Citation Nr: 21066714 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 12-19 880 DATE: November 2, 2021 ORDER Subject to the laws and regulations governing the award of VA monetary benefits, an initial rating of 70 percent, but no more, prior to November 22, 2013, for post-traumatic stress disorder (PTSD) is granted. A rating in excess of 100 percent from November 22, 2013, for PTSD is denied. An initial compensable rating prior to May 31, 2017, and in excess of 50 percent thereafter for bilateral hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the spine with painful motion and intervertebral disc syndrome (IVDS) (back disability) is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 15, 2010, is remanded. Entitlement to basic eligibility for Dependents' Educational Assistance (DEA) prior to April 15, 2010, is remanded. Entitlement to special monthly compensation (SMC) based on housebound status prior to May 31, 2017, is remanded. FINDINGS OF FACT 1. Prior to November 22, 2013, the Veteran's PTSD manifested in irritable and angry mood, impaired impulse control, dislike of interacting with society, emotional numbing, avoidance behaviors, hypervigilance, difficulty with sleep, nightmares, and intrusive thoughts, resulting in occupational and social impairment with deficiencies in most areas. 2. From November 22, 2013, the Veteran's PTSD is in receipt of the highest schedular rating available. 3. Prior to May 31, 2017, the Veteran's hearing loss was manifested, at its worst, by Level II hearing impairment in the right ear and Level III hearing impairment in the left ear. 4. From May 31, 2017, the Veteran's hearing loss was manifested, at its worst, by Level VIII hearing impairment in the right ear and Level VIII hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no more, prior to November 22, 2013, for PTSD have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 100 percent from November 22, 2013, for PTSD have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, DC 9411. 3. The criteria for an initial compensable rating prior to May 31, 2017, and in excess of 50 percent thereafter for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1970 to June 1971 and June 1971 to June 1974. These matters come before the Board of Veterans Appeals (Board) on appeal from July 2009, August 2017, and February 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The increased ratings claims for PTSD and bilateral hearing loss were previously before the Board in May 2018, at which time they were remanded for further evidentiary development. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider those claims. See Stegall v. West, 11 Vet. App. 268 (1998). In his October 2020 Substantive Appeal, the Veteran requested a hearing before the Board at a local VA office. However, in August 2021, he withdrew his hearing request and chose to submit a written statement instead. As such, the Board finds that the hearing request has been successfully withdrawn and consideration of the claims may proceed. See 38 C.F.R. §§ 20.703, 20.704. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. PTSD The Veteran's PTSD is rated 50 percent disabling prior to April 15, 2010, 70 percent from April 15, 2010, to November 22, 2013, and 100 percent thereafter, under 38 C.F.R. § 4.130, DC 9411. As the Veteran appealed his initial rating, the Board will consider the severity of the disability from the original date of claim, March 10, 2009. Psychiatric disabilities are rated under the General Rating Formula for Mental Disorders. Under that criteria, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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 a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). Turning to the evidence of record, the Veteran underwent a VA PTSD examination in May 2009. He reported that he had "anger issues" and zero tolerance for stupidity. He yelled and got angry four to five times at work per week. He had difficulty sleeping, only managing three to four hours each night. He then would get up and investigate noises. He also had been told by counselors that he was hypervigilant and his ex-wife told him he yelled in his sleep. He reexperienced several military stressors and avoided talking about Vietnam. He was also generally detached from people, did not have many friends, and was fairly isolated. The examiner stated that the Veteran presented with a number of odd behaviors. He denied experiencing any depression or down mood; he was somewhat grandiose and labile; speech at times was pressured; he denied hallucinations; he asked whether the examiner would need to report any potential war crimes or other seedy behaviors he may have engaged in which may have demonstrated paranoid thinking; and he was slightly tangential with oddities and eccentricities in his behavior and presentation. He had some prior PTSD treatment but no hospitalizations or medications. He was well-groomed and his general appearance was appropriate and no self-neglect was evidenced. He was alert and engaged. Often, he would repeat questions, answer them in the third person, or answer using a Rush Limbaugh impersonation. His thoughts were generally coherent though tangential. His thought content included a lot of helicopter jargon, grandiose thinking, and potential paranoid thought. His affect was labile and his mood agitated. He denied suicidal or homicidal thoughts but in the 1970s after returning from service, there were many instances when he sat with his gun in his mouth but he did not have the "passion" to kill himself. He denied any thoughts or attempts of suicide since that time. At one point in the interview, he repeated a fairly significant story and appeared unaware that he had already told the story. Insight was questionable and his capacity to form good judgment was fair. The Veteran was married and divorced twice with no children. He was currently not involved with anyone. Socially, he described few, if any, friends. He occasionally went out to dinner with his secretary. He had no regular social contacts except for those with whom he worked. Regarding leisure activities, he liked to feed horses, herd and brand cattle, and read. He practiced as a lawyer primarily in real estate. He said over the years he had become nasty in dealing with people in his practice and repeated that he could not stand stupid people. He stated that he had nearly thrown people out of his office because of their stupidity. The examiner diagnosed PTSD given the Veteran's continued irritability, hypervigilance, sleep problems, detachment, avoidance of trauma, and reexperiencing military stressors. Though he appeared to downplay the significance of the symptoms at times, the examiner determined that such symptoms appeared to be in the moderate/serious range. Several lay statements were submitted in July 2009. The Veteran's mother stated that he was unable to maintain a job, hobby, or relationship for any extended period of time. His relationship with his family had been strained and there were a number of years that he did not speak with her. He was unpredictable and often flared into a rage without provocation. He had all of his belongings still packed in containers as if he just moved into his apartment which he had resided in for 10 years. He had no bed and slept on the floor. He avoided talking about his Vietnam experiences. He always seemed to be angry and upset, much of it appearing to be job-related. A previous employee described the Veteran's difficulty dealing with stress, erupting into unreasonable fits of anger for little or no reason. He often yelled at her or other members of the staff to the point that they had to leave the office for him to "cool off." He frequently would get agitated and stressed by clients or potential clients and would start shouting at them for no good reason, resulting in losing some clients. She stated that she did not believe that he had the proper temperament or ability to handle stress effectively enough to be a successful attorney. A current employee also described his anger issues, with yelling at staff and clients. She also noted that he would tell the same stories over and over, one time telling the same 20-minute story 10 times in a row. He had threatened to physically throw clients out of the office and she believed that he would have. She stressed that he did not have friends or a close relationship with his family. His anger issues made him incapable of functioning effectively at any job that dealt with the public. The Veteran's landlord and neighbor also submitted a statement. She stated that sleeps on the floor and is packed as if ready to move on short notice. He did not clean his apartment for 6 years. He has very few visitors and when his family tried to visit, he got agitated or upset. In a March 2010 statement, the Veteran noted that his entire life had been consumed by his wartime/combat experience in Vietnam. Another VA PTSD examination was conducted in April 2010. When asked to describe his overall PTSD symptomology, he stated that, "I hate people and I just don't belong in society." He reported that he preferred to stay by himself and had no friends. He avoided things that reminded him of Vietnam but experienced intrusive thoughts. He also avoided crowded areas and was hypervigilant of his surroundings. He endorsed both suicidal and homicidal ideation without plan or intent and stated that he had no intention of harming anyone unless they "made it open season." He had difficulty falling and staying asleep and got approximately 3 to 4 hours of sleep a night. He believed he had nightmares as he woke up feeling as if he had been fighting in his sleep. Since the last examination, he stated that he had had to close his law office and was currently working for tips dressing up as a cowboy at a local ranch. He continued to live alone with his cat. Upon observation, the Veteran was alert and oriented in all spheres; he was adequately groomed; his overall mood appeared irritable and angry with affect appropriate to content; he made good eye contact; speech was somewhat pressured at times with increased volume at certain points; his tone of speech was within normal limits; no psychomotor agitation was observed; memory and concentration appeared to be intact; his thought process was overabundant at times and he was somewhat verbose and rambling; there was no evidence of a psychotic disorder; his judgment and insight appeared fair to good; and intelligence was average. The Veteran continued to meet the diagnostic criteria for PTSD with symptoms of irritable and angry mood, dislike of interacting with society, experiencing emotional numbing, avoidance behaviors, hypervigilance, difficulty with sleep, nightmares, and intrusive thoughts. In September 2011, VA clinicians conducted a PTSD screen which yielded negative results. A Decision Review Officer (DRO) hearing was conducted in April 2012. He described his current employment as part-time work acting as a cowboy on a horse ranch in exchange for boarding for his horses. He clarified some information from prior VA examination reports, as well. The Veteran subsequently submitted a written statement clarifying some of his work duties. The Veteran had a mental health therapy intake assessment in August 2012. He endorsed insomnia, anxiety, anger, irritability, depression, heightened startle response, intrusive thoughts, and nightmares. He stated that he was seeking care to help him socially interact with others in a more positive manner. He denied suicidal and homicidal thoughts or plan but did report prior suicidal attempts immediately after returning from Vietnam. He endorsed feelings of hopelessness or despair. Upon observation, he had a neat appearance; his manner was hostile and sarcastic; intelligence was above average; speech was rapid and pressured; he was fully oriented; memory was normal; affect was inappropriate; associations were within normal limits; motor activity was tense; judgment was good; there was no evidence of delusions, disorganized thinking, hallucinations, or grossly disorganized catatonic behavior; he had low energy; and he had sleep disturbances. The Veteran subsequently attended 13 therapy sessions at which he reported similar symptomology. The Veteran underwent a VA PTSD examination in November 2013. Current symptomology included depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; circumstantial, circumlocutory, or stereotyped speech; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. The Veteran continued to live alone and be unemployed. The examiner determined that the severity of the Veteran's PTSD was total occupational and social impairment. He was unable to work in any situation with other people because of his irritability and lack of tolerance for "other peoples' stupidity." A private psychiatrist submitted an opinion in November 2013. He noted that he had witnessed the Veteran's unprovoked, exaggerated behavior that was disruptive social interactions in which he was involved. He had difficulty controlling his temper and withdrew from situations to control his anger or frustration. That behavioral pattern had resulted in him becoming alienated from his friends and family. He had a marginal relationship with his mother and his siblings. Although his family encouraged him to participate in family gatherings, the Veteran made no effort to stay in contact with his family. When spending time with family, he tended to drink to excess and stated it was "the only way I can deal with them." He was observed to be emotionally detached, showing little or no interest in things. He was hypervigilant and had a persistent negative attitude. The clinician stated that the Veteran's PTSD was manifested by flashes of anger which interfered with his ability to function in social, family, commercial, and professional interactions. He appeared to interact without flashes of irritability only with his horse and cat. A private psychiatric evaluation was submitted in May 2014. The Veteran reported general anxiety, tension, depressed mood, and irrational anger outbursts. The clinician described his psychiatric disability as moderate but determined it would preclude employment. Another private evaluation was submitted in December 2014. The Veteran endorsed intrusive thoughts, irritability, withdrawing, and difficulty with interpersonal relationships. A November 2016 VA PTSD screen had negative results. A VA PTSD examination was conducted in June 2017. The Veteran continued to live alone but with two cats. He visited his mother monthly but continued to have poor relations with his siblings. He had no close friends but some acquaintances. He played internet games and read for recreation. His one social activity was going to a bar once a week where he was friendly with the bartender. He continued to be unemployed. He stated that he experienced some flashbacks when his pain medication was switched. Associated symptoms were noted to be depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and neglect of personal appearance and hygiene. Upon observation, the Veteran appeared unkempt but with clean clothes; his attitude was agitated and hostile at first, but he became more cooperative; eye contact was good; he was alert and oriented on all spheres; speech had normal rate and volume; there was no evidence of delusions or obsessions; he appeared to be a good historian; thought processes were linear; judgment and insight appeared fair; intellectual ability appeared average; mood was described as pretty good; affect was labile, agitated, and quick to anger; and he denied suicidal and homicidal ideation. The examiner determined that the Veteran's PTSD resulted in total occupational and social impairment. The Veteran submitted a statement in January 2018. He endorsed PTSD symptoms of difficulty in adapting to a structured work setting, trouble establishing and maintaining meaningful relationships, heightened state of awareness, difficulty in sleeping through the night, heightened reaction to sudden stimuli, lack of emotion, and reliving combat experiences. He stated that his symptoms have remained consistent and have not increased or decreased since filing his claim. A March 2020 VA PTSD screen had positive results. In a self-assessment conducted in May 2020, the Veteran reported his mental and emotional well-being a 4 out of 5. VA mental health clinicians conducted a mental status evaluation. The Veteran was cooperative and fully engaged, mood appeared to be euthymic, he appeared oriented on all spheres, verbal expression was congruent with mood, speech appeared within normal limits, thoughts were rational and goal-oriented, he denied audiovisual hallucinations or delusions and suicidal or homicidal intent, and he exhibited a high level of determination and decisiveness. The clinician noted that his main issue was chronic pain in his back. He enjoyed a solitary life in a rural area, away from others. He had limited social support from a few family members and preferred his personal space respected. Another VA examination was conducted in December 2018. The Veteran reported that his PTSD had not changed since he was first service connected in 2009. The examiner noted that the Veteran had shut down his law practice previously and continued to be unemployed. He could not maintain a relationship. He had difficulty falling and staying asleep. Once asleep, he was frequently awakened by nightmares. He has been told that he jumps up out of bed, shouts orders, walks about, and does not know that he is doing so. He sleeps on the floor. He only achieved about three to four hours of sleep on average and never felt rested. The Veteran was also highly socially averse and avoided crowds, malls, and grocery stores. He felt hypervigilant constantly, guarded, situationally aware, easily alarmed and startled, and highly irritable with verbal explosiveness when severely upset. He was suspicious of others and felt complete apathy. He reported deadened emotions and difficulty having loving feelings. He also experienced loss of drive and lack of motivation. He had intrusive and disruptive memories of the service traumas. The Veteran had a depressed mood and felt loss of interest and pleasure in usual activities, loss of appetite, significant weight alteration, and fatigue. He also experienced loss of focus and concentration. He denied panic. Upon observation, he was oriented on all spheres and dressed appropriately. His thought processes were logical and goal-directed. His speech pattern was within normal limits. He was able to make and maintain eye contact, his recent and remote memory appeared intact, and he was able to track the conversation and provide a coherent history. His mood was euthymic and he displayed a full range of affect congruent to the content of the conversation. The examiner indicated that symptoms associated with his PTSD included depressed mood, suspiciousness, chronic sleep impairment mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner determined that the Veteran's PTSD resulted in total occupational and social impairment. An opinion regarding unemployability was also provided. (a.) An initial rating of 70 percent, but no more, prior to November 22, 2013, for PTSD is granted. The Board notes at the outset that the May 2018 Board remand contained language to the effect that the April 2010 and November 2013 VA examinations should be discounted entirely due to inaccurate factual premises. However, as the remand analysis and instructions clearly delineated, this direction pertained to a determination of the functional impact of PTSD on the Veteran's employability only in order to aid in a decision regarding entitlement to TDIU on an extraschedular basis for bilateral hearing loss alone. The only noted inaccurate premise was that the examiners did not consider the impact of hearing loss on work impairment. As this consideration is not relevant to a decision regarding the extent and severity of the PTSD disability, the Board finds no reason to discount the examination results. Based on the foregoing, the Board finds that a 70 percent rating is warranted from the date of claim until November 22, 2013. The VA examinations, private evaluations, and lay statements reflected deficiencies in most areas, with anger outbursts causing difficulties in the Veteran's workplace, family, and in other relationships. Impaired impulse control clearly affected all aspects of his life, resulting in deficiencies in most areas. Difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships was clearly demonstrated both on clinical evaluation and in lay statements from his family and employees. As such, the Board finds that a 70 percent rating is warranted prior to November 22, 2013. However, a rating in excess of 70 percent is not warranted prior to November 22, 2013. Total impairment was not demonstrated. Although the Veteran had difficulties with his employees and clients, he maintained his law practice until finally closing it due to his PTSD and bilateral hearing loss disabilities. Thereafter, he interacted on a part-time basis with tourists in his role on a horse ranch. Although his family relations were strained and he had few other relationships, he admittedly enjoyed his isolation and privacy and the company of animals rather than other humans. He did not demonstrate gross impairment in thought processes, persistent delusions or hallucinations, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or severe memory loss, or symptoms of a similar severity resulting in total occupational and social impairment. Accordingly, a 70 percent rating, but no more, for PTSD is warranted prior to November 22, 2013. (b.) A rating in excess of 100 percent from November 22, 2013, for PTSD is denied. The Board finds that a rating in excess of 100 percent from November 22, 2013, for PTSD is not warranted. A 100 percent rating is the highest rating possible under 38 C.F.R. § 4.130, DC 9411. As he is already in receipt of the highest rating available, an increased rating cannot be assigned under this section as a matter of law. Sabonis v. Brown, 6 Vet. App. 6 (1994). Additionally, the Board has considered whether his PTSD is manifested by adverse symptomatology that allows for separate compensable ratings under another Diagnostic Code. However, there is no evidence of additional uncompensated symptomology warranting such a separate rating. Accordingly, a rating in excess of 100 percent from November 22, 2013, for PTSD is not merited. The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. 2. Bilateral Hearing Loss The Veteran's bilateral hearing loss is rated at a noncompensable rate prior to May 13, 2017, and 50 percent thereafter under 38 C.F.R. §§ 4.85, 4.86, DC 6100. As the Veteran appealed his initial rating, the Board will consider the severity of the disability from the date of the original claim, March 10, 2009. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Id. Turning to the evidence of record, the Veteran underwent a VA audiological examination in April 2009. He endorsed difficulty hearing during occupational activities. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 55 75 65 LEFT 25 35 70 70 60 The puretone threshold average was 58.75 in the right ear and 58.75 in the left ear. Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 96 in the right ear and 92 in the left ear. Another VA examination was conducted in April 2010. The Veteran again reported hearing difficulty with occupational activities. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 60 75 70 LEFT 20 40 65 70 65 The puretone threshold average was 61.25 in the right ear and 60 in the left ear. Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 96 bilaterally. VA treatment records from June 2010 reflected the Veteran's receipt of new hearing aids. Thereafter, VA audiological providers met with him just for maintenance of the hearing aids. The Veteran underwent another VA examination in November 2013. He stated that he could not hear speech unless facing the speaker. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 60 75 70 LEFT 20 45 70 70 65 The puretone threshold average was 63 in the right ear and 63 in the left ear. Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 92 in the right ear and 88 in the left ear. A VA audiological examination was conducted in May 2017. The Veteran reported that he could no longer practice law because he could not hear what his colleagues were saying. Speech sounded garbled if there were multiple speakers. He relied heavily on lip reading. The Veteran wore hearing aids when in a quiet environment or in a movie theater but could not wear them when there was a lot of background noise. He avoided situations where there were crowds because he wanted to protect the hearing acuity that he still had. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 65 75 70 LEFT 40 50 75 70 65 The puretone threshold average was 65 in the right ear and 65 in the left ear. Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 48 in the right ear and 44 in the left ear. In a January 2018 statement, the Veteran reported having problems hearing normal speech in his personal and business life for an extended period of time. It severely impacted his ability to function in a courtroom and when interacting with clients. His hearing loss also played a significant part of his decision to begin winding down his legal practice. He stated that when he was examined by VA clinicians, when he experienced difficulty with word recognition, the administrator would very slowly at increased volume repeat words so that he could understand them. In September 2021, the Veteran stated that when he was still practicing law, his hearing loss had a significant impact on his ability to interact with clients and function in a courtroom. His hearing did not suddenly worsen in 2017, but "testing was finally done properly." (a.) An initial compensable rating prior to May 31, 2017, and in excess of 50 percent thereafter for bilateral hearing loss is denied. The Board finds that prior to May 31, 2017, the Veteran's bilateral hearing loss warrants a noncompensable rating. The April 2009 and April 2010 VA audiological examinations results equated to Level II in the right ear and Level II in the left ear. 38 C.F.R. § 4.85, Table VI. Applying these levels to Table VII, the Veteran's hearing acuity equates to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. Additionally, there is no evidence of an exceptional level of hearing loss warranting consideration under 38 C.F.R. § 4.86. The November 2013 VA audiological examination results equated to Level II in the right ear and Level III in the left ear. 38 C.F.R. § 4.85, Table VI. Applying these levels to Table VII, the Veteran's hearing acuity equates to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. Additionally, there is no evidence of an exceptional level of hearing loss warranting consideration under 38 C.F.R. § 4.86. The May 2017 VA audiological examination results equated to Level VIII in the right ear and Level VIII in the left ear. 38 C.F.R. § 4.85, Table VI. Applying these levels to Table VII, the Veteran's hearing acuity equates to a 50 percent disability rating. 38 C.F.R. § 4.85, Table VII. Additionally, there is no evidence of an exceptional level of hearing loss warranting consideration under 38 C.F.R. § 4.86. To the extent that the Veteran may believe that his hearing loss is more severe than currently evaluated, the Board observes that, although he is competent to report symptoms such as difficulty understanding speech or hearing clearly with background noise, he is not competent to report that his hearing acuity is of sufficient severity to warrant a particular evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. Although he has contended that examinations conducted prior to May 2017 were done incorrectly, he has not been shown to have the appropriate audiological training to make such a determination. The prior examinations showed hearing loss at roughly the same severity, gradually decreasing over time. There is nothing on the face of the examination reports that suggests any deficiencies in the testing. Further, disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological examinations of record. Here, mechanical application of the rating schedule to the audiometric findings establishes entitlement to a noncompensable rating for bilateral hearing loss prior to May 31, 2017, and entitlement to a 50 percent rating thereafter. The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the spine with painful motion and IVDS is remanded. The Veteran's back disability is rated 10 percent disabling under 38 C.F.R. § 4.71a, DC 5242, throughout the entire appeal period. He was afforded a VA examination in July 2017. The examiner determined that with repeated use over time, pain and weakness would result. She however was unable to describe additional functional loss in terms of degrees of range of motion without speculating. No medical reason was provided for this inability. She stated that the Veteran did have "limitations with movement do [sic] to pain weakness." The Board finds that a new examination is needed which addresses additional functional loss in terms of range of motion with repeated use over time or which provides a medically-based reason for an inability to provide that information. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As the Veteran's range of motion with initial testing was normal, and he has indicated increased symptomology with prolonged activity, it is particularly important to understand additional limitations with repeated use over time. 2. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. 3. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. The Veteran's left lower extremity and right lower extremity radiculopathy are currently each rated 20 percent under 38 C.F.R. § 4.124a, DC 8520, secondary to his service-connected back disability. As the new examination requested for the back disability may have an impact on his ratings for associated radiculopathy, these issues are inextricably intertwined and remanded, as well. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Although associated radiculopathy was captured on the July 2017 VA back conditions examination, the Veteran has not been afforded an examination specifically designed to determine the extent and severity of his radiculopathy. As such, upon remand, a VA peripheral nerves examination should be conducted. 4. Entitlement to a TDIU prior to April 15, 2010, is remanded. 5. Entitlement to basic eligibility for DEA prior to April 15, 2010, is remanded. 6. Entitlement to SMC based on housebound status prior to May 31, 2017, is remanded. As any change in the assigned ratings for the Veteran's back disability and associated radiculopathy may have an effect on his eligibility for TDIU, DEA, and SMC at earlier dates, these issues must be remanded, as well. See Harris v. Derwinski, 1 Vet. App. at 183. The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA treatment records, specifically to include records since June 2020. Request that the Veteran identify any relevant and outstanding private treatment records and assist him in obtaining such records and associating them with the claims file. Any and all attempts to obtain such records should be documented in the claims file. 2. Schedule the Veteran for a VA back conditions examination to determine the current extent and severity of his back disability. The entire claims file should be made available to and reviewed by the examiner. All indicated tests should be conducted and all findings reported in detail. (a.) The examination should include testing results on both active and passive motion, and in weight-bearing, and nonweight-bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should estimate any additional functional loss in terms of additional degrees of limited motion of the thoracolumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's descriptions as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. Noting that the Veteran was not examined during a flare-up or after repeated use over time will not suffice. (c.) The examiner is asked to consider the Veteran's lay statements of record regarding the functional impact of his back disability. (Continued on the next page) 3. Schedule the Veteran for a VA peripheral nerves examination to determine the current extent and severity of his bilateral lower extremity radiculopathy. The entire claims file should be made available to and reviewed by the examiner. All indicated tests should be conducted and all findings reported in detail. The examiner is specifically asked to determine the severity of any lumbar radiculopathy, noting whether it is complete or incomplete, and if incomplete, whether it is mild, moderate, moderately severe, or severe with marked muscular atrophy. The examiner is asked to consider the Veteran's lay statements of record regarding the functional impact of his radiculopathy disabilities. 4. Ensure that the examination reports and any new records of medical treatment are associated with the claims file. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal, to include entitlement to TDIU and DEA prior to April 15, 2010, and entitlement to SMC prior to May 31, 2017. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.