Citation Nr: 21077172 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-17 366 DATE: December 28, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) with associated depression and anxiety is granted. Entitlement to a compensable rating for a service-connected bilateral hearing loss disability is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his posttraumatic stress disorder (PTSD) is etiologically related to his active service. 2. Veteran's service-connected bilateral hearing loss injury has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level III in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. The criteria for a compensable rating 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 had active service from June 1965 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office. 1. Entitlement to service connection for PTSD with associated depression and anxiety Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). "Secondary" service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. The Veteran contends that he has current psychiatric disability (to include PTSD) which is related to his deployment as a member of the 101st Airborne to Vietnam during his active service from December 1965 to November 1966. See, VA 21-0781. The Veteran's treatment records indicate that he manifested psychiatric symptoms throughout the period on appeal, and that he screened positive for PTSD. The Veteran underwent a VA examination on January 4, 2021. The examiner diagnosed the Veteran with unspecified trauma and stressor disorder and unspecified depressive disorder, but the examiner opined that the Veteran did not have a diagnosis of PTSD. Additionally, the examiner indicated that the symptoms previously identified as having been associated with PTSD were due to the Veteran's unspecified trauma and stressor disorder. In a February 2021 rating decision, the Veteran was granted service connection for unspecified trauma and stressor related disorder related to his military service in Vietnam. The Veteran submitted a disability benefits questionnaire completed by a private psychologist (Dr. J.L.) in October 2020. The private psychologist diagnosed the Veteran with post-traumatic stress disorder (PTSD), depression associated with PTSD and anxiety associated with PTSD. He was afforded VA psychiatric examinations on January 4, 2021, and May 3, 2021. The January 4, 2021 VA examiner opined that the Veteran does not have a diagnosis of PTSD that conforms to DSM-5 criteria. However, in a January 20, 2021 addendum, the VA examiner opined that the has an unspecified trauma and stressor related disorder that was at least as likely as not incurred in or caused by his claimed inservice injury. The January 20, 2021 VA examiner further opined that "Because the Veteran was actually involved or threatened death or serious injury from an actual or potential improvised explosive device or incoming artillery you should consider the veteran's testimony of these events to be credible verified stressful events from military service and therefore service connection for PTSD." The Board observes that the agency of original jurisdiction (AOJ) has conceded that the Veteran was exposed to stressors related to combat in Vietnam. Moreover, as a result of these stressors, the Veteran developed a current unspecified trauma and stressor related disorder resulting in the award of service connection for that psychiatric disorder. However, the AOJ denied service connection for PTSD finding that the evidence did not establish that the Veteran currently has PTSD. Therefore, the issue presently before the Board is whether these stressors result in a current diagnosis of PTSD. The evidence of record is in conflict as to whether the Veteran currently has a diagnosis of PTSD that conforms to the relevant DSM provisions. While a VA examiner concluded in January 2021 and May 2021 that the DSM criteria were not meet, the Veteran supplied an opinion from a private mental health provide that diagnosed with the Veteran with PTSD with associated depression and anxiety. The Board finds that the evidence for and the evidence against the claim is in relative equipoise. Accordingly, affording the Veteran the benefit of the doubt, the Board concludes that the evidence is in favor of a finding that the Veteran's diagnosed PTSD is causally related to his service. Additionally, the Board finds that the preponderance of the evidence is in favor of a finding that the Veteran's diagnosed depression and anxiety associated is associated to his service-connected PTSD. 2. Entitlement to an increased rating for a service-connected bilateral hearing loss disability, currently rated as non-compensable The Veteran contends that he is entitled to a higher rating because he experienced functional impairment as a result of his bilateral hearing loss disability and that his hearing has worsen since his last rating decision, he also stated that he was issued hearing aids by the VA. See, July 2021 Hearing Transcript. 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). An October 2015 VA examination reveals that the Veteran reported bilateral hearing loss disability. 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: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 25 60 75 43.75 94% LEFT 15 70 75 85 61.25 92% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II 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. An August 2020 VA examination reveals that the Veteran reported bilateral hearing loss disability. 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: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 30 70 85 52.5 94% LEFT 30 70 85 100 71.25 86% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III 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. A May 2021 VA examination reveals that the Veteran reported bilateral hearing loss disability. 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: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 65 85 48.75 98% LEFT 25 65 85 95 67.50 90% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III 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 greater than 0 percent for the Veteran's service-connected bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including [insert lay contentions regarding the symptoms of the Veteran's hearing loss]. 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 an increase rating for a bilateral hearing loss greater than 0 percent. 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 L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.