Citation Nr: 18160545
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-37 296
DATE:	December 27, 2018
ORDER
As new and material evidence sufficient to reopen the previously denied claim for service connection for a hepatitis C has been received, the application to reopen is granted.
Entitlement to a compensable rating for service-connected bilateral hearing loss from February 14, 2012 is denied.
REMANDED
Entitlement to service connection for Hepatitis C is remanded.
Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded.
Entitlement to an initial rating in excess of 50 percent for service-connected PTSD is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU)
FINDINGS OF FACT
1. In a rating decision dated in March 2005, the RO denied the Veteran’s claim for service connection for hepatitis C on the basis that the evidence did not show an in-service diagnosis of hepatitis C, and there was no evidence that the Veteran was exposed to hepatitis C via blood products or wounds; the Veteran did not appeal this decision or submit new evidence within one year of the denial.
2. Evidence received since the March 2005 RO decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hepatitis C.
3. At worst, the Veteran has Level I hearing loss in the right ear and Level I hearing loss in the left ear
CONCLUSIONS OF LAW
1. The March 2005 rating decision denying service connection for hepatitis C is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103.
2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for hepatitis C has been submitted; the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
3. The criteria for a compensable evaluation for bilateral hearing loss, from February 14, 2012, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1970 to February 1972.
The Board has combined the claim for an increased rating for service-connected left ear hearing loss, received on February 14, 2012, with the Veteran’s claim for an increased rating for bilateral hearing loss, also received February 14, 2012, as the appellate period for both claims is identical.  
The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, in November 2016, a vocational expert wrote that the Veteran’s disabilities resulted in the Veteran’s unemployability.  As the evidence suggests that the Veteran is unemployable due to symptoms of his disabilities, the issue of entitlement to a TDIU has been raised.
 New and Material Evidence
The Veteran’s claim for service connection for hepatitis C was denied in a March 2005 rating decision.  The RO determined that the evidence did not show an in-service diagnosis of hepatitis C and there was no evidence that the Veteran was exposed to hepatitis C via blood products or wounds.  The Veteran did not appeal this decision or submit new evidence within one year of the denial.  The March 2005 decision thereby became final. 
Since that final decision, the Board finds that the Veteran has submitted new and material evidence.  Specifically, the Veteran stated in March 2013 that he contracted hepatitis C from air gun inoculation shots.  The Board finds that the newly submitted evidence reasonably raises the possibility the Veteran was exposed to hepatitis C via blood products.  Because new and material evidence has been submitted, the Board will reopen the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim).  
Increased Rating- Bilateral Hearing Loss 
The Veteran asserts he is entitled to a compensable rating for his hearing loss.  As an initial matter, the Board notes the claim for the increased rating was received on February 14, 2012.  Therefore, the relevant temporal focus for this appeal is from February 14, 2011, one year prior to the date of receipt for the claim.  38 C.F.R. § 3.400.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.
The Veteran’s bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 
In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 
VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (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 the pure tone decibel loss.  The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level “V” and the poorer ear had a numeric designation of Level “VII” the percentage evaluation is 30 percent.  See 38 C. F. R. § 4.85. 
Regulations also provide that, in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately. 38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral
In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable evaluation for bilateral hearing loss.
The Veteran underwent an audiological examination in November 2012, however the examiner found the Veteran’s responses to be unreliable and not consistent with audiological findings after repeated instructions.  The examiner noted that the Veteran did not have difficulty in conversing with the examiner.  It was ultimately concluded that the results were not adequate for rating purposes.
During a July 2016 audiology examination, an audiogram revealed pure tone thresholds, in decibels, as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	15	15	40	75	70
LEFT	15	15	40	65	70

The average purteone threshold was 50 decibels for the right ear and 48 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.  
During an August 2018 audiology examination, an audiogram revealed pure tone thresholds, in decibels, as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	10	10	40	75	70
LEFT	10	15	45	65	65

The average purteone threshold was 49 decibels for the right ear and 48 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 95 percent in the right ear and 94 percent in the left ear.
The audiometric findings for both examinations equate to Level I hearing loss in the right and left ears.  See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran’s bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.  
The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.  However, the audiological reports do not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear.  Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable.  See 38 C.F.R. § 4.86(a), (b).
There are no other audiological evaluations of record.  There are also no other audiometric findings included in the post-service treatment records that would warrant a higher rating.  
The Board has also considered the Veteran’s lay assertions regarding his diminished hearing.  However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results.  See Lendenmann; Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017).  It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  As such, a higher evaluation is not warranted.
 
REASONS FOR REMAND
1. Entitlement to service connection for Hepatitis C is remanded.
The Board finds that a new examination is needed for the Veteran’s service connection claim.  The August 2016 examiner noted that the Veteran was diagnosed with hepatitis C in 2009.  An April 1997 medical record reflects that the Veteran had been diagnosed with hepatitis C well before 2009.  As the August 2016 VA examiner’s statement is factually, inaccurate, a new examination is warranted.
2. Entitlement to service connection for ED, to include as secondary to service-connected PTSD is remanded.
The Board notes that the Veteran has not been afforded a VA examination with respect to his current claim for service connection for ED.  VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017).  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  
Here, the Veteran’s June 2015 VA treatment records indicate that he is being treated for ED and has asserted that this condition is due to a service-connected condition; however, there is insufficient evidence of record to decide the claim.  Consequently, remand for an examination and etiology opinion is warranted.  See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006).
3. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD from February 10, 2012 is remanded.
The Veteran and his representative indicated that the Veteran’s PTSD has worsened since his last VA examination, which occurred in October 2012, over 6 years ago.  See December 2016 Correspondence.  The Board finds that, given the Veteran’s assertion that of a worsening, a more recent examination is warranted to accurately assess the current severity of this disability.  Snuffer v. Gober, 10 Vet. App. 400 (1997).
4. Entitlement to a TDIU is remanded.
With regard to the TDIU claim, it is inextricably intertwined with the Veteran’s increased rating and service connection claims. The Board will defer adjudication of the TDIU claim until the development deemed necessary for the claim has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998).
The matters are REMANDED for the following action:
1. Obtain any additional, relevant VA or private treatment records and associated them with the electronic claims folder. 
2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hepatitis C.  The claims file should be made available to the examiner for review in connection with the examination.  
Based on review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or more) that the current hepatitis C had its onset in or is related to service.
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to, to Veteran’s lay statement of contracting hepatitis C through air gun inoculation shots. 
The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
3. Schedule the Veteran for a VA examination to determine the nature and etiology of his ED.  The claims folder must be made available to the examiner for review in connection with the examination.  The examination report should reflect that the claims file was reviewed, including any newly associated medical records.
a)	With regard to ED, the examiner should state whether it is at least as likely as not (a 50 percent probability or more) that such a disability began in service, was caused by active service, or is otherwise related to active service.  
b)	The examiner should also opine as to whether it is at least as likely as not (a 50 percent probability or more) that such a disability is etiologically related to or aggravated by the Veteran’s PTSD.  
The examiner is advised that the Veteran is competent and credible to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions.
Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.
4. Schedule an examination with the appropriate examiner to determine the current severity of the Veteran’s PTSD.  The examination should address all symptoms and occupational and social impairment. The electronic claims file must be available to the examiner, and the examiner must specify in the examination report that these records were reviewed.
The examiner is asked to discuss the symptoms of the Veteran’s PTSD throughout the entire appellate period, from February 14, 2012 onwards.
5. After any necessary development and readjudication of the increased-rating claim and service-connection claims, readjudicate the TDIU issue remaining on appeal.

 
T. BERRY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Gandhi, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.