Citation Nr: 21067197 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-56 809 DATE: November 3, 2021 ORDER Entitlement to a compensable rating for a bilateral hearing loss disability is denied. REMANDED Entitlement to a disability rating greater than 70 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's bilateral hearing loss disability has been manifested by no worse than level II hearing bilaterally. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, 4.86a, DC 6100 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1966 to July 1968. This matter was previously before the Board of Veterans' Appeals (Board) in July 2019 and remanded for further development, including affording the Veteran new VA examinations. The matter has returned to the Board for further appellate review. In September 2021, the Board mailed the Veteran a letter inquiring as to whether he wished to submit a waiver of Agency of Original Jurisdiction (AOJ) review of new evidence received relating to his PTSD claim; the letter specified that if the Veteran did not respond within 45 days, VA would assume that he did not wish to have the Board decide his appeal and would remand the appeal to the AOJ for review. To date, the Veteran has not responded. Thus, the Board finds that a Supplemental Statement of the Case (SSOC) is necessary to address pertinent evidence since the most recent SSOC. See 38 C.F.R. § 19.31. With respect to the Veteran's claim for an increased rating for his bilateral hearing loss disability, the Board observes the additional evidence received since the most recent SSOC pertaining to his hearing loss is duplicative of evidence previously of record and considered by the AOJ. Accordingly, the Board will proceed with review of the issue of entitlement to a higher rating for the Veteran's service connected hearing loss disability. Although not certified for appeal, the Board has assumed jurisdiction of the Veteran's claim for entitlement to TDIU, as it is considered part of his increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.900(c). 38U.S.C. §7107(a)(2). INCREASED RATINGS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through Level XI, representing profound deafness. See 38 C.F.R. § 4.85. An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Entitlement to a compensable rating for a bilateral hearing loss disability The Veteran is seeking a compensable rating for his service-connected bilateral hearing loss disability. The Veteran has asserted that he had problems understanding directions and is struggling with hearing conversations in social settings. The Board determines that a compensable rating is not warranted for the Veteran's bilateral hearing loss disability. On the authorized audiological evaluation in May 2016, pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Average RIGHT EAR 35 35 65 75 53 LEFT EAR 30 40 70 80 55 Speech audiometry revealed speech recognition ability of 88 percent for right ear and 90 percent for left ear. When utilizing Table VI, the Veteran exhibits Level II hearing impairment bilaterally. After applying these results to Table VII, a noncompensable rating is for application. Pursuant to the Board's July 2019 remand directives, the Veteran was afforded another VA examination in January 2020. His puretone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Average RIGHT EAR 30 35 60 80 51 LEFT EAR 30 35 65 85 54 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. When utilizing Table VI, the Veteran exhibits Level II hearing impairment bilaterally. After applying these results to Table VII, a noncompensable percent rating is for application. In considering the appropriate disability ratings, the Board has also considered lay statements from the Veteran and his spouse, that his hearing loss is worse than the rating he currently receives. Specifically, that the Veteran has trouble understanding directions; that he struggles with hearing conversations; and that his hearing loss has gotten so bad that he now uses hearing aids. Here, while the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). On the other hand, such competent evidence concerning the nature and extent of the Veteran's bilateral hearing loss disability has been provided by medical personnel (audiologists) who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Therefore, based on the evidence of record, a compensable rating for a bilateral hearing loss disability is not warranted. Accordingly, the appeal for a higher rating is denied. REASONS FOR REMAND 1. Entitlement to a disability rating greater than 70 percent for post-traumatic stress disorder (PTSD) is remanded. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The most recent SSOC addressing the PTSD claim on appeal was issued in June 2020. Since that SSOC was issued, additional pertinent evidence has been associated with the claims file, including a VA PTSD examination report dated in July 2021. This medical record has not been considered by the AOJ. Where evidence is obtained by the VA, the automatic waiver provision does not apply. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154 , 126 Stat. 1165 (amending 38 U.S.C. § 7105 and providing that, in cases where a substantive appeal was received on or after February 2, 2013, there is an automatic waiver of initial RO review if the Veteran or his/her representative submits evidence to the RO or the Board; however, the automatic waiver does not apply to VA-generated evidence such as VA examination reports or VA treatment records). Thus, as the July 2021 VA examination report does not appear to have been submitted by either the Veteran or his representative, and a waiver of initial AOJ consideration is not of record, the automatic waiver provisions do not apply. Accordingly, a remand is required for the AOJ to review the new evidence in the first instance and issue a Supplemental Statement of the Case (SSOC) for the claims not granted in full. See 38 C.F.R. § §§ 19.31, 19.37(a). Furthermore, the Board cannot proceed with the adjudication of the TDIU issue because the Veteran's claim of entitlement to a TDIU is inextricably intertwined with the increased rating for PTSD claim also being remanded. Thus, the claim for a TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Review all relevant evidence, including the July 2021 VA examination report that has been associated with the Veteran's claims file since the issuance of the June 2020 SSOC. 2. Contact the Veteran and afford him the opportunity to submit any pertinent evidence in support of his claim for TDIU to include employment records. Associate with the Veteran's electronic folder, all documentation procured. If any of the records requested are unavailable, clearly document in the claims folder to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § § 3.159 (e). 3. After completing the development requested above, take all appropriate actions to readjudicate the Veteran's claim for an increased rating greater than 70 percent for his service-connected PTSD. Also, adjudicate the Veteran's claim for TDIU. If the claims are not granted in full, furnish the Veteran and his representative an SSOC and the requisite time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.