Citation Nr: 21009453 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-03 416A DATE: February 22, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to service connection for any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. Throughout the appeal period, or from June 21, 2017, the Veteran’s bilateral hearing loss was manifested by hearing acuity that was no worse than Level I in the right ear and no worse than Level III in the left ear. 2. The Veteran does not have a current diagnosis of an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to service connection for any acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1965 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board remanded these matters for additional development. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902. 1. Entitlement to an initial compensable rating for bilateral hearing loss is denied. The Veteran asserts that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. See August 2018 Notice of Disagreement (NOD). Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone 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 pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. 38 C.F.R. § 4.86(b). If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. Throughout the appeal period, the Veteran submitted to two VA examinations. The July 2017 VA-contracted examiner noted the Veteran reported difficulty in understanding his wife’s speech. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007) (the examiner did elicit information from the appellant concerning the functional effects of his disability; that is all the applicable regulatory provisions require). 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 30 55 55 39 92% LEFT 25 25 70 60 45 80% 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 zero percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Per the May 2020 Board Remand, the Veteran was afforded an additional VA audiological examination based on his report that he misunderstood his examiner at the September 2017 VA examination. See July 2018 NOD. In August 2020, the Veteran submitted to an audiological examination conducted by a VA Staff Audiologist. The VA examiner was unable to obtain reliable puretone thresholds as the responses to puretone stimuli were inconsistent and unreliable after multiple attempts and repeated instructions. The audiologist reported that a positive Stenger test was observed. The Board notes that a Stenger Test is utilized to determine whether a patient is feigning hearing loss. See Dorland’s Illustrated Medical Dictionary (30th Ed. 2003) at 1883. The audiologist was likewise unable to obtain reliable Maryland CNC results as the Veteran’s responses were inconsistent because of language difficulties, cognitive problems, inconsistent word recognition scores, etc. The examiner noted that due to the inconsistency of the Veteran’s responses throughout the August 2020 VA audiological examination, the use of the puretone averages and word recognition scores would be inappropriate. The Board finds the examiner’s explanation for an inability to obtain valid test results probative and adequate. There are no other audiological examinations, lay statements, or treatment records available for review. The Veteran has not contested, and the Board has no reason to doubt, the adequacy of the examinations other than his own bare assertion, made in July 2018, that he misunderstood the July 2017 VA examiner. Critically, upon the Board’s attempt to re-examine the Veteran, he did not provide adequate test results. In sum, the preponderance of the evidence fails to reflect a basis for awarding a compensable rating for bilateral hearing loss, the benefit of the doubt is not applicable, and the appeal is denied. 2. Entitlement to service connection for any acquired psychiatric disorder, to include PTSD, is denied. The Veteran asserts that he has an acquired psychiatric disorder (anger, rage, insomnia, depression, apathy, stress), to include PTSD, that either had its onset during active duty or is otherwise related to his active duty service. See June 2017 VA Form 21-526EZ. The Veteran’s claim for PTSD and other psychiatric symptoms have been broadened to include any psychiatric disability reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. 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(d). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition to the requirements for service connection above, establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Initially, the Board notes the Veteran has not been afforded a VA examination at any time during the appeal period, and an opinion as to the etiology of any acquired psychiatric disorder has not otherwise been obtained. In this instance, there is no indication that the Veteran has a currently diagnosed acquired psychiatric disorder, or any signs or symptoms of the same, that may be associated with his military service or a service-connected disability. See, generally, VA treatment records. Furthermore, the Veteran’s service treatment records and service personnel records are silent as to any psychiatric symptoms; and the Veteran has not provided credible evidence of any in-service event, injury, disease, or continuous symptoms or any competent medical evidence that these conditions may be related to any incidence of service or a service-connected disability despite this information being repeatedly requested from the Veteran. See July 2017, June 2020, July 2020 VA Development Letters. Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). Instead, the only evidence of a possible connection between the claimed psychiatric disorder and service are the Veteran’s own conclusory statements that the conditions exist and are related to service. See June 2017 VA Form 21-526EZ, August 2018 NOD, February 2019 VA Form 9. However, such broad and conclusory statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran’s disability case). Moreover, while the Veteran is competent to report symptoms, such as feeling angry, he has not asserted, and the evidence does not otherwise demonstrate that he has the specialized skill or training necessary to diagnose a psychiatric disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.). The Board finds that the negative treatment records, including his service records and post-service medical records, along with the lack of any current documented treatment of the claimed disabilities or signs or symptoms of the same, to be more probative than Veteran’s claim for benefits made more than five decades after separation from service with no supporting medical evidence. Moreover, the record contains no current treatment records or medical opinion establishing that the Veteran has been diagnosed with any of his psychiatric disorders by a competent source. The Board notes the Veteran reported to a VA treatment provider during a registration screening that he had a history of PTSD; however, there is no other mention in the available VA treatment records regarding any symptoms associated with a psychiatric disorder. See April 2018 VA treatment records. Generally, symptoms of a disorder accompanied by any functional impairment are sufficient to satisfy element one of service connection; however, in the case of psychiatric disorders, 38 C.F.R. § 4.125 requires a Diagnostic and Statistical Manual of Mental Disorders (DSM–5) compliant diagnosis. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020) (VA has used its authority to limit compensation to disabilities that conform to a DSM-5 diagnosis). Critically, the Veteran reported no treatment of any psychiatric disorder or symptoms. See June 2017 VA Form 21-526EZ. Therefore, as there is no competent and credible evidence of a current disability, the VA’s duty to assist has not been triggered and a VA examination is not required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Thus, as there is no evidence of a diagnosed psychiatric disorder at any point just prior to or during the appeal period, the first element of service connection is not met, the claim fails on this basis alone, and the benefit sought on appeal is denied. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding that a recent diagnosis of disability prior to a veteran filing a claim for benefits satisfies element one of service connection); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.