Citation Nr: 21021582 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-27 331 DATE: April 13, 2021 ORDER Entitlement to an initial 100 percent disability rating for service-connected major depressive disorder is granted, effective August 19, 2014, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s service-connected major depressive disorder is manifested by total occupational and social impairment. 2. The Veteran’s hearing loss is manifested by no worse than Level I bilaterally. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 100 percent for service-connected major depressive disorder are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.129, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to August 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2016 and February 2017 rating decisions. In the June 2016 decision, entitlement to an initial rating in excess of 50 percent for service-connected major depressive disorder was denied. In the February 2017 decision, service connection for left hearing loss was granted at a noncompensable rating, which was timely appealed. During the pendency of the appeal, the Veteran was awarded service connection for right ear hearing loss, effective August 19, 2014 (the date of claim for reopen for bilateral hearing loss). Accordingly, the issue before the Board has been recharacterized as entitlement to an initial compensable rating for bilateral hearing loss as reflected above. These matters were previously before the Board in May 2019 and were remanded for additional development. The case is once again before the Board. As a final preliminary matter, the Board notes that the Veteran was awarded entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in a September 2020 rating decision effective November 23, 2015. In this case, TDIU was raised by the record as part of the Veteran’s claim for an increased disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While TDIU was ultimately granted, it was not granted for the entire period for consideration and remained on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). However, the Veteran is in receipt of a 100 percent schedular rating for service-connected major depressive disorder as the result of this Board decision. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Therefore, the issue of entitlement to TDIU prior to November 23, 2015 is moot. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). The Board acknowledges that an award of TDIU could still be permissible concurrently with a 100 percent schedular rating assignment in a case where the TDIU is shown to be solely due to disability other than that contemplated by the total rating assignment. See Bradley v. Peake, 22 Vet. App. 280 (2008). However, this is not the case in this appeal. Service connection has also been established for bilateral hearing loss with a noncompensable rating and tinnitus at a 10 percent rating and the Veteran has not alleged that his hearing disabilities have affected his employability. Increased Rating Generally, disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. The Veteran contends that an increased rating is warranted for his service-connected major depressive disorder. Historically, the Veteran’s service-connected major depressive disorder was initially evaluated at 30 percent under 38 C.F.R. § 4.130, DC 9434, effective December 22, 2014. In June 2016, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s disability rating to 50 percent effective August 19, 2014. Then in March 2018, the AOJ granted an increase to 70 percent. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Board concludes that the Veteran’s service-connected major depressive disorder did more nearly approximate the level of impairment required for a disability rating of 100 percent. VA and private treatment records, VA examinations, and lay statements show that the Veteran’s service-connected major depressive disorder was manifested by symptoms associated with a 100 percent rating such as grossly inappropriate behavior, gross impairment of thought process or communications, persistent hallucinations, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene. The Veteran also had symptoms that are not listed with a specific rating, such as uncooperativeness, contemptuousness, and anger. In February 2015, a VA examiner stated the Veteran’s service-connected major depressive disorder caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The Veteran’s symptoms were listed as depressed mood, anxiety, and intermittent inability to perform activities of daily living (including maintenance of minimal hygiene). The record also noted that the Veteran was uncooperative, contemptuous, and angry. The Veteran’s private psychiatrist stated he had unstructured suicidal ideation, audiovisual hallucinations, grandiose ideas, ambivalence, tiredness, mystical ideas, obsessive thinking, sadness, and isolation. His spouse reported that when the stress builds up, the Veteran goes to the forest for a few days where no one can bother him and eats what he finds in the woods. See August 2014 private treatment records. In December 2019, a VA examiner stated the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner reported his symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened effect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and grossly inappropriate behavior. With respect to his occupational functioning, the Veteran reported that he has not worked since service. He made a few attempts; he worked one day as a security guard and less than two weeks at another company. He attempted to finish his college education after service but left after two months because he felt people were watching him. With respect to his social functioning, the Veteran reported being married since 2009. His spouse reported that she did all the shopping because he did not like to go out. The Veteran’s spouse reported that a typical day for him started around 5:30 am, followed by breakfast prepared for him, he would take care of the family chickens, visit his godfather or stay at home, then go to bed between 7:00 and 10:00 pm. See December 2019 examination. His spouse has three children, which do not have a relationship with the Veteran and the spouses’ daughter moved out “due to difficulties with the Veteran.” In view of the Veteran’s symptoms showing intermittent ability to perform activities of daily living (including maintenance of minimal hygiene), persistent hallucination (both audio and visual ), and grossly inappropriate behavior, the Board resolves all reasonable doubt in favor of the Veteran and finds that the signs and symptoms of his service-connected major depressive disorder more nearly approximate total and social and occupational impairment. While the Veteran's symptoms do not meet the exact criteria of a 100 percent evaluation, his level of impairment more nearly approximates total social and occupational impairment and a 100 percent evaluation is warranted. Accordingly, the maximum 100 percent rating is warranted. Hearing loss Hearing loss is evaluated through the mechanical application of a veteran’s audiometric test results to the rating tables set forth in the Rating Schedule. Doucette v. Shulkin, 28 Vet. App. 366, 367 (2017). The audiometric testing must be conducted by a state-license audiologist and must include a puretone audiometry test as well as a controlled speech discrimination test (Maryland CNC), without the use of hearing aids, for VA compensation purposes. 38 C.F.R. § 4.85(a). The Rating Schedule utilizes three tables (Tables VI, VIA, and VII) to evaluate hearing impairment. Table VII is used to determine the percentage evaluation by combining Roman numeral designations for the level of hearing impairment in each ear. These Roman numeral designations are obtained from Tables VI or VIA. Table VI is based on a combination of puretone threshold average and speech discrimination percentage. The Roman numerals range from I to XI. A higher Roman numeral is assigned based on a combination of a higher puretone threshold average and a lower speech discrimination percentage. If the use of speech discrimination is not appropriate, then Table VIA is the appropriate source of the Roman numeral designation, which is based solely on puretone threshold average. 38 C.F.R. § 4.85(c). Puretone threshold average is the average of the puretone thresholds at the 1000, 2000, 3000, and 4000 Hertz (Hz) frequencies. 38 C.F.R. § 4.85(d). Table VIA may also be used for “exceptional patterns of hearing impairment,” where the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) are 55 decibels (dB) or more, or where the puretone thresholds are 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. 38 C.F.R. § 4.86. The Veteran contends that he is entitled to an initial, compensable disability rating for his hearing loss. In assessing the evidence of record, the Board recognizes the Veteran is competent to provide evidence regarding the lay observable symptoms of his hearing impairment. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, for VA compensation purposes, audiometric testing conducted by a state-licensed audiologist is required to evaluate the severity of a veteran’s hearing impairment. 38 C.F.R. § 4.85. There is no evidence of record establishing that either the Veteran is a state-licensed audiologist; therefore, he is not competent to provide evidence regarding the severity of his hearing loss in terms of puretone thresholds and speech discrimination percentage. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999). As a result, the Board must rely on the medical evidence of record. The Veteran underwent VA audiological examinations in December 2016 and November 2019. During the December 2016 examination, the Veteran reported occasional difficulty following conversations. Audiometric testing at the time yielded the following results: HERTZ 1000 2000 3000 4000 Average RIGHT 15 35 30 30 28 LEFT 15 35 30 30 28 Speech audiometry revealed speech recognition ability of 100 percent in both the right and left ears. The examination did not reveal any exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86, or that the speech recognition discrimination test was not appropriate for consideration. Therefore, Table VIA is inapplicable. Utilizing Table VI, the right ear combination of the 28 dB puretone threshold average and the 100 percent speech discrimination for right ear results in the designation of a Roman numeral I. Likewise, the left ear combination of the 28 dB puretone threshold average and the 100 percent speech discrimination for left ear results in the designation of a Roman numeral I. When the Roman numerals I and I are applied to Table VII, the resulting percentage evaluation is zero percent or noncompensable. At the November 2019 examination, the Veteran reported that he has difficulty understanding conversations. Audiometric testing at the time yielded the following results: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 35 30 28 LEFT 15 25 35 30 26 Speech audiometry revealed speech recognition ability of 100 percent in both the right and left ears. The November 2019 examination also did not reveal any exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86, or that the speech recognition discrimination test was not appropriate for consideration. Therefore, Table VIA is inapplicable. Utilizing Table VI, the right ear combination of the 28 dB puretone threshold average and the 100 percent speech discrimination for right ear results in the designation of a Roman numeral I. The left ear combination of the 26 dB puretone threshold average and the 100 percent speech discrimination for left ear results in the designation of a Roman numeral I. When the Roman numerals I and I are applied to Table VII, the resulting percentage evaluation is zero percent or noncompensable. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an increased rating for hearing loss. 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). James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.