Citation Nr: 22013299 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-02 678 DATE: March 9, 2022 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a peripheral vestibular disorder is remanded. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level III in the left ear during the period on appeal. CONCLUSION OF LAW The criteria for an initial compensable disability 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 (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1983 to May 1986. The Veteran was scheduled for a hearing before the Board on February 23, 2021. The Veteran was notified of the hearing and failed to appear. Neither the Veteran, nor his representative, have filed a timely motion requesting a new hearing date. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that his he is entitled to a higher rating because his hearing loss is more severe than contemplated by the noncompensable evaluation during the period on appeal. See March 2017 VA Form 9. For the reasons that follow, the Board finds that entitlement to an initial compensable evaluation is not warranted during the period on appeal. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Turning to the evidence of record, service connection for bilateral hearing loss was granted in an October 2016 rating decision. An initial noncompensable rating was assigned effective August 2, 2016, the date of the Veteran's notification to VA of his intent to file a claim seeking benefits. A September 2016 VA examination shows that the Veteran reported needing to have his wife repeat things to him constantly, having difficulty hearing with background noise, and needing to have the television turned up loud. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 20 30 40 LEFT 10 10 25 40 45 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted during the period on appeal. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including having to turn the television up loud which causes conflict at home, asking for repetition, and difficulty hearing in conversations especially with background noise. 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 a compensable 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). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran asserts that he has experienced panic attacks continuously since active duty service when he learned of the suicide of a fellow service member. See May 2016 statement in support of claim for service connection for PTSD; January 2017 VA Form 9. He also stated that he has been treated at VA for a diagnosis of PTSD. A review of the Veteran's VA treatment records includes chronic PTSD on a medical problem list. Considering the Veteran's credible testimony and the medical evidence of record, he should be afforded a VA examination with opinion on this issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a peripheral vestibular disorder is remanded. In a November 2019 informal hearing presentation, the Veteran's representative stated that the Veteran was last afforded a VA examination on March 2, 2016, for his claimed peripheral vestibular disorder. The representative concluded that the condition was not related to the Veteran's military service. It does not appear that a copy of this examination report was ever associated with the Veteran's claims folder. Remand is needed to obtain any unassociated VA examination report related to the service connection claim on appeal. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records, to include the March 2, 2016 VA examination report referenced by the Veteran's representative. Associate the documents with the Veteran's claims file. (Continued on the next page) 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric condition, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. A complete rationale must be provided for any opinion offered. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.