Citation Nr: 21064049 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-10 816 DATE: October 18, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizoaffective disorder, is remanded. FINDING OF FACT The Veteran's hearing acuity has been, at worst, Level II in both ears. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to March 1987. He also served in the Texas Army National Guard from March 1987 to March 1988 and subsequently served in the United States Army Reserve until May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied the claim for service connection for a psychiatric disorder, but granted service connection for bilateral hearing loss and assigned a noncompensable evaluation effective from February 23, 2012. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2018. A transcript of the proceeding is of record. The Board remanded the case for further development in August 2018. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 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 audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI represents 9 categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the pure tone 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 pure tone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII, the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (includes Tables VI, VIA, and VII). Regulations also provide that, in cases of exceptional hearing loss, i.e., 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 will be evaluated separately. 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 elevated to the next higher Roman numeral. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an initial compensable evaluation is not warranted for bilateral hearing loss. The Veteran was afforded a VA examination for his bilateral hearing loss in April 2012. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 45 50 42 LEFT 30 40 50 55 44 Speech audiometry using the Maryland CNC word list revealed speech discrimination scores of 84 percent in the right ear and 88 percent in the left ear. These audiometric findings equate to Level II hearing loss in both ears. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Veteran was also afforded a VA audiological examination in April 2013. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 15 40 40 28 LEFT 15 20 45 40 30 Speech audiometry using the Maryland CNC word list revealed speech discrimination scores of 96 percent in the right ear and 84 percent in the left ear. These audiometric findings equate to Level I hearing loss in the right ear and Level II hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is again warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85 At the May 2018 hearing, the Veteran testified that he last had his hearing checked three years ago at Fort Bliss, which would have been in approximately 2015. There is no audiology examination report dated in 2015, but the claims file does contain an audiology examination report dated in July 2016 from Fort Bliss. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 40 55 38 LEFT 20 30 45 45 35 However, the report indicates that speech audiometry was tested using the CIDW-22 rather than the Maryland CNC test. The controlled speech discrimination test administered by a state-licensed audiologist must be the Maryland CNC Test. 38 C.F.R. § 4.85(a). Therefore, the examination report is not adequate for rating purposes. The Veteran was provided another VA examination in November 2016. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 40 45 34 LEFT 25 35 50 45 39 Speech audiometry using the Maryland CNC word list revealed speech discrimination scores of 96 percent in the right ear and 92 percent in the left ear. These audiometric findings equate to Level I hearing loss in both ears. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Veteran was afforded an additional VA examination in November 2019. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 3000 Average RIGHT 20 20 50 45 34 LEFT 20 30 45 45 35 Speech audiometry using the Maryland CNC word list revealed speech discrimination scores of 94 percent in each ear. These audiometric findings equate to Level I hearing loss in both ears. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological reports do not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86(a), (b). Based on the foregoing, none of the audiological examinations show that the Veteran is entitled to a compensable evaluation. The Board has considered the Veteran's lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As such, an increased evaluation is not warranted. See also Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's disability is so exceptional or unusual as to warrant the assignment of a higher evaluation on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. See Thun v. Peake, 22 Vet. App. 111 (2008); see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptomatology. In this regard, the Board finds that the Veteran's reports of his difficulty hearing and understanding speech constitute symptomatology and impairment contemplated in the rating criteria for hearing loss. Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech, as these are the effects that VA's audiometric tests are designed to measure. The Court further indicated that "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Board acknowledges the Veteran's reports that he also experiences ear pain, vertigo, and headaches associated with his hearing loss. However, the evidence does not show that he has such symptoms that are manifestations of or related to his service-connected hearing loss. In this regard, the November 2019 VA examiner stated that hearing loss is a symptom with etiology determined through careful diagnostic audiologic evaluation and medical examination. She explained that a symptom cannot provoke or induce another symptom. The examiner also found that the Veteran's current hearing loss is sensorineural in nature, which affects the internal cochlea and does not result in ear pain. She noted that the Veteran had reported experiencing pain in the skull area behind his ear, which is not ear pain, and therefore, is not associated with sensorineural hearing loss. Instead, the examiner found that the pain is more consistent with his previous diagnosis of a temporal headache based on December 2012 CT scan results. She further noted that a January 2014 treatment record had indicated that alcohol use was a possible cause of the Veteran's headaches. The examiner also commented that headaches have multiple factors with many onset conditions related to Veteran's documented history and that the documented resolution of headaches with medication indicates that there is no association with sensorineural hearing loss, which is permanent. In addition, the examiner noted that the Veteran denied having a history of dizziness. Thus, without sufficient evidence that the alleged unusual functional impairment is attributed to the underlying service-connected disability, extraschedular consideration is foreclosed. See Long v. Wilkie, 33 Vet. App. 167 (2020). Moreover, even if the Veteran does have headaches and vertigo associated with his service-connected hearing loss, there is no indication or argument that such conditions cannot be adequately evaluated under rating schedule. Diagnostic Codes 8100, 6204, 6205 specifically provide rating criteria for headaches, peripheral vestibular disorders, and Meniere's disease (contemplates hearing impairment with vertigo). A disability cannot be deemed exceptional where it is capable of evaluation by conventional rating means. See Long v. Wilkie, 33 Vet. App. 167 (2020). In addition, even considering the second Thun factor independently, there is no indication that the Veteran's hearing loss has resulted in periods of hospitalization or marked interference with employment. The Veteran has not reported any hospitalization. The November 2019 VA examiner also found that, although the Veteran may have some problems depending on the vocation, his hearing loss should not be a barrier to a wide range of occupational settings. In this regard, she stated that individuals with the Veteran's degree of hearing loss, or worse, function well in many occupational settings. She indicated that he would not have any physical restrictions or require a sedentary job based solely on his hearing loss and that, with reasonable accommodations, assistive devices, and properly adjusted and fitted hearing aids, the Veteran should be able to hear and understand directions and instructions. Based on the foregoing, it cannot be said that the available schedular evaluations are inadequate. Accordingly, the Board finds that the requirements for an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra; Doucette, supra. REASONS FOR REMAND Upon review, the Board finds that additional development is necessary prior to adjudication of the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder. Following the August 2018 remand, the Veteran was afforded a VA examination in November 2019. The examiner diagnosed him with unspecified schizophrenia spectrum and other psychotic disorder, which she stated was not acquired during service. She also opined that it is not as likely as not that the mental health disorder is related to the Veteran's military service. In so finding, the examiner noted that the Veteran never sought mental health services during active service. However, she did not provide any other rationale. Indeed, she did not address whether any delayed-onset could be related to any symptomatology, stress, or alcohol use in service, as directed in the prior remand. Therefore, the Board finds that an additional VA medical opinion is needed. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should send the Veteran a notice letter in connection with his claim for service connection for an acquired psychiatric disorder, to include PTSD. The letter should: (1) inform him of the information and evidence that is necessary to substantiate the claim, (2) inform him about the information and evidence that VA will seek to provide, and (3) inform him about the information and evidence that he is expected to provide. This letter should advise the Veteran of the alternative forms of evidence that can be used to corroborate an in-service assault and that behavioral changes may constitute credible supporting evidence of such a stressor. This letter should include a VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Personal Assault). 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for an acquired psychiatric disorder that are not already of record. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The AOJ should also secure any other outstanding VA treatment records. 3. After completing the foregoing development, the AOJ should obtain a medical opinion to determine the nature and etiology of any current acquired psychiatric disorder that may be present. An examination is not needed unless the examiner determines that one is necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's post-service treatment records, the Veteran's own assertions, the May 2018 hearing transcript, the January 2009 VA psychosocial assessment wherein the Veteran reported an incident of sexual and physical abuse in the military, the September 2011 VA treatment record documenting that the Veteran was not ready to disclose the traumas associated with his PTSD/military sexual trauma claim, and the February 2013 and November 2019 VA medial opinions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including 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. The examiner should identify all current acquired psychiatric disorders. For any diagnosis other than PTSD, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's military service, to include any symptomatology, stress, and alcohol use therein. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any personal assault he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should comment on whether the Veteran exhibited any behavioral changes during service that are reflective of the occurrence of an in-service physical assault. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to a request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Board notes that the Veteran was issued an Article 15 in September 1989 while in the Army Reserve for repeated unexcused absences. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should address whether there is any relationship between the current disorder and any verified in-service stressor. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 4. The AOJ should ensure compliance with the prior directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.