Citation Nr: 21065836 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 20-11 584 DATE: October 27, 2021 ORDER Entitlement to a compensable rating for the service-connected left ear hearing loss is denied. The appeal for an effective date earlier than November 4, 2016 for the service-connected PTSD is dismissed. REMANDED Entitlement to an increased rating higher than 50 percent for the service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran had, at worst, Level I hearing acuity in the right ear and Level VII hearing acuity in the left ear under 38 C.F.R. § 4.85, Table VI, which warrants a 0 percent disability rating under 38 C.F.R. § 4.85, Table VII. 2. The Veteran's psychiatric disability has been service-connected since June 21, 2001, and there is no remaining case or controversy before the Board. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the service-connected left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. The appeal for an effective date earlier than November 4, 2016 for the service-connected PTSD is dismissed. 38 U.S.C. §§ 7104(a), 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1958 to June 1959. The matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision. In July 2021, the Veteran testified before the undersigned. 1. Entitlement to a compensable rating for the service-connected left ear hearing loss is denied. The Veteran seeks a compensable rating for his hearing loss. He was afforded a VA audiological evaluation in November 2017. His pure tone thresholds, in decibels, were as follows for the left ear: 35 (1000 Hz); 65 (2000 Hz); 85 (3000 Hz); and 95 (4000 Hz). His average pure tone threshold was 70 decibels and his speech discrimination score was 64 percent in the left ear. For his nonservice-connected right ear, his average pure tone threshold was 36.25 decibels and his speech discrimination score was 96 percent. The Veteran was afforded another VA audiological evaluation in January 2019. His pure tone thresholds, in decibels, were as follows for the service-connected left ear: 30 (1000 Hz); 65 (2000 Hz); 85 (3000 Hz); and 105 (4000 Hz). His average pure tone threshold was 71.25 decibels and his speech discrimination score was 66 percent in the service-connected left ear. For his nonservice-connected right ear, his average pure tone threshold was 36.25 decibels and his speech discrimination score was 94 percent. Based on the above results, the Veteran does not have an exceptional pattern of hearing impairment and 38 C.F.R. § 4.86 does not apply. When impaired hearing is service-connected in only one ear, in order to determine the appropriate percentage evaluation from Table VII, the non-serviced connected ear will be assigned a Roman Numeral 'I' designation, subject to the provisions of § 3.383. Section 3.383 states that compensation is payable for combinations of service-connected and nonservice-connected disabilities, to include service-connected hearing impairment in one ear so long as the nonservice-connected ear's hearing impairment satisfies the criteria in § 3.385. Here, the Veteran's right ear hearing loss meets the criteria in 38 C.F.R. § 3.385; accordingly, the Board will use the Tables in 38 C.F.R. § 4.85 to determine the appropriate Roman Numeral designations for both the nonservice-connected right ear and the service-connected left ear. The November 2017 examination shows that the right ear's pure tone threshold average was 36.25 decibels and the speech discrimination score was 96 percent, a combination that warrants a 'I' numeric designation pursuant to Table VI. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. The left ear's pure tone threshold average was 70 decibels and his speech discrimination score was 64 percent, a combination that warrants a 'VII' numeric designation pursuant to Table VI. See id. Pursuant to Table VII, after entering the Veteran's left ear (as the poorer ear) and right ear numeric designations, the Veteran's hearing impairment warrants a 0 percent rating. See id. at Table VII. The January 2019 examination shows that the right ear's pure tone threshold average was 36.25 decibels and the speech discrimination score was 94 percent, a combination that warrants a 'I' numeric designation pursuant to Table VI. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. The left ear's pure tone threshold average was 71.25 decibels and his speech discrimination score was 66 percent, a combination that warrants a 'VII' numeric designation pursuant to Table VI. See id. Pursuant to Table VII, after entering the Veteran's left ear (as the poorer ear) and right ear numeric designations, the Veteran's hearing impairment warrants a 0 percent rating. See id. at Table VII. After considering the lay and medical evidence, to include his hearing testimony and VA treatment records, the Board finds that the Veteran's hearing loss does not warrant a compensable rating for the entire period on appeal. In making this determination, the Board found the VA examination results highly probative as the examiner made the necessary objective findings and the results are not contradicted by other evidence. The Board considered the Veteran's statements regarding his hearing loss. Although the Veteran is competent to report symptoms such as difficulty hearing, 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board thus finds that the audiological evaluations afforded to the Veteran are more probative in establishing his specific level of hearing loss. Considering the competent medical and lay evidence, the Board finds that the Veteran is not entitled to a compensable rating for his hearing loss for the entire period on appeal. 2. The appeal for an effective date earlier than November 4, 2016 for the service-connected PTSD is dismissed. The Veteran seeks an effective date of June 21, 2001 for his service-connected PTSD. In February 2006, the Veteran was awarded service connection for major depressive disorder. In July 2015, he filed a service connection claim for PTSD. Although his claim was denied because the evidence did not show a PTSD diagnosis, the rating for his major depressive disorder was increased based on the same evidence. In November 2016, the Veteran filed a claim for an increased rating for his major depressive disorder. He also filed another claim for service connection for PTSD in May 2017. Both claims were denied in February 2017 and June 2017, respectively. In August 2017, the Veteran was diagnosed with PTSD. In a September 2017 rating decision, the RO recharacterized his disability from major depressive disorder to PTSD with major depressive disorder. The Board understands the Veteran's request but there is no case or controversy for the Board to decide. The September 2017 rating decision did not establish a new grant of service connection but rather reclassified the Veteran's already service-connected psychiatric disability to PTSD. The same rating criteria apply, regardless of how the psychiatric disability is diagnosed. All mental disorders, listed at Diagnostic Codes 9201 through 9440, are evaluated pursuant to the General Rating Formula for Mental Disorders set out at 38 C.F.R. § 4.130. Notably, his psychiatric disorder has been service-connected since June 21, 2001. Generally, the Board has jurisdiction over questions of law or fact on appeal to the Secretary. 38 U.S.C. § 7104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific errors of law or fact in the determination being appealed. Because the Veteran seeks an effective date that he has already been awarded, there is no case or controversy before the Board and the claim is dismissed. REASONS FOR REMAND 1. Entitlement to an increased rating higher than 50 percent for the service-connected posttraumatic stress disorder (PTSD) is remanded. In the July 2021 hearing, the Veteran indicated that approximately 1.5 years of VA mental health treatment records were missing from the claims file. While the undersigned Veterans Law Judge held the record open for the records to be submitted, they were not. Because the Veteran testified that his condition has worsened and relevant VA treatment records are missing, the Board finds that a remand is necessary to obtain the outstanding records and a new examination. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Because a decision on the remanded issue of entitlement to an increased rating for PTSD could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined, and remand is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from February 2020 to the present. 2. Schedule the Veteran for a VA examination to assess the current severity of his PTSD. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.