Citation Nr: 0000820 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 98-10 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased disability rating for major depressive disorder, currently rated as 50 percent disabling. 2. Entitlement to a compensable disability rating for bilateral hearing loss. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran had active service from September 1977 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in December 1997 and July 1998 by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama, (RO) which, in pertinent part, denied the benefits sought on appeal. Concerning the veteran's claims of entitlement to a disability rating in excess of 50 percent for major depressive disorder, and TDIU, a notice of disagreement (NOD) was received in February 1998, a statement of the case (SOC) was issued in March 1998, and a substantive appeal (SA) was received in May 1998. Regarding the veteran's claim for a compensable disability rating for bilateral hearing loss, a NOD was received in July 1998, a SOC was issued in September 1998, and a SA was received November 1998. The veteran appeared and testified before the undersigned member of the Board at a June 1999 hearing conducted at the RO. The issues of entitlement to a disability rating in excess of 50 percent for major depressive disorder, and for a total rating based on individual unemployability will be addressed in the remand portion of this decision. FINDING OF FACT The veteran's service-connected hearing loss is productive of no more than level II hearing loss, bilaterally. CONCLUSION OF LAW The criteria for entitlement to a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A person who submits a claim for benefits under the laws administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for a higher rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for a higher rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, VA audiological evaluations, the veteran's written statements and the June 1999 Travel Board hearing testimony. The Board does not know of any additional relevant evidence that is available. Therefore, no further assistance to the veteran with the development of evidence is required. Pursuant to a December 1991 RO rating decision, the veteran was granted service connection for bilateral hearing on the basis of a medical evaluation board contained in the service medical records, finding that the veteran had moderate hearing loss, bilaterally. The RO assigned a noncompensable disability rating based on that examination. Under the laws administered by VA, disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). VA audiological examinations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numerical designation of impaired efficiency (levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical row appropriate for the numeric designation for the ear having the better hearing and the horizontal column appropriate to the numeric designation level for the ear having the poorer hearing. For example, if the better ear has a numeric designation level of "V" and the poorer ear has a numeric designation level of "VII," the percentage evaluation is 30 percent, and the Diagnostic Code is 6103. See 38 C.F.R. §§ 4.85, Diagnostic Codes 6100. On VA audiological evaluation in April 1998, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 40 40 40 36 LEFT 30 55 60 60 51 Speech recognition scores, by the Maryland CNC wordlist, were 88 percent in the right ear and 84 percent in the left ear. The diagnosis was mild sensorineural hearing loss in the right ear, and moderate to moderately severe sensorineural hearing loss in the left ear. The Board has also considered the VA audiograms administered to the veteran in October 1997, January 1998, and July 1998. However, not only is it not clear that such examinations are complete, but the reported results suggest better hearing acuity than shown on the March 1998 examination. Accordingly, the Board views the March 1998 results as most beneficial to the veteran. Applying the criteria found in 38 C.F.R. § 4.85 at Table VI to the results of the veteran's March 1998 VA audiological evaluation yields level II hearing loss, bilaterally. Entering the category designations for each ear into Table VII produces a noncompensable disability evaluation under Diagnostic Code 6100. Accordingly, it is apparent that the veteran's bilateral hearing loss was properly assigned a noncompensable disability rating under Diagnostic Code 6100, and that a higher disability rating is not warranted. The Board has carefully reviewed and considered the veteran's statements and hearing testimony, and does not doubt the veteran's contention that he suffers from bilateral hearing loss. Indeed, the medical evidence shows that the veteran is currently diagnosed with bilateral hearing loss. However, the bilateral hearing loss experienced by the veteran simply does not meet the standards for a compensable disability rating. The Board finds, as did the RO, that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that his service-connected bilateral hearing loss has resulted in marked interference with his employment or necessitated frequent periods of hospitalizations. Therefore, in the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a compensable disability rating for bilateral hearing loss is not warranted. The appeal is denied to this extent. REMAND The Board notes that the veteran claims he receives Social Security disability benefits, as reflected by his Board hearing testimony and in other documents contained in the claims file. The Board observes that the claims file includes a short, unsigned, and undated document entitled "Explanation of Determination", that appears to be from the Social Security Administration (SSA), stating that the veteran is disabled, effective July 9, 1996, based on evidence showing the veteran was unable to work because of facial paralysis, depression, and anxiety. However, it does not appear that all pertinent SSA administrative and medical records have been obtained. The Board points out that although SSA administrative decisions and regulations are not binding on VA or the Board, findings made by the SSA regarding the existence of a total and permanent disability and resulting unemployability are relevant to determining whether TDIU is applicable under VA laws and regulations, and thus must be considered. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Additionally, with regard to the veteran's claim for a disability rating in excess of 50 percent for service- connected major depressive, such SSA records are also pertinent as the veteran appears to have indicated that his SSA award is based in large part on depression. Further, the record includes references to the veteran's participation in a VA vocational rehabilitation program. All such records should be associated with the claims file as they are relevant to the total rating issue and may be relevant to the increased rating for depressive disorder issue as well. In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. Any VA medical records (not already in the claims files) documenting continuing treatment for any of the veteran's service-connected disabilities should be obtained and made of record. Additionally, the veteran's vocational rehabilitation file should be associated with the claims files. 2. The RO should contact the SSA and obtain copies of the veteran's SSA records, including all administrative decisions and supporting documentation, such as medical examinations and psychiatric evaluations, that are relevant to any SSA adjudication. 3. The veteran should be scheduled for a comprehensive VA psychiatric examination to evaluate the severity of his service- connected major depression. The examination should be in compliance with the Diagnostic and Statistical Manual of Psychiatric Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), including the assignment of a Global Assessment of Functioning Score (GAF). The claims file must be made available to, and be reviewed by, the examiner in connection with the examination. All tests and studies deemed necessary should be accomplished, and all psychiatric findings should be reported so as to allow for application of pertinent rating criteria. 4. After completion of the above, and after any additional development deemed necessary by the RO, the RO should review the expanded record and determine whether the claims can be granted. The veteran and his representative should be furnished an appropriate supplemental statement of the case as to any issue for which the full benefit sought is not granted. After affording the veteran and his representative an opportunity to respond, the case should be returned to the Board for appellate review. The purpose of this remand is assist the veteran with his claims. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ALAN S. PEEVY Member, Board of Veterans' Appeals