Citation Nr: 18160394
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 12-14 436A
DATE:	December 27, 2018
ORDER
Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied.
Entitlement to a compensable rating for bilateral hearing loss from November 15, 2010 to December 19, 2011, is denied.
Entitlement to a 20 percent rating for bilateral hearing loss from December 20, 2011 to July 23, 2017, is granted, subject to the laws and regulations governing the payment of monetary awards.
Entitlement to a rating in excess of 10 percent for bilateral hearing loss since July 24, 2017, is denied.
Entitlement to total disability based individual unemployability (TDIU) is denied.
FINDINGS OF FACT
1. There is no competent evidence to corroborate an in-service non-combat stressor causing the Veteran’s PTSD.
2. From November 15, 2010 to December 19, 2011, the most probative evidence indicates the Veteran’s hearing loss was manifested by Level III in the right ear and Level III in the left ear, at worst.
3. From December 20, 2011 to July 23, 2017, the most probative evidence indicates the Veteran’s hearing loss was manifested by Level IV in the right ear and Level VI in the left ear, at worst.
4. Since July 24, 2017, the most probative evidence indicates the Veteran’s hearing loss was manifested by Level II in the right ear and Level VIII in the left ear, at worst.
5. The evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation consistent with his education and occupational experience by reason of his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for service connection for PTSD have not been satisfied.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
2. The criteria for a compensable rating for bilateral hearing loss from November 15, 2010 to December 20, 2011 have not been satisfied.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 
3. The criteria for a 20 percent rating for bilateral hearing loss from December 20, 2011 to July 23, 2017 have been satisfied.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100.
4. The criteria for a rating in excess of 10 percent for bilateral hearing loss since July 24, 2017 have not been satisfied.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 
5. The criteria for TDIU have not been satisfied.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1971 to December 1972.
This matter is before the Board of Veterans’ Appeals (Board) on appeal of January 2010 and August 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).
In February 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the record.
In August 2016, the Board remanded the case for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
Service Connection
Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f).
The Veteran filed claims for service connection for various mental health disabilities in September 2009, including PTSD.  He was granted service connection for generalized anxiety disorder (GAD) with alcohol use disorder in sustained remission in an August 2018 rating decision.  There is no prohibition against a veteran being service-connected for more than one diagnosed psychiatric disorder.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009).
In July 2017 a VA examiner diagnosed the Veteran with PTSD.  While the Veteran has identified multiple possible stressors, the examiner found that the only stressor identified by the Veteran that would meet the criteria for a diagnosis of PTSD was the Veteran’s report that a friend was injured in an accident.  It is noted that another claimed stressor, related to a hernia surgery, was considered in the award of service connection for generalized anxiety disorder, which is the mental health disorder that the examiner felt caused the most limitation and had the most affect on the Veteran.  
Regarding the friend being injured in an accident, the Veteran reports that while he served as a military policeman (MP) another MP pulled over a vehicle and a drunk driver rear ended the MP’s car pinning him against the first car.  The Veteran alleges he was one of those who responded and saw the MP as well as heard him scream from pain.  At a July 2017 VA examination, the Veteran stated he knew the MP but did not know what happened to him.  
No information or documentation has been provided that corroborates the stressor of witnessing the injured MP.  38 C.F.R. § 3.304(f)(5).  The Veteran was told he needed to provide details to allow VA to corroborate the incident in a September 2009 letter, including completing VA Form 21-0781, which asks for the information needed to corroborate non-combat stressors.  To date, the Veteran has not provided any pertinent information such as the name of the other MP, the approximate date, etc.  A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107(a), and the Veteran was clearly advised of the need to submit evidence in support of his claim, but he has not done so.  If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  As there is no verification of the only alleged in-service stressor sufficient to result in PTSD, the claim for service connection for PTSD must be denied.  
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran’s bilateral hearing loss has been service connected since November 15, 2010.  The RO determined that the hearing loss was noncompensable in the August 2011 rating decision.  In an August 2018 rating decision, the RO awarded a 10 percent rating for the Veteran’s bilateral hearing loss, effective July 24, 2017.  At all relevant times, the Veteran contends his hearing loss disability is more severe than rated
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 speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from service-connected defective hearing, the rating 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, Diagnostic Code 6100.  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).
An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies is 55 decibels or more.  In that situation, 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.  38 C.F.R. § 4.86(a).  Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be considered separately.  38 C.F.R. § 4.86(b).
Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).
1. Entitlement to a compensable rating for bilateral hearing loss from November 15, 2010 to December 19, 2011 
In an April 2011 VA examination, the Veteran’s hearing acuity was evaluated with puretone thresholds decibels of:
 	 	 	HERTZ	 	 
 	1000	2000	3000	4000	Average
RIGHT	 25	50	80	90	61
LEFT	 35	55	85	85	65

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 84 percent in the left ear. The Veteran reported hearing difficulties causing poor social interactions.  
Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III hearing loss in the right ear and Level III hearing loss in the left ear.  Where hearing loss is at Level III in one ear and Level III in the other, a noncompensable rating is assigned under Table VII.  The April 2011 audiogram results do not establish the requisite criteria for application of Table VIA.  See 38 C.F.R. §§ 4.85, 4.86.
As the assigned noncompensable evaluation reflects the actual degree of impairment shown since the date of the grant of service connection, November 15, 2010 to December 19, 2011, for the Veteran’s bilateral hearing loss, the preponderance of the evidence is against a compensable rating for hearing loss during this period.
2. Entitlement to a compensable rating for bilateral hearing loss from December 20, 2011 to July 23, 2017
In a December 20, 2011 VA examination, the Veteran’s hearing acuity was evaluated with puretone thresholds decibels of:
 	 	 	HERTZ	 	 
 	1000	2000	3000	4000	Average
RIGHT	 30	60	75	90	64
LEFT	 45	60	80	90	69

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 72 percent in the left ear.  The Veteran had hearing difficulties, especially understanding conversations with background noise.  The VA examiner also mentioned decreased concentration, inappropriate behavior, poor social interactions and difficulty following instructions.  
Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IV hearing loss in the right ear and Level VI hearing loss in the left ear.  Where hearing loss is at Level IV in one ear and Level VI in the other, a 20 percent rating is assigned under Table VII.  The December 20, 2011 audiogram results do not establish the requisite criteria for application of Table VIA.  See 38 C.F.R. §§ 4.85, 4.86.
Accordingly, the Board assigns a 20 percent rating effective December 20, 2011, the date establishing the Veteran’s hearing loss warrants a 20 percent rating.  38 C.F.R. § 3.400. 
3. Entitlement to a rating in excess of 10 percent for bilateral hearing loss since July 24, 2017
In a July 24, 2017 VA examination, the Veteran’s hearing acuity was evaluated with puretone thresholds decibels of:  
 	 	 	HERTZ	 	 
 	1000	2000	3000	4000	Average
RIGHT	 45	70	80	90	71
LEFT	60	75	95	105	84

Speech audiometry revealed speech recognition ability of 95 percent in the right ear and 95 percent in the left ear.  The Veteran reported being annoyed with his hearing difficulties.  He also turns up the volume on his television, which disturbs the rest of his family.
Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level III hearing loss in the left ear.  Where hearing loss is at Level II in one ear and Level III in the other, a noncompensable rating would normally be assigned under Table VII.  The Board notes, however, that the July 24, 2017, audiogram results do not establish the requisite criteria for application of Table VIA for the right ear, but Table VIA may be used for the left ear as it meets the criteria.  See 38 C.F.R. §§ 4.85, 4.86.  Applying the results to table VIA results in a finding of Level VIII for the left ear. The finding of level VIII hearing loss in the left ear under Table VIA is more favorable than a finding of level III under Table VI.  Therefore, the finding of level VIII hearing loss in the left ear is used for rating the Veteran’s bilateral hearing loss.  38 C.F.R. § 4.86.  Where hearing loss is at Level VIII in one ear and Level II in the other, a 10 percent rating is assigned under Table VII.  
Therefore, as the ten percent evaluation assigned by the RO reflects the actual degree of impairment shown since July 24, 2017, for the Veteran’s bilateral hearing loss, the preponderance of the evidence is against a higher rating for hearing loss during this period.  
The Board acknowledges that the Veteran believes that at all relevant times, the severity of his hearing loss is worse than the assigned ratings.  None of the VA examinations or other evidence of record give rise to any audiological findings that would entitle him to higher ratings for his bilateral hearing loss under 38 C.F.R. § 4.85 or 38 C.F.R. § 4.86 than those just discussed.
To the extent the VA examiners noted decreased concentration, inappropriate behavior, poor social interactions and difficulty following instructions related to the hearing loss disability, the Board finds this cannot serve as the basis for an extra-schedular rating as these symptoms overlap with the Veteran’s service-connected generalized anxiety disorder symptoms and assignment of an extra-schedular hearing loss rating based upon them would result in impermissible pyramiding.  38 C.F.R. §§ 3.321(b), 4.14, 4.130, General Rating Formula for Mental Disorders.  Even if these symptoms could be considered, there is no indication that the amount of impairment from the hearing loss markedly interfered with employment.  Instead, the VA examiner in December 2011 stated that the hearing loss affected employment in that the Veteran was assigned different duties.  The assignment of different duties does not rise to the level of marked interference with employment.  
TDIU
VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16.  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the Veteran from securing or following a substantially gainful occupation. 
Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment shall not be considered substantially gainful employment.
The Veteran is service connected for generalized anxiety disorder with alcohol use disorder in sustained remission, hearing loss, tinnitus, and residuals of right inguinal hernia, to include a scar.  The residuals of right inguinal hernia and scar are rated at a noncompensable (0 percent) level and there is no indication of any significant effects on employment caused by these disabilities.  Regarding the service-connected psychiatric disorder, a July 2017 examiner noted anxiety, suspiciousness, sleep impairment, impairment of short- and long-term memory, and difficulty in understanding complex commands.  The examiner found this resulted in occupational and social impairment with occasional decrease in work efficiency and ability to perform occupational tasks, although generally functioning satisfactorily.  
Regarding the hearing loss and tinnitus, the examiner in April 2011 opined that the hearing loss and tinnitus would affect employment in that the Veteran would have hearing difficulty and poor social interactions.  The December 2011 examiner found that the Veteran’s hearing loss would make it difficult for him to follow conversations and he would have even more difficulty when there is background noise.  The examiner noted that any type of employment that required a lot of conversation would be difficult and that employment that did not depend on communication would be a position in which he could function more easily.  The July 2017 examiner noted the Veteran’s reports that the hearing loss and tinnitus affected his daily life in that it was annoying, he turns the television up too loud, and that it is hard for him to hear and understand.  
The Veteran’s past employment is somewhat unclear as he has not returned a VA Form 21-8940 as requested, which would have provided information to VA regarding employment, education, etc.  In any event, other evidence of record suggests that during service he was trained as a military policeman, he worked as a postal carrier for 40 years before retiring, and at least as of July 2017 was currently employed as an armed security guard in a residential neighborhood.  He also reported volunteering as a mentor with veterans in the court system.  Notably, at a July 2017 examination the Veteran described his security job as his “sanctuary to get away from the house.”  The Veteran has reported getting good grades in school and being drafted in his third year of college where he was studying engineering.  
The Veteran testified that he works a full, 40-hour week.  He also testified that due to his hearing loss, he cannot always hear electronic communications such as a walkie-talkie.  His co-workers assist him with his communication difficulties.  The Veteran did not testify and there is no evidence in the record to establish that his mental health disability significantly affected his employment as a security guard, and the Board again notes the Veteran described this job as being his sanctuary to get away from the house.  
Initially, the Board finds the Veteran does not qualify for TDIU as despite his disabilities he is still engaged in gainful employment which illustrates that he is employable.  His attorney argues that the fact his co-workers help him out with communication difficulties establish that he works in a marginal, sheltered environment which is not considered by VA to be substantially gainful employment.  See 38 U.S.C. § 4.16.  The Board disagrees.  The key question here, as argued by the Veteran and his attorney, is whether his employment should be considered “marginal” because it should qualify as a protected work environment (such as a family business or sheltered workshop), as referenced in 38 C.F.R. § 4.16(a).  If the evidence or facts reflect that a veteran is capable only of marginal employment, he is incapable of securing or following a substantially gainful occupation and is therefore entitled to TDIU if his service-connected disabilities are the cause of that incapability.  See Cantrell v. Shulkin, 28 Vet. App. 382, 387-88 (2017).
The Board recognizes that “protected environment” has not been defined by regulation.  Merriam-Webster’s Collegiate Dictionary offers several definitions of the word “protect,” but one that appears to be applicable in this inquiry is “to save from contingent financial loss.”  See Merriam-Webster’s Collegiate Dictionary, Eleventh Edition (2003).  “Contingent” can mean “likely but not certain to happen: possible.”  Id.  Thus, within the context of awarding a TDIU—a benefit specially meant to compensate those with earning capacity below the poverty threshold due to service-connected disabilities—a protected work environment exists when one’s employment is not based on merit alone, but rather is established to save the individual from likely financial loss.  In other words, a protected environment is an employment environment that would not exist, but for the willingness of the employer to hire and pay the employee for altruistic or personal reasons.  There is no indication that the Veteran’s employer has retained the Veteran for altruistic or personal reasons.  Instead, the evidence suggests the Veteran’s coworkers help him out when there are communication problems.  This does not constitute a protected work environment or otherwise show marginal employment.  
Even if the Veteran was found to only have marginal employment currently, a TDIU still would not be warranted.  Overall, his service-connected disabilities result in some trouble with communication, poor social interactions, and occupational and social impairment with occasional decrease in work efficiency and ability to perform occupational tasks.  The Veteran is clearly intelligent and able to learn new skills as he completed multiple years of college studying engineering and has been able to mentor veterans in the court system.  He also has demonstrated the ability to engage in a manual labor position as he served as a letter carrier for 40 years.  Notably, there are no significant physical limitations as a result of his service-connected disabilities.  There are a number of employment positions which would not involve a lot of communication or even interaction with others for which the Veteran is more than qualified.  
In sum, the Veteran has presented evidence of occupational limitation, not an inability to secure and maintain employment.  The Board finds that entitlement to TDIU is not established as the evidence is against a determination that the Veteran is unable to secure or to follow a substantially gainful occupation by reason of service-connected disabilities. 

 
Nathan Kroes
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Russell P. Veldenz, 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

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