Citation Nr: 21067407 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-11 344A DATE: November 4, 2021 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. Entitlement to an initial compensable rating prior to February 7, 2018 and in excess of 30 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's PTSD is at least as likely as not related to his service. 2. Prior to February 7, 2018, the Veteran's bilateral hearing was manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. 3. Since February 7, 2018, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VII in the right ear and no worse than Level VI in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have been met. 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to an initial compensable rating prior to February 7, 2018 and in excess of 30 percent thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from May 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were last before the Board in September 2018 where they were remanded for additional development. 1. Entitlement to service connection for PTSD The Veteran contends that he has PTSD that is related to his in-service combat experience. See December 2019 Private Opinion. The question for the Board is whether Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. There are conflicting opinions regarding whether the Veteran has a current PTSD diagnosis. The evidence against the claim includes a July 2019 VA examination. The VA examiner concluded that the Veteran did not have a current PTSD diagnosis but diagnosed the Veteran with Major Depressive Disorder (MDD). This conclusion was based on an assessment of the Veteran and a review of his medical records. The VA examiner further opined that the Veteran's MDD was less likely than not related to his service because its onset was within the last four to five years, decades after his separation from service. The evidence in favor of the claim includes a December 2019 private assessment and opinion provided by a psychologist and another supervising psychologist. The psychologists diagnosed the Veteran with PTSD after administering cognitive assessments and personality assessments. The private practitioner concluded that the Veteran's PTSD is directly related to his in-service combat stressors. The Veteran is a recipient of the Combat Infantryman Badge (CIB), as documented in his March 1970 DD Form 214. As such, when combined with the positive medical nexus opinion and absent clear and convincing evidence to the contrary, service connection for PTSD is warranted. 38 C.F.R. § 3.304(f)(2). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran has a current mental health condition that is related to his in-service combat stressors. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an initial compensable rating prior to February 7, 2018 and in excess of 30 percent thereafter for bilateral hearing loss The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Prior to February 7, 2018, a May 2015 VA examination revealed that the Veteran reported difficulty understanding speech in groups and in background noise, even with his hearing aids. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: May 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 20 65 50 36 98 LEFT 10 25 50 55 35 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss prior to February 7, 2018 is not warranted. Since February 7, 2018, a February 2018 VA examination reveals that the Veteran reported difficulty hearing and understanding speech in various situations including in big groups and in background noise. He further reported that he learned to lip read very well and often turns the TV volume up when needed. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: February 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 45 75 70 60 52 LEFT 35 50 75 80 60 60 Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a rating in excess of 30 percent for the Veteran's bilateral hearing loss since February 7, 2018 is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing and understanding speech. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating prior to February 7, 2018, and a rating in excess of 30 percent thereafter for bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.