Citation Nr: 21014914 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-36 607 DATE: March 16, 2021 ORDER Entitlement to a compensable evaluation for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) and other specified and stressor-related disorder, variously diagnosed as other recurrent depressive disorder, major depressive disorder, and depressive disorder, not otherwise specified (NOS), is remanded. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss disability has not more nearly approximated the criteria for a compensable evaluation when mechanically applying the diagnostic criteria to the audiological testing results, and his complaint of difficulty hearing is contemplated by the rating schedule. CONCLUSION OF LAW The criteria for the assignment of a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1968 to November 1970, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In January 2020, the Veteran presented oral testimony in support of his appeal at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A copy of the January 2020 hearing transcript is of record. At the hearing, the Veteran and his representative asked the undersigned VLJ to hold the record open for 60 days so that additional evidence could be submitted. These appealed issues, among others, were previously before the Board in April 2020, when the Board determined that a remand was necessary to correct several deficiencies in VA’s duty to assist the Veteran. The Board’s prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appealed issues have been returned to the Board for further appellate consideration. By an October 2020 rating decision, the AOJ granted the Veteran’s appealed issue to establish service connection for hypertension, PTSD, and other specified and stressor-related disorder. These allowances abrogated the Veteran’s appeal with regard to these issues, and the Veteran has not expressed disagreement with the assigned initial evaluations and/or effective dates of these awards. Archbold v. Brown, 9 Vet. App. 124, 130 (1996). As such, these appealed issues are no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Characterization of an issue on appeal As noted by the Board in the April 2020 remand, the Veteran’s initial claims to establish service connection for acquired psychiatric disabilities were expanded and merged, as per the Court’s holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the AOJ’s awards of service connection for PTSD and other specified and stressor-related disorder, the lone acquired psychiatric disability remaining on appeal is other recurrent depressive disorder, which has alternatively been diagnosed as major depressive disorder and depressive disorder, NOS. As clarified by the September 2020 VA examiner, these diagnoses are used interchangeably and represent the same disability. Accordingly, the Veteran’s remaining appeal regarding the establishment of service connection for an acquired psychiatric disability has been narrowed to reflect this specific disability, although variously identified throughout the pendency of the appeal. 1. Entitlement to a compensable evaluation for service-connected bilateral hearing loss is denied. Disability evaluations are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran’s hearing loss disability is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1993). Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz). 38 C.F.R. § 4.85. This results in a Puretone Threshold Average for each ear. Id. The Puretone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85. Id. This results in a score, expressed as a Roman numeral, for each ear. Id. The Roman numeral scores for both ears are then charted in Table VII of 38 C.F.R. § 4.85, and the intersection of the scores provides the percentage of disability. Id. If impaired hearing is service-connected in only one ear, the non-service-connected ear will generally be assigned a Roman Numeral I. Id. Effective June 10, 1999, exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86. These provisions apply when either the puretone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86(a), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 38 C.F.R. § 4.86(b). If either of these provisions applies, each ear is evaluated separately. See 38 C.F.R. § 4.86. The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral. When 38 C.F.R. § 4.86(b) is applicable, the assigned numeral is elevated to the next higher Roman numeral. Id. Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). The rating schedule for evaluating hearing loss was purposely “designed to measure the best residual uncorrected hearing,” and evaluations are not to be determined based on the “best corrected hearing” as measured by “improvement with hearing aids.” See 38 C.F.R. § 4.85(a); 59 Fed. Reg. 17295; 64 Fed. Reg. 25200, 25204 (1999); see also Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran is seeking a compensable evaluation for his service-connected bilateral hearing loss. He filed a claim for increase on January 26, 2016, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This disability has been assigned a noncompensable (zero percent) throughout the entirety of the appeal period. After careful consideration in this case, the Board finds that a compensable evaluation for bilateral hearing loss are not assignable at any time during the appeal period. The Veteran was provided a VA audiological examination in connection with his claim in February 2016 which reflects relevant puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 45 65 70 52.25 LEFT 30 50 70 70 55 On the basis of the numbers shown above, the Veteran’s pure tone threshold average for the right ear was recorded as 52.25 decibels. His pure tone threshold average for the left ear was recorded as 55 decibels. His speech recognition scores were 92 percent for the right ear and 90 percent for the left ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the February 2016 VA audiological examination, the Veteran’s hearing loss disability results in Level I impairment in the right ear and Level II impairment in the left ear. Applying the criteria from Table VI to Table VII, based on the results of the February 2016 VA audiological examination findings, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column II. As described above, the rating criteria also provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. Here, puretone thresholds at each of the four specified frequencies were not shown to be 55 decibels or more in either ear, and therefore, evaluation under 38 C.F.R. § 4.86(a) is not warranted. Furthermore, puretone thresholds were not shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. As a result, the results did not reveal an exceptional pattern of hearing loss in either ear, and the Veteran is not entitled to additional consideration under 38 C.F.R. § 4.86(b). In support of his appeal, the Veteran submitted a private graphical audiogram representing an audiological test completed by a private provider in February 2020. The Court has held that the Board may interpret graphical audiograms, Kelly v. Brown, 7 Vet. App. 471 (1995), and the results are as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 65 70 51.25 LEFT 35 55 75 80 61.25 On the basis of the numbers shown above, the Veteran’s pure tone threshold average for the right ear was recorded as 51.25 decibels. His pure tone threshold average for the left ear was recorded as 61.25 decibels. Unfortunately, this private audiological evaluation is not valid for rating purposes under 38 C.F.R. § 4.85 because it did not use the Maryland CNC test to perform word recognition testing. Parenthetically, the Board notes that the February 2020 private audiogram did not reflect test results meeting the criteria for exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. However, based in part on these results, the Board remanded this claim for a new examination in April 2020. Consequent to the Board’s April 2020 remand, the Veteran was provided a VA audiological examination in September 2020 which reflects relevant puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 45 70 80 56.25 LEFT 40 45 80 75 60 On the basis of the numbers shown above, the Veteran’s pure tone threshold average for the right ear was recorded as 56.25 decibels. His pure tone threshold average for the left ear was recorded as 60 decibels. His speech recognition scores were 92 percent in both ears using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the September 2020 VA audiological examination, the Veteran’s hearing loss disability results in Level I impairment in the right ear and Level II impairment in the left ear. Applying the criteria from Table VI to Table VII, based on the results of the September 2020 VA audiological examination findings, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column II. Again, the September 2020 VA audiological testing did not reflect demonstrated decibel losses meeting the criteria of an exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. The Board recognizes the Veteran’s assertions regarding the impact of his bilateral hearing loss on his daily life, to include his statements to the February 2016 VA and September 2020 VA examiners that he had difficulty understanding speech in all environments, and such was exacerbated by noise, distance, and reverberation. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s reports of these difficulties are congruent with the evidence reflected in his VA treatment records, to include his prescription for, and usage of, VA-issued hearing aids in recent years. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometric results are obtained. Thus, the Board must base its determination on the audiological evaluation results of record and is bound by law to apply VA’s Rating Schedule based on such results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1; see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). Moreover, the rating criteria for evaluating hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in such everyday environments, as these are precisely the effects that VA’s audiometric tests are designed to measure. Thus, the effects described by the Veteran are contemplated by the schedular rating criteria, and referral for extraschedular consideration is not in order. See 38 C.F.R. § 3.321 (b); Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Therefore, applying the competent audiological test results to the regulatory criteria, the Board is compelled to conclude that a compensable evaluation is not warranted for bilateral hearing loss at any time during the pendency of the appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Finally, the Board does not find that this case raises a claim for TDIU based on his service-connected bilateral hearing loss disability. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence does not show, nor does the Veteran claim, that he is unemployable due to this disability. More specifically, the Veteran the Veteran does not contend, and the evidence does not show, that his service-connected bilateral hearing loss was involved in his choice to retire from his former occupation as an automobile mechanic and owner of a repair shop. Therefore, a claim for TDIU pursuant to the Court’s holding in Rice has not been raised by the record and no action is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability other than PTSD and other specified and stressor-related disorder, variously diagnosed as other recurrent depressive disorder, major depressive disorder, and depressive disorder, NOS, is remanded. As directed by the Board’s April 2020 remand, the Veteran was provided a VA psychiatric examination in September 2020, and the VA clinician clarified that the current diagnosis of other recurrent depressive disorder was the same disability that was previously diagnosed as major depressive disorder, and depressive disorder, NOS. It was also stated that this disability was manifested by psychiatric symptoms distinct from those attributable to the Veteran’s service-connected PTSD and other specified and stressor-related disorder. In addressing the matter of a medical nexus for this disability, the VA examiner opined that such “cannot be tied” to the Veteran’s exposure to combat, to include his reported stressor event and/or his reported fear of hostile military activity, with fifty percent or greater probability. The Board acknowledges and appreciates this opinion; however, it is not accompanied by rationale or reasoning. Moreover, a close reading of the September 2020 VA examination reflects that the Veteran’s depressive symptoms may be caused or aggravated by the symptoms attributable to his service-connected PTSD and/or other specified and stressor-related disorder. To this point, the Board concludes that nexus opinions must be obtained addressing the theory of secondary service connection. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertinent to the Veteran. 2. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to his psychiatric disabilities. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must transfer the Veteran’s complete electronic file to the VA clinician who completed the September 2020 psychiatric examination. After another review of the complete file, the VA clinician is requested to address the following: a. Provide an opinion concerning whether the Veteran’s other recurrent depressive disorder, major depressive disorder, and depressive disorder, NOS, are at least as likely as not proximately due to or the result of any incident of his active duty, to include his conceded and combat-related stressor events. b. Provide opinions concerning whether the Veteran’s other recurrent depressive disorder, major depressive disorder, and depressive disorder, NOS, are at least as likely as caused or aggravated by a service-connected disability. If the VA clinician cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. *If the VA clinician who completed the September 2020 VA psychiatric examination is unavailable or determines that an in-person examination is necessary, a psychiatric examination must be scheduled, and the Veteran must be provided the time and place to report. 4. Thereafter, the AOJ must readjudicate the Veteran's appeal in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with copy of the readjudication and afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.