Citation Nr: 0003471 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 98-04 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 40 percent disabling. 2. Entitlement to an increased evaluation for tinnitus, currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied increased ratings for bilateral hearing loss, tinnitus, PTSD, and denied entitlement to TDIU benefits, based on no new and material evidence being submitted to reopen the claims. The issues of entitlement to an increased rating for PTSD and entitlement to a total rating based on individual unemployability will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran currently manifests a four frequency puretone threshold average of 75 decibels in the right ear and 64 decibels in the left ear, with speech recognition scores of 76 percent in the right ear and 70 percent in the left ear. 2. The veteran's tinnitus is manifested by high-pitched chirping, but causing no additional pathology. 3. The veteran's service connected disabilities are bilateral hearing loss, evaluated as 40 percent disabling; tinnitus, evaluated as 10 percent disabling; and PTSD, evaluated as 30 percent disabling. The combined disability rating is 60 percent. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.85-4.87, Diagnostic Code 6100 (1998 & 1999). 2. The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. §§ 3.321(b)(1), 4.1-4.14, 4.85, 4.87, Diagnostic Code 6260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased ratings A person who submits a claim for benefits under a law administered by the 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) (West 1991). 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 an increased 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 claims for increased ratings are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has presented a well grounded claim, the VA has a duty to assist the claimant in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). 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. Therefore, no further assistance to the veteran with the development of evidence is required. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). The Board reviews the extent to which a service-connected disability adversely affects the veteran's ability to function under the conditions of ordinary daily life. The Board then assigns a rating which, as far as practicable, is based upon the extent to which the current disability impairs the veteran's earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more closely the criteria required for that evaluation. Otherwise, the Board will assign the lower evaluation. 38 C.F.R. § 4.7. The Board recognizes that the veteran's disabilities may require rerating in accordance with changes in his condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. That nothwithstanding, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). a. Bilateral hearing loss The standards for rating impairment of auditory acuity are set forth at 38 C.F.R. §§ 4.85-4.87. The Board observes that, 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiological examinations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. The horizontal lines in Table VI (in 38 C.F.R. § 4.87) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical 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 horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.87) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical 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(b), 4.87, Diagnostic Codes 6100-6110 (1998 & 1999). By regulatory amendment effective June 10, 1999, changes were made to the schedular criteria for evaluation of hearing loss. See 64 Fed. Reg. 25208, 25209 (1999). Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Board is therefore required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased evaluation for the veteran's bilateral hearing loss is warranted. The effective date rule established by 38 U.S.C.A. § 5110(g), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. Id.; Rhodan v. West, 12 Vet. App. 55, 57 (1998). The veteran was afforded a VA audiological evaluation in January 1989, at which time puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 50 90 95 LEFT 20 20 30 90 90 Speech audiometry revealed speech recognition ability of 50 percent in the right ear and of 56 percent in the left ear. Based on the January 1989 Audiological evaluation, the veteran's rating was increased to 40 percent. A VA audiological examination was conducted in March 1997, at which time puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 70 95 100 LEFT 30 30 40 90 95 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 70 percent in the left ear. The veteran's chief complaint was decreased hearing bilaterally, worse in the right ear. He indicated that he had the most difficulty when communicating in the presence of background noise. The veteran reported that he occasionally got ear infections bilaterally. Otoscopic examination was unremarkable and pure tone testing indicated a mild sloping to profound sensorineural hearing loss bilaterally. Word recognition was fair bilaterally and tympanometry indicated normal middle ear function and ipsilateral acoustic reflex thresholds were present at 500 and 1,000 Hz in both ears. Transient evoked otoacoustic emissions were consistent with pure tone test results in both ears. With the exception of 20 dB drop at 1,000 and 2,000 Hz in the right ear pure tone test results that day were within test re-test variability of results obtained here in 1988 and in 1990. The examiner noted that test conditions during the evaluation were quiet and the patient reliability was considered fair. The audiologic results did not indicate a problem requiring medical follow-up at that time. The VA Ear Disease Examination conducted in March 1997 showed normal auricle and exernal canal showed no evidence of any ear disease present. Tympanic membranes were normal bilaterally and moved well to the pneumatic otoscope. The tympanum was normal. The mastoid showed no evidence of any active ear disease and there was no infectious disease of the middle or inner ear. The examiner noted that the ear disease that the veteran has was not affecting any other function such as balance. The diagnosis was hearing loss, sensorineural, mild sloping to profound, bilaterally with fair word recognition bilaterally. Applying both former and the revised criteria found in 38 C.F.R. § 4.87 at Table VI to the veteran's March 1997 examination results yields a numerical designation of V for the right ear (between 74 and 81 percent average puretone decibel hearing loss, with between 76 and 82 percent speech discrimination); and designation V for the left ear (between 58 and 65 percent average puretone decibel hearing loss, with between 68 and 74 percent speech discrimination). Entering the category designations for each ear into Table VII produces a disability percentage evaluation of 20 percent, under Diagnostic Code 6100 under both former and revised criteria. The RO noted in the April 1997 VA examination that although the results of the March 1997 examination showed an evaluation of 20 percent, since sustained improvement had not been shown, the 40 percent evaluation would be continued for 12 months. A VA examination was to be scheduled at that time to determine if sustained improvement would be shown; however, an examination was not scheduled. The Board finds that the veteran continues to be evaluated at 40 percent for his bilateral hearing loss even though the March 1997 examination showed findings more commensurate with an evaluation of 20 percent. Based on the medical evidence, an evaluation in excess of 40 percent for the veteran's bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and this aspect of the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). b. Tinnitus The veteran was granted service connection for tinnitus on the basis of reports of acoustic trauma during service and VA examination reports confirming the presence of tinnitus. In a March 1997 VA examination, the veteran reported the tinnitus as a high pitched chirping which was very aggravating. The veteran is currently assigned a 10 percent disability rating for tinnitus, which is evaluated pursuant to 38 C.F.R. § 4.87a, Diagnostic Code 6260. Under the applicable schedular criteria, a 10 percent rating is assigned for persistent tinnitus as the result of head injury, concussion, or acoustic trauma. There is no disability rating in excess of 10 percent for tinnitus due to acoustic trauma and no indication that the veteran's tinnitus has caused additional pathology or an exceptional or unusual disability picture such that consideration of an extra-schedular rating is warranted in accordance with the procedures set forth in 38 C.F.R. § 3.321(b)(1) (1999). See Bagwell v. Brown, 9 Vet. App. 157 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Accordingly, as the veteran has attained the maximum schedular rating available for tinnitus, an increased disability rating is denied. ORDER Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss is denied. Entitlement to an evaluation in excess of 10 percent for tinnitus is denied. REMAND Initially, the Board finds that the claims for an increased evaluation for PTSD and for TDIU are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he is found to have presented claims which are plausible. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). During his March 1997 VA examination, the veteran reported experiencing flashbacks every other night, hyperarousal and acute startle response, he avoided crowds and people. He recreates generally by himself or with one friend with whom he fishes. He spends most of his time around the house and also spends time with raising the child of his daughter. The examination showed the veteran to be alert and oriented to all spheres and was well groomed, neatly dressed, well nourished. His behavior was generally calm, although he became more emotional when discussing events related to Vietnam. The veteran was able to relate well with the interviewer. The veteran reported a depressed and anxious mood, although the examiner noted that affect during the interview showed a wide range, and affect was appropriate to mood. The patient denied suicidal or homicidal ideation in the interview. He did not report some thoughts, but a history of attempts was noted. A history of alcohol abuse and its continuance was noted. Intelligence appeared to be within the average range and judgment was good and insight was fair. The veteran reported no auditory or visual hallucinations. The diagnosis was Axis I PTSD, chronic, history of alcohol abuse; Axis III tinnitus; Axis IV unemployed, difficulties in family relationships with daughter; Axis V Global Assessment of Functioning (GAF) score of 65, noting the veteran was unable to work, but generally was functioning well with meaningful interpersonal relationships. Although the examiner noted in Axis V that the veteran was unable to work, it is unclear whether his determination is based on the veteran's PTSD or other nonservice connected factors. Especially in light of the fact that the examiner assessed a 65 GAF score and indicated that the veteran was generally functioning well with meaningful interpersonal relationships. A March 1997 Social and Industrial Survey conducted by a VA social worker indicated that the veteran would be recommended for a Vocational Rehabilitation evaluation. Psychologically the social worker believed he could handle employment, but noted with the veteran's back and hearing problems she did not believe gainful employment was feasible. The Board notes that the veteran was found to be totally disabled by the Social Security Administration for a combination of his service connected and nonservice connected disabilities. In reviewing the evidence pertinent to the veteran's PTSD claim, the Board notes that such evidence is unclear as to the degree in which the veteran's PTSD affects his ability to work. In addition, the disposition of the increased rating issue could potentially affect the resolution of the issue of entitlement to TDIU benefits. As such, the Board will also REMAND the TDIU claim to the RO for consideration following the requested development for the increased rating claim. In light of the foregoing, and in order to ensure that all due process requirements are satisfied, this appeal is REMANDED to the RO for the following: 1. The RO should schedule the veteran for a psychiatric evaluation in order to assess the severity of his service connected PTSD. The claims folder and a copy of this REMAND must be made available to and reviewed by the examiner. The examiner is requested to note on the examination report whether the claims folder was received. All pertinent tests and studies must be completed. If more than one disorder is diagnosed, the examiner is requested to distinguish, if possible, the symptomatology attributable to the service connected PTSD and other psychiatric disorders, including substance abuse. If it is impossible to make such a distinction, the examiner should so state. The examiner is requested to provide an opinion as to the veteran's current functioning and identify the conditions which limit his employment opportunities. Distinctions between service and nonservice connected disorders should be noted. The examiner should assign a Global Assessment of Functioning (GAF) score. In addition, if possible, the examiner should specifically express his opinion as to whether the PTSD manifestations preclude the veteran from obtaining or retaining any form of substantially gainful employment. 2. When the RO is satisfied that the record is complete and that all requested actions have been accomplished, the issue of an increased rating for PTSD should be adjudicated on the basis of all relevant evidence of record. The RO should then adjudicate the veteran's TDIU claim. If any determination remains adverse to the veteran, the veteran and his representative should be furnished an appropriate supplemental statement of the case. The record should then be returned to the Board for further appellate review. The purpose of this remand is to ensure a complete record for appellate review and to assist the veteran with the development of evidence in connection with his claim. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. The appellant has 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). WARREN W. RICE, JR. Member, Board of Veterans' Appeals