Citation Nr: 21073119 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-16 173 DATE: December 7, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT For the period of appeal, the Veteran had no worse than level III hearing loss in the right ear and level V hearing loss in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2018 decision, the Board remanded the case for the issuance of a supplemental statement of case (SSOC) which the RO issued in March 2021. 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking wok. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation 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. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes 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. 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 38 C.F.R. § 4.85 provides Table VI to determine a Roman numeral designation (I through XI) for hearing impairment for each ear based on puretone thresholds and Maryland CNC testing. Table VII is then utilized to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. The "puretone threshold average" as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. Where there are one of two exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. The first is where the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second is where the puretone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. 38 C.F.R. § 4.86 (b). When the evidence fails to show an exceptional pattern of hearing impairment is present, then Table VI will be used to assign a Roman numeral designation. In describing the evidence, the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. A July 2014 VA examination indicated puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 50 45 65 80 60 LEFT 50 55 55 75 58.75 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 84 percent in the right ear and of 72 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85, Table VI and Table VII, the Veteran's right ear hearing loss is assigned a numeric designation of III, and the left ear hearing loss is assigned a numeric designation of V. According to Table VII, a numeric designation of III and V indicates that the Veteran meets the criteria for a rating of 10 percent for his bilateral hearing loss. A February 2017 VA examination indicated puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 35 35 45 36.25 LEFT 30 30 35 40 33.75 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85, Table VI and Table VII, the Veteran's right ear hearing loss is assigned a numeric designation of I, and the left ear hearing loss is assigned a numeric designation of I. According to Table VII, a numeric designation of I in both ears indicates that the Veteran does not meet the criteria for a compensable rating for his bilateral hearing loss. A February 2021 VA examination indicated puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 50 50 45 50 48.75 LEFT 45 35 40 50 42.50 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 76 percent in the right ear and of 96 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85, Table VI and Table VII, the Veteran's right ear hearing loss is assigned a numeric designation of III, and the left ear hearing loss is assigned a numeric designation of I. According to Table VII, a numeric designation of I and III indicates that the Veteran does not meet the criteria for a compensable rating for his bilateral hearing loss. Therefore, the claim for a rating in excess of 10 percent for his service-connected bilateral hearing loss is not warranted under Table VII. See 38 C.F.R. § 4.85, DC 6100. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that he should be granted a higher rating for his PTSD due to the severity of his symptoms. During a March 2020 VA examination, the Veteran reported weekly nightmares, broken sleep, irritation, feeling overwhelmed and isolation. The examiner diagnosed him with PTSD but stated it was in remission and opined that his symptoms were not severe enough to cause social and occupational impairment or to require medication. They noted the Veteran's current PTSD symptoms included anxiety and chronic sleep impairment. The examiner noted the record was silent for psychiatric hospital admissions or mental health treatment. Id. In a July 2021 statement, the Veteran reported difficulties at work due to his anger and conflicts with his supervisor, co-workers and clients. See July 2021 Correspondence. He reported feeling like he wanted to hurt people when they made him angry and that on occasion he snapped and became aggressive. He reported weird dreams, nightmares, flashbacks, angry outbursts, crying spells, racing thoughts, trouble sleeping, trouble concentrating, and thoughts of self-harm and suicide. Id. He stated that he did not want to go to counseling because he felt like they judge him and don't understand what he's going thorough. Id. While the March 2020 VA examiner stated they considered the Veteran's lay statements and reviewed the medical file, their opinion regarding the severity of the Veteran's PTSD is not consistent with the Veteran's July 2021 statement or previous mental health evaluations. The examiner failed to provide an explanation or rationale why they disregarded the Veteran's contentions regarding his PTSD symptoms. Therefore, the Board finds the medical opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical report cannot merely draw conclusions from data; it should include "a reasoned medical explanation connecting the two"), see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In addition, even if the Veteran's PTSD was in remission during the March 2020 VA examination, his July 2021 statement supports that his PTSD symptoms have increased in severity since he was last examined by VA in March 2020. Therefore, the Board finds the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. In an October 2018 decision, the Board remanded the issue of entitlement to TDIU and in a March 2021 SSOC, the RO denied the claim for a TDIU. However, in the decision above, the Board remanded the claim for service connection for PTSD. The Board finds the issue of entitlement to a TDIU is inextricably intertwined with the claim for the Veteran's PTSD and therefore must be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an appropriate medical professional to determine the current severity of his posttraumatic stress disorder (PTSD). Any indicated evaluations, studies, and tests deemed necessary by the examiner should be completed. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles (Continued on the next page) involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.