Citation Nr: 21023581 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-05 783 DATE: April 21, 2021 ORDER Entitlement to a compensable disability rating for service-connected bilateral (left and right ear) hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT During the appeal period, at worst, the Veteran has had Level II hearing loss in each ear, so bilaterally. CONCLUSION OF LAW The criteria are not met for a compensable rating for bilateral hearing loss. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1971 to April 1976. The U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that, although a Veteran claims entitlement to service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that reasonably may be encompassed by several factors, including the Veteran’s description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim specifically for PTSD, the Board sees that his VA treatment records show additional diagnoses of major depressive disorder (MDD) and alcohol use disorder. The Board therefore finds that, pursuant to the holdings in Clemons, his claim should be recharacterized more generally as for an acquired psychiatric disorder – inclusive of, but not limited to, PTSD. 1. Entitlement to a compensable disability rating for service-connected bilateral hearing loss By way of relevant procedural background, the Veteran was initially granted service connection for recurrent otitis media with decreased hearing bilaterally in a March 1977 rating decision. His bilateral hearing loss initially was evaluated as 0-percent disabling, so noncompensable, retroactively effective from April 23, 1976. Most recently, in September 2010, he filed a claim for an increased rating. As will be discussed, however, no higher rating is warranted. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second (Hertz (Hz)). See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical (meaning nondiscretionary) application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hz or hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hz and of 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86(a), (b). During the pendency of this appeal, the principal medical evidence material to the Veteran’s claim for an increased rating for his bilateral hearing loss is contained in the reports of May 2011 and August 2020 VA examinations. The remainder of the medical treatment records contain no evidence materially inconsistent with the findings of those examinations as they relate to the severity of his disability. During the May 2011 VA audiological examination, the Veteran had the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 55 50 55 75 LEFT 55 50 60 65 The Veteran’s puretone threshold averages were 58.75 decibels in the right ear and 57.5 decibels in the left ear. Speech recognition was 94 percent in the right ear and 94 percent in the left ear. Application of the results from the May 2011 VA examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level II hearing loss in the right ear and Level II hearing loss also in the left ear. Where hearing loss is at Level II in both ears, so bilaterally, a noncompensable (0 percent) evaluation is assigned under Table VII. 38 C.F.R. § 4.85. In August 2020, the Veteran underwent another VA audiological examination, which revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 35 40 60 70 LEFT 35 35 60 70 The Veteran’s puretone threshold averages were 51.25 decibels in the right ear and 50 decibels in the left ear. Speech recognition was 94 percent in the right ear and 96 percent in the left ear. Application of the results from the August 2020 VA examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level I hearing loss in the right ear and Level I hearing loss also in the left ear. Where hearing loss is at Level I in both ears, so bilaterally, a noncompensable (0 percent) evaluation is assigned under Table VII. 38 C.F.R. § 4.85. At worst, then, the Veteran has had Level II hearing impairment in each ear, so at most a 0-percent, or noncompensable, rating is warranted for the entire period under review. He has not had an exceptional pattern of hearing impairment as contemplated by 38 C.F.R. § 4.86, so this other VA regulation is inapplicable. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. The Court has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Although the May 2011 examination report did not address the functional impact of the Veteran’s bilateral hearing loss, the August 2020 VA examiner noted that the Veteran stated that he has difficulty hearing during conversations and, consequently, must get close to people to hear them, which he finds upsetting. These descriptions are sufficient to comply with the applicable VA policies. Martinak, 21 Vet. App. at 447. Additionally, the Board has considered various lay statements from the Veteran attesting to the impact of his hearing loss. However, he is service connected for bilateral hearing loss and hearing loss, by its very nature, involves a difficulty with hearing acuity. He has reported having difficulty with hearing acuity. Thus, his reported symptoms are the very symptoms considered in the rating criteria and do not represent an exceptional or unusual disability picture such that referral of this claim to the appropriate officials for consideration of an extra-schedular rating is warranted. See C.F.R. § 3.321(b)(1). The Board finds that the functional effects of his bilateral hearing loss disability are adequately addressed by the record. Consider also there was a panel decision issued in December 2017 by the higher Veterans Court (CAVC) affirming a December 2015 Board decision that, like here, had declined to refer an increased rating hearing loss claim for extra-schedular consideration. See Rossy v. Shulkin, 29 Vet. App. 142 (2017). That appeal to the Court was filed after the Court had decided Doucette, 28 Vet. App. at 366, which had affirmed a Board decision denying extra-schedular referral when only the functional effects alleged were aspects of hearing loss. The Court concluded that Doucette directed the outcome of the appeal in Rossy, as well. In Doucette, the Court addressed how to conduct an extra-schedular analysis – specifically, the first Thun v. Peake, 22 Vet. App. 111 (2008) inquiry – in the contest of a hearing loss claim. The Court held that the rating criteria for §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely, difficulty understanding speech and the inability to hear sounds in various contexts. While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record. The Court saw no basis to distinguish that appeal from Doucette; as in this case, the only hearing loss problem alleged by the Veteran was difficulty understanding conversations, particularly in noisy or crowded circumstances. Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA’s schedular rating criteria. The Court found that the Veteran had failed to demonstrate any error regarding his bilateral hearing loss. The Court consequently affirmed the Board’s decision. Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). For the reasons and bases discussed, the Board finds that the Veteran’s currently assigned noncompensable disability rating for his service-connected bilateral hearing loss is appropriate. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to a compensable disability evaluation for bilateral hearing loss is denied. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, including PTSD, MDD and alcohol use disorder, is remanded. The Board previously remanded this claim in November 2017, directing the local Regional Office (RO) to conduct additional development to corroborate the Veteran’s alleged stressors and to schedule him for a VA mental status examination for an opinion concerning the nature and etiology of his claimed condition. Specifically, the Veteran contends that his especially traumatic experiences in service (“stressors”) took place while stationed at Fort Bragg and in Germany. He cites the following stressors: (1) a 105 Howitzer was accidentally fired and exploded about 200 yards from his squad; (2) a friend of his in headquarters hung himself; and (3) he rammed his right hand through a “wiremesh” window leaving a lifelong scar while in Germany. The November 2017 Board remand determined that, while the RO had confirmed the right arm injury stressor through service treatment records (STRs), it had not attempted to confirm the Veteran’s other claimed in-service non-combat stressors through appropriate record repositories. To this end, the RO subsequently submitted a request to the Defense Personnel Records Information Retrieval System (DPRIS) in an effort to verify the Veteran’s report of an accidental explosion of a 105 Howitzer during summer maneuvers at Fort Bragg in 1972. However, a preliminary review of the record shows the RO did not attempt to confirm the suicide of the Veteran’s friend as directed in the November 2017 Board remand. See also March 2021 Informal Hearing Presentation. Therefore, still more development of this claim is required. In addition, pursuant to the November 2017 Board remand, the Veteran underwent a VA examination in January 2020 to determine the nature and etiology of his claimed acquired psychiatric disorder, to include PTSD. The VA examiner indicated the Veteran does not meet the criteria for a diagnosis of PTSD based on the results of the Clinician-Administered PTSD Scale for the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders, i.e., DSM-5 (CAPS-5) but diagnosed the Veteran, instead, with moderate recurrent MDD with severe alcohol use disorder. Nevertheless, this VA examiner found that there was no evidence linking the Veteran’s psychiatric disorder to his military service. This VA examiner explained that the Veteran’s current symptoms are due to psychosocial stressors, such as his separation from his spouse, death of his mother, and homelessness, and that the first documentation of a mood disorder was in 2000, roughly 25 years after his separation from service. Other than receiving a DUI in 1972, there was no record of recurrent alcohol abuse in service to link his condition to his active duty.   However, the examiner’s partial determination, specifically, that the Veteran does not have a confirmed diagnosis of PTSD, conflicts with the other medical evidence of record contrarily concluding he does meet the DSM-5 criteria for this diagnosis. Therefore, there must be reconciliation of this discrepancy. Accordingly, this claim is again REMANDED for the following still additional development and consideration: 1. Undertake any necessary additional development to independently verify the Veteran’s described in-service stressor, particularly insofar as whether a friend of his in headquarters hung himself. See December 2010 PTSD statement for more specific dates and times to narrow the search. Such verification efforts should include contacting the National Archives and Records Administration (NARA), the U.S. Army and Joint Service Records Research Center (JSRRC), the U.S. Army Crime Records Center, or any other agency records repository deemed appropriate. The AOJ should ensure that the entire period for which the Veteran was at Fort Bragg is encompassed, submitting multiple 60-day requests to the JSSRC, if necessary. Any additional action necessary for independent verification of the particularly alleged stressors, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, notify the Veteran and his representative of this fact, explain the efforts taken to obtain this information, and describe any further action to be taken. Further, issue a formal finding documenting the scope of the inquiry, the steps taken, and the ultimate findings.   2. After completing the above requested development, obtain an addendum opinion concerning the nature and etiology of the Veteran’s acquired psychiatric disorder, to include PTSD and the other diagnoses he has received of MDD and alcohol use disorder. His claims file must be made available to the examiner in conjunction with the examination. The examiner should then provide an opinion on the following: (a.) *The examiner is specifically asked to reconcile the differences of opinion concerning whether the Veteran has PTSD or any other psychiatric disorder according to the DSM-5. If a diagnosis of PTSD is deemed warranted, then is it at least as likely as not (a 50 percent or greater probability) that any of the claimed in-service stressors caused the Veteran’s PTSD? (b.) For any psychiatric disorder diagnosis other than PTSD (e.g., MDD with alcohol use disorder), is it at least as likely as not (a 50 percent or greater probability) the Veteran’s disability began during his service or, if a psychosis, within a year of his discharge, or is otherwise related or attributable to a disease, an event, or an injury in service? A complete rationale for all opinions provided is essential. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. The mere absence of evidence of treatment for mental illness in the Veteran’s service treatment records (STRs) cannot, alone, be sufficient rationale for providing an unfavorable opinion – although it is permissible to consider this as one of several factors, provided there also is explanation of why it is reasonable to have this expectation. The examiner also is reminded that the Veteran served before VA adopted the PTSD nomenclature in 1980 or thereabouts. If the examiner is unable to provide an opinion without resorting to mere speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.