Citation Nr: 21075532 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-11 198 DATE: December 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and posttraumatic stress disorder (PTSD), is denied. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an acquired psychiatric disorder, to include adjustment disorder with anxiety and PTSD, began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's service-connected hearing loss has been productive of no worse than Level IX hearing acuity for the right ear and Level I hearing acuity of the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder to include adjustment disorder with anxiety and PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an initial compensable disability rating for the Veteran's service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321(b), Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty training (ACDUTRA) from November 1984 to March 1985 in the U.S. Army National Guard (ANG), a period of active duty service from November 2001 to May 2006 in the ANG, and additional unverified ANG service. In April 2017, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. With respect to the issue of entitlement to a higher rating for bilateral hearing loss, in an August 2013 rating decision, service connection for bilateral hearing loss was granted and a noncompensable rating was assigned, effective July 16, 2012. New and material evidence was received within one year of this decision, including an April 2014 VA examination. See 38 C.F.R. § 3.165 (b). As such, the appeal has been ongoing since the award of service connection and the issue has been characterized in accordance with Fenderson v. West, 12 Vet. App. 119 (1999). Most recently, the Board remanded these issues for further development in April 2020. As discussed further below, the Board finds that there has been substantial compliance with the prior Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and PTSD The Veteran has asserted that his psychiatric disorder is related to service. He has reported his stressors to a private evaluator and VA examiner as (1) witnessing a friend's injury during a training exercise and (2) getting pushed out of a truck and damaging his hip. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Initially, with respect to the Veteran's claim for PTSD, the evidence of record does not show a diagnosis based on an in-service corroborated stressor. See 38 C.F.R. § 3.304 (f). The Veteran has not asserted, nor does the evidence show that he participated in combat activities. Although a February 2016 private opinion diagnosed the Veteran with PTSD based on his time in service, there was no indication that the Veteran's service treatment and personnel records as well as post service clinical records were reviewed by the examiner. Moreover, importantly, the examiner related the Veteran's PTSD to his claimed stressor of witnessing a friend's injury in 2009. However, the Veteran was not on active duty at that time and despite requests, he has not provided any further information in order to verify whether this incident occurred on ACDUTRA. Significantly, on remand, in April 2020, the Veteran was sent a letter requesting further information concerning his in-service stressors so that such could be corroborated. However, the Veteran never responded. As such, the Board must find that the private opinion has minimal probative value. The Board also notes that VA clinical records show a diagnosis of PTSD. However, again, this diagnosis is not based on a corroborated stressor, and rather appears to be based on the Veteran's own history as opposed to an examiner finding that the Veteran met the diagnostic criteria for PTSD. Importantly, PTSD screenings have all been negative. Rather, when the Veteran was first seen at VA, he was diagnosed with adjustment disorder with anxiety. Importantly, a September 2016 follow up record by a VA psychologist to specifically determine whether the Veteran met the criteria for PTSD showed that the Veteran did not meet the criteria for PTSD under the DSM. After examining the Veteran and reviewing the record, the September 2019 VA examiner found that the Veteran did not meet the diagnostic criteria for PTSD. Rather, the examiner found that the appropriate diagnosis under the DSM criteria was adjustment disorder with anxiety. The Board finds it significant that the VA examiner reviewed the claims file. Moreover, the examiner observed that the stressor that the Veteran described did not seem to make sense and records demonstrate that the event was not described in a consistent or very credible manner. Perhaps he is not able to recall the exact details very well. However, his wife was also unable to comment specifically on his stressor. Her inability to clearly described what he had purportedly discussed on a repeated basis was confusing because he described her as his confidant. The examiner found that the Veteran and his wife were not judged to be credible, consistent or reliable historians. Given that the VA examiner reviewed the record, interviewed the Veteran and his wife and offered a rationale for finding that the Veteran did not suffer from PTSD, the Board finds that the VA examination is the most probative evidence of record concerning the Veteran's current diagnosis. As such, the Board finds that the Veteran does not have a diagnosis of PTSD under the DSM criteria. The preponderance of the evidence shows that the Veteran has been diagnosed with adjustment disorder with anxiety. Thus, the Veteran has a current disability. In turn, the question becomes whether the Veteran's current disability had its onset during service or is otherwise related to service. However, based on the evidence of record, the Board finds that the preponderance of the evidence is against awarding service connection for an acquired psychiatric disorder. Importantly, service treatment records are silent with respect to any complaints or diagnoses pertaining to a psychiatric disability. Again, despite requests for further information concerning any in-service incidents, the Veteran has not provided any further details. Further, while the Veteran is competent to report experiencing psychiatric symptoms since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with the service treatment records that showed no clinically diagnosed psychiatric disorder. Moreover, the first post service medical evidence of any psychiatric treatment is many years after service. Importantly, an April 2014 VA clinical record indicated that the Veteran had some possible secondary gain motivation related to his symptoms presentation and seeking compensation. Further, in October 2014, the Veteran expressly denied any psychiatric symptoms. Significantly, after reviewing the record and observing the Veteran's inconsistencies during the examination, the September 2019 VA examiner also found that the Veteran was not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Importantly, the September 2019 VA examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that the Veteran's current diagnosis meets DSM criteria, but there is no evidence that it is related to the Veteran's military service. The Veteran was not engaged in treatment for (1) being pushed out of a truck, ostensibly damaging his hip or (2) seeing a fellow soldier be blown out of a foxhole and half burnt in service. There is no evidence that the symptoms were continuous or the same entity since military service. Therefore, there is no nexus between military service and the current diagnosis. The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, while the Veteran believes his acquired psychiatric disorder is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it required specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Moreover, the Veteran also submitted a lay statement from his mother that appeared to describe the Veteran's symptoms that began in the 90s. However, the Veteran was not on active duty in the 90s so this statement does not appear to be relevant as to what symptoms the Veteran may have begun experiencing while in service. Moreover, she is not competent to attribute any of these symptoms to his current psychiatric disability. Thus, this statement is also outweighed by the more probative medical evidence. In conclusion, as the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, the benefit of the doubt doctrine is not for application, and the Veteran's claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. Entitlement to a compensable disability rating for bilateral hearing loss The Veteran asserts that his hearing loss warrants a compensable rating. The Veteran has asserted that his decreased hearing sensitivity caused increasing speech and clarity issues, especially in the right ear. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. A 10 percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is X and XI; where hearing in the better ear is II and hearing in the poorer ear is V to XI; where hearing in the better ear is III and hearing in the poorer ear is IV to VI; or where hearing in the better ear is IV and hearing in the poorer ear IV to V. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The next higher evaluation of 20 percent is provided where hearing in the better ear is III and hearing in the poorer ear is VII to XI; where hearing in the better ear is IV and hearing in the poorer ear is VI to VII; or where hearing in the better ear is V and hearing in the poorer ear V and VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Higher evaluations are available for more severe hearing loss. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the evidence of record, the Board finds that an initial compensable rating for the Veteran's bilateral hearing loss is not warranted. Initially, the Board notes that in support of his claim, he has submitted September 2012 and November 2014 private evaluations. However, the September 2012 report showed no speech recognition testing and a notation indicates that a complete hearing evaluation was not accomplished as the Veteran was unable to pay for complete diagnostics. As the examiner indicated that no further evaluation was done, further clarification concerning this report is not necessary. See Savage v. Shinseki, 24 Vet. App. 259 (2011). Further, the November 2014 audiogram showed what appeared to be results for the left ear, although not clear, with a comment stating "right ear no response." There is no other information regarding this audiogram. As such, on remand, the Board directed that additional information concerning this evaluation be obtained, specifically to find out which ear was tested, translate the results in numerical form, and whether the examiner is state-licensed. In May 2020, a letter went to the Veteran requesting additional information, but the Veteran never responded. Thus, as these private evaluations do not show a controlled speech discrimination test (Maryland CNC) for rating hearing loss under the applicable regulations, they have no probative value. The Veteran was afforded a VA examination in June 2013 and audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 RIGHT 95 95 95 100 LEFT 20 40 35 30 The puretone threshold average was 96 when rounded in the right ear and 31, when rounded, in the left ear. Speech recognition was 96 percent in the left ear. The examiner was not able to test speech recognition in the right ear. The examiner diagnosed bilateral sensorineural hearing loss and found that the test was valid for rating purposes. At the time of the June 2013 VA audiological examination, the Veteran was shown to have an average puretone hearing loss of 31 decibels in the left, with 96 percent speech discrimination, which translates to a Roman numeral designation of I for the left ear. As the examiner could not test speech discrimination in the right ear and the puretone threshold was 55 decibels or more at each of the four specified frequencies, Table VIA applies to the right ear. Under this table, a puretone threshold average of 96 translates to a Roman numeral designation of IX for the right ear. Thus, when applying Table VII, Diagnostic Code 6100, level IX for the right ear and level I for the left ear equates to a noncompensable disability evaluation. Importantly, a June 2015 VA audiogram showed normal hearing bilaterally for VA purposes and 100 percent word recognition. Likewise, a September 2016 VA audiogram also showed normal hearing in the left ear, but while showing a normal audiogram, word recognition in the right ear was 92 percent. The examiner noted that right ear hearing results should be interpreted with caution as they reflect Veteran's best volunteered responses. The Veteran was afforded additional VA examinations in April 2014 and October 2019. However, both examiners found that the test results were not valid for rating purposes. The April 2014 examiner indicated that the Veteran's responses were inconsistent and not repeatable. Further, the October 2019 VA examiner stated that due to inconsistencies in pure tone responses, a positive Stenger test in the right ear, repeating words presented at lower levels than any volunteered puretone thresholds (which is physiologically impossible) and much better than expected word recognition testing in light of volunteered pure tone thresholds, these results are considered to be of poor reliability and rating hearing loss accordingly would be resorting to mere speculation. The Board observes that the duty to assist is a two-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the Veteran has been afforded two opportunities to report to a VA examination so that the severity of his hearing loss could be appropriately rated. However, at both examinations, the Veteran did not cooperate and gave inconsistent responses. As such, the Board finds scheduling any further examination would be futile and the decision must be based on the current evidence of record. Here, the June 2013 VA examination is the only competent medical evidence of record that has been identified appropriate for rating purposes. Based on the average puretone threshold findings from the June 2013 VA examination, when applying Table VII, Diagnostic Code 6100, the findings equate to a noncompensable disability evaluation. Again, VA clinical records during this period do not show more severe hearing loss to warrant a higher rating. There is simply no evidence to show that the Veteran met the rating criteria for a higher rating at any point since the award of service connection. While the Veteran can describe the effects his hearing loss has on his daily activities, he is not competent to report findings for rating purposes, as the evaluation must be done by a state-licensed audiologist. Further, the examination report and the Veteran's statements discussed the functional effects of the Veteran's hearing loss disability. Thus, the functional effects of the Veteran's hearing loss disability are contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017); See Martinak v. Nicholson, 21 Vet. App. 447 (2007) (requiring examinations to include assessments of the impact of hearing loss on daily activities). In conclusion, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA and VII, Diagnostic Code 6100. Applying the VA audiological test results from the VA audiological evaluation, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a higher initial rating for bilateral hearing loss. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for his hearing loss at any point since the award of service connection. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.