the Veteran’s right ear was 58 decibels, while the average puretone threshold in the Veteran’s left ear was 59 decibels. The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained a 60 percent score in his right ear and a 52 percent score in his left ear. A puretone average threshold of 58 decibels in the right ear with a 60 percent speech discrimination score equates to level VI hearing acuity. 38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 59 decibels in the left ear with a 52 percent speech discrimination score equates to level VII hearing acuity. Under Table VII, level VI hearing acuity in the right ear and level VII hearing acuity in the left ear equates to a 30 percent rating for hearing impairment. 38 C.F.R. § 4.85, Table VII. In October 2019, the Veteran’s representative submitted a private audiology exam. However, although not very legible, the exam does not indicate whether the Maryland CNC speech discrimination test was conducted, and as such cannot be used for rating purposes. The Board finds that a rating in excess of 30 percent is not warranted. As noted supra, although the Veteran is competent to report symptoms such as difficulty hearing or communicating, 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. REASONS FOR REMAND 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder, to include panic disorder with agoraphobia is remanded. The Veteran contends he has an acquired psychiatric disorder, to include panic disorder with agoraphobia and/or posttraumatic stress disorder (PTSD), which were caused by his military service. See November 2016 Hearing Transcript; see also May 2014 Statement in Support of Claim for PTSD; January 2013 Substantive Appeal. The claim was remanded, and in August 2017, additional service treatment records were associated with the Veteran's claims file. The VA will reconsider a claim at any time after a decision has been issued on a claim, and it thereafter receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. See 38C.F.R. §3.156(c). Here, the additional service treatment records associated with the claims file in August 2017 included numerous service treatment records that are relevant to the Veteran's acquired psychiatric disorder and/or PTSD claim, including several hospitalization records. While the service records previously obtained showed he was hospitalized, the additional records obtained in 2017 contain in-depth notes about his complaints and symptoms, his presentation, and evaluations/observations while he was hospitalized. These records were not available to the November 2012 VA examiner, including the records from July and August 1968. The addition of these records renders the November 2012 VA examination and opinion inadequate. Remand is necessary to obtain a new VA examination and opinion regarding the etiology of the Veteran's acquired psychiatric disorder to include panic disorder with agoraphobia, and/or PTSD. The 2012 VA examiner noted the fact that the Veteran responded “yes” to “nervous trouble of any sort” on his entrance examination, and it was noted that he had seen a private psychiatrist due to “recent lack of self confidence.” When hospitalized during service, the Veteran reported he had seen a psychiatrist in November 1967 (pre-service) for a muscular tic that worsened with stress. Since the Veteran’s psychiatric evaluation at entrance was normal, he is entitled to the presumption of soundness. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2017 to present. 2. Schedule the Veteran for a VA psychiatric examination to obtain an opinion as to the nature and etiology of any currently diagnosed acquired psychiatric disorders. All indicated tests and studies should be accomplished and the findings reported in detail. After a review of the claims file, the examiner should address the following: (a.) Identify all currently diagnosed acquired psychiatric disorders. (b.) For each currently diagnosed acquired psychiatric disorder, is it at least as likely as not that the disorder began in or is otherwise etiologically related to his active military service. • Unless there is clear and unmistakable evidence a psychiatric condition pre-existed service, then the Veteran is entitled to the presumption of soundness. While he did complain of nervous trouble on his 1966 induction examination, no psychiatric disorder was diagnosed and the evaluation was normal. • The examiner should expressly consider the additional service medical records received in August 2017 showing hospitalization in 1968, with diagnosis of situational maladjustment manifested by anxiety, hyperventilation, aggravation of neuromuscular tic, and agitation. See also August 1968 psychiatric evaluation diagnosing hysterical personality and concluding he had a longstanding character disorder; and VA hospitalization records in the 1970s. (c.) IF A DIAGNOSIS OF PTSD IS PROVIDED, the VA examiner should identify the claimed stressor(s) that serve(s) as the basis for the diagnosis of PTSD. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.