POSTTRAUMATIC STRESS DISORDER (PTSD)

D. MARTZ AMES · 2022 · Case ID: A22019206

MIXED

Summary

The Veteran, an Army Veteran who served from February 1967 to February 1969, appeals the denial of increased disability ratings for diabetes mellitus, bilateral lower extremity diabetic peripheral neuropathy, and bilateral hearing loss, while also seeking an initial rating for PTSD. The Board granted service connection for PTSD with a 70% rating, finding that the Veteran's symptoms, including obsessive rituals, difficulty adapting to stress, panic attacks, anxiety, depression, impaired impulse control, and memory loss, met the criteria for this rating. The Board noted that while symptoms worsened over time, they did not rise to the level of total occupational and social impairment required for a 100% rating, citing the Veteran's ability to maintain relationships and the logical nature of his thought processes. For diabetes, the Board denied an increased rating beyond 20%, finding that the Veteran's condition was managed by diet and hypoglycemic agents, and did not require regulation of activities or meet the criteria for higher ratings based on hospitalization frequency or weight loss. Similarly, the Veteran's bilateral lower extremity peripheral neuropathy, a complication of diabetes, was rated at 20% for each leg, consistent with moderate incomplete paralysis based on sensory findings and normal strength/reflexes. For bilateral hearing loss, the Board denied a compensable rating prior to March 2, 2020, based on audiometric testing yielding a noncompensable Level IV designation for the right ear and Level II for the left. However, from March 2, 2020, based on updated audiometric testing showing Level IV in both ears, the Board granted a 10% rating. The Veteran withdrew his appeal for an increased rating for tinnitus, which was dismissed.

Rationale

Symptoms met 70% criteria (obsessive rituals, difficulty adapting to stress); Did not meet 100% criteria (total occupational/social impairment); Maintained relationships, logical thought process

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200817-103979

Full Decision Text

Citation Nr: A22019206
Decision Date: 09/20/22 Archive Date: 09/20/22

DOCKET NO. 200817-103979
DATE: September 20, 2022

ORDER

Entitlement to an initial 70 percent disability rating for the Veteran's posttraumatic stress disorder (PTSD), is granted.

Entitlement to an initial disability rating in excess of 20 percent for the Veteran's diabetes is denied.

Entitlement to an initial disability in excess of 20 percent for the Veteran's right lower extremity diabetic peripheral neuropathy is denied.

Entitlement to an initial disability in excess of 20 percent for the Veteran's left lower extremity diabetic peripheral neuropathy is denied.

Prior to March 2, 2020, entitlement to an initial compensable disability rating for the Veteran's bilateral hearing loss is denied.

From March 2, 2020, entitlement to a disability rating in excess of 10 percent for the Veteran's bilateral hearing loss is denied.

Entitlement to an initial disability in excess of 10 percent for the Veteran's tinnitus disability is dismissed.

FINDINGS OF FACT

1. The Veteran's PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

2. The evidence of record shows that Veteran's diabetes is managed by a prescribed oral hypoglycemic agent and/or restricted diet.

3. The Veteran's right lower extremity diabetic peripheral neuropathy manifested as moderate incomplete paralysis.

4. The Veteran's left lower extremity diabetic peripheral neuropathy manifested as moderate incomplete paralysis.

5. Prior to March 2, 2020, at worst the Veteran had Level VI hearing loss in his right ear and Level II hearing loss in his left ear.

6. From March 2, 2020, the Veteran had at worst Level IV hearing loss in both ears.

7. In July 2022, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeal of the claim for an increased rating for tinnitus.

CONCLUSIONS OF LAW

1. The criteria for an initial rating of 70 percent, but no higher, for the Veteran's PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411.

2. The criteria for an initial disability rating in excess of 20 percent for the Veteran's diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.119, Diagnostic Code 7913.

3. The criteria for an initial disability rating in excess of 20 percent for the Veteran's right lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

4. The criteria for an initial disability rating in excess of 20 percent for the Veteran's left lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

5. Prior to March 2, 2020, 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. §§ 3.102, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100.

6. From March 2, 2020, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100.

7. The criteria for withdrawal of an appeal by the veteran have been met have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REAS
.85, 4.86, Diagnostic Code 6100.

7. The criteria for withdrawal of an appeal by the veteran have been met have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from February 1967 to February 1969.

A rating decision was issued under the legacy system in December 2018 and the Veteran submitted a timely notice of disagreement. In April 2020, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting an August 2020 VA Form 10182, Decision Review Request: Board Appeal, and he elected the Hearing docket.

In July 2022, the Veteran testified before a Veterans Law Judge (VLJ) and a transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the September 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

Increased Rating

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claims for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for all claims. Fenderson v. West, 12 Vet. App. 119 (1999).

1. PTSD

The Veteran's PTSD is rated under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

The Veteran received a VA examination in October 2018 for his PTSD. He had been married for over 30 years and had frequent contact with his children, grandchildren, and great-grant child. However, he did not do a lot of socializing. He preferred to stay at home alone. He experienced the following symptoms: depression mood, anxiety, panic attack that occurred weekly or less often, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty establishing and maintaining effective relationships, and difficulty adapting to stressful situations. The examiner noted that the Veteran's thought process was logical and goal directed, but rated his mood as dysphoric with flattened affect. The examiner also opined that the Veteran did not pose any threat of danger or injury to himself or others. The Veteran's disability was evaluated as causing occupational and social impairment with occasional decreases in work efficiency with intermittent episodes of inability to perform tasks.

In December 2019, the Veteran submitted multiple lay statements from his friends and family detailing some of his PTSD symptoms. They noted the Veteran's rapid mood swings and that he would become easily triggered and irritated. At family gatherings he would isolate himself from the group or become disinterested in conversations. His family also noted that he did not like being around crowds because of the noise and he would begin feeling anxious. His neighbor noted that his demeanor had changed and that he rarely came outside anymore. She also noted that because she worked the night shift, she would often see the Veteran outside at nighttime.

The Veteran received another VA examination in March 2020. He continued to report similar symptoms as noted in the previous VA examination. Additionally, the Veteran experienced mild memory loss, such as forgetting names, directions, or recent events. He continued to keep in contact with his family but did not socialize with friends. He denied having any suicidal or homicidal ideations. Like the previous examination, his thought process was logical, and his judgment and insight was fair. The examiner similarly opined that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily.

At his July 2022 Board hearing, the Veteran, his wife, and friend testified about his behavior. They described many of the symptoms previously noted in the lay and medical evidence of record. His wife noted that the Veteran had mood swings, was easily irritated, and did not sleep through the night. She also reiterated that he would isolate himself during family gatherings. The Veteran also engaged in obsessive rituals like repeatedly ensuring the house was locked. His friend also noted the Veteran did not trust anyone, had nightmares multiple times per week, and was easily angered. Later in July 2022, the Veteran's wife submitted a written statement. She stated that the Veteran struggled with mood swings and irritability in public and at home.

Based on the foregoing evidence, the Board finds an initial rating of 70 percent for the Veteran's psychiatric disability is warranted. The evidence of record shows that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating such as engaging in obsessive rituals and difficulty in adapting to stressful circumstances. Throughout the appeal period the Veteran also reported symptoms of panic
The Veteran also engaged in obsessive rituals like repeatedly ensuring the house was locked. His friend also noted the Veteran did not trust anyone, had nightmares multiple times per week, and was easily angered. Later in July 2022, the Veteran's wife submitted a written statement. She stated that the Veteran struggled with mood swings and irritability in public and at home.

Although the evidence shows an increase in the severity of the Veteran's symptoms over the appeal period, the functional impairment resulting from the Veteran's psychiatric disability does not rise to the severity required for a 100 percent rating because he does not have both total social and total occupational impairment. 38 C.F.R. § 4.7.

The evidence of record fails to show total occupational and social impairment. The Veteran retired from his job as a supervisor with Fresno Unified School District and there is nothing in the record to suggest his retirement was due to his PTSD. Furthermore, the Veteran has maintained a relationship with his spouse, children, and grandchildren. He has consistently reported that he did not like socializing, but as evidenced by the Board testimony he has maintained a social relationship. Additionally, the VA examiners opined that it was difficulty for the Veteran to maintain work and social relationships but did not find that his disability rendered him unable. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The medical and lay evidence of record does not show this level of social impairment.

Additionally, the medical evidence of record shows no probative evidence of symptoms similar to those in the 100 percent criteria. He does not have severe memory loss. His thought process was logical and coherent. Nor does the credible lay and medical evidence demonstrate gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time and place. On mental status examinations, the Veteran had adequate hygiene. There was no evidence of any cognitive impairment.

As such, the evidence does not support a finding of both total occupational and social impairment as required for a 100 percent rating. Accordingly, considering the evidence in totality, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the 70 percent disability rating. 38 C.F.R. § 4.7.

2. Diabetes

The Veteran' diabetes is rated under Diagnostic Code 7913, which provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet.

A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities.

A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.

A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018).

The Veteran received a VA examination in October
of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

The Veteran received a VA examination in October 2018. The examiner noted that his diabetes was managed by his prescribed hypoglycemic agent and a restricted diet. His disability did not require regulation of his activities as part of treatment. He had to visit his diabetic care provider for episodes of ketoacidosis and hypoglycemic reactions less than 2 times per month; however, he had not been hospitalized for these issues. Additionally, he did not have any unintentional weight loss or loss of strength because of his disability.

The Veteran's next VA examination was in March 2020. His disability continued to be managed with a restricted diet. He did not have any unintentional weight loss or loss of strength due to his disability. Like at the previous examination, he had to visit his diabetic care provider for episodes of ketoacidosis and hypoglycemic reactions less than 2 times per month. He had not been hospitalized for these issues. The examiner found that he did not require regulation of activities.

At his July 2022 Board hearing, the Veteran testified that while he was not currently taking insulin, he met with a nutritionist who suggested a restricted diet and exercise. Additionally, the Veteran reported feeling dizzy at times from low sugar when he would stand up. The Veteran's spouse also testified that he lost a lot of weight on his old diabetes medication.

The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007).

The medical evidence of record does not show that his disability required regulation of his activities. Throughout the appeal period, the Veteran's diabetes mellitus has been manageable by hypoglycemic agents and/or a restricted diet. The Board acknowledges that the Veteran testified that his diabetes limited his ability to walk or run far distances, but he was not told by a medical provider to regulate his activities. The Veteran does not possess the medical training necessary to opine that his diabetes management requires the regulation of his activities. See Kahana v. Shinseki, 24 Vet. App. 428, 433, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Additionally, while he experienced episodes of ketoacidosis or hypoglycemic reactions, these episodes did not require hospitalization or two or more monthly visits to a diabetic care provider. The Veteran's wife credibly testified to the Veteran's weight loss while on his previous diabetes medication. Nevertheless, like the Veteran's statements regarding regulation of activity, she does not have the requisite medical training to competently opine that he experienced unintentional weight loss because of his disability. Furthermore, the VA examiners of record both noted that the Veteran did not have unintentional weight loss and their medical opinion is afforded higher probative value. Accordingly, the evidence of record persuasively weighs against assigning a rating in excess of 20 percent for the Veteran's diabetes.

Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1).

The Veteran's bilateral lower extremity peripheral neuropathy is a complication from his diabetes. His right and left lower extremity disabilities are rated at 20 percent under Diagnostic Code 8520. Under Diagnostic Code 8520, which contemplates the sciatic nerve, moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants
100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1).

The Veteran's bilateral lower extremity peripheral neuropathy is a complication from his diabetes. His right and left lower extremity disabilities are rated at 20 percent under Diagnostic Code 8520. Under Diagnostic Code 8520, which contemplates the sciatic nerve, moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

In October 2018, the Veteran received a VA examination for his bilateral lower extremity peripheral neuropathy. For both his right and left lower extremity he had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. He had decreases sensation in his right lower leg/ankle and both foot/toes. His position sense, which tests sensation by grasping the great toe and asked about sensation, was decreased on both his left and right side. His vibration sensation was normal, but his cold sensation was decreased. He had normal strength, reflexes, gait, and there was no atrophy. The examiner rated his overall disability as moderate. He also reported pain in his lower legs with tingling, numbness, and difficulty with prolonged walking.

At his Board hearing the Veteran also testified that he experienced numbness in both of his legs.

The Board finds the Veteran's disability is appropriately rated at 20 percent in each lower extremity. Sensory symptoms were not noted aside from reports of moderate intermittent pain and all his sensory tests were rated as moderate. Furthermore, on other sensation tests, at worst his sensation was noted as decreased but not absent. It is reasonable to conclude that to be moderately severe, non-sensory symptoms would need to be present. Non sensory impairment can include symptoms such as "a reflex abnormality, [or] weakness or muscle atrophy." Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). The Veteran's strength, reflexes, and gait are normal during the appeal period. His symptoms are wholly sensory and so a 20 percent rating is the highest available. 38 C.F.R. § 4.124a. Therefore, in considering the evidence of record the Board finds that the Veteran's right and left lower extremity diabetic peripheral neuropathy are appropriately rated at 20 percent.

3. Bilateral Hearing Loss

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. The assignment of disability ratings for hearing impairment is 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).

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA
for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. The assignment of disability ratings for hearing impairment is 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).

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id.

Prior to March 2, 2020

At his October 2018 VA examination, the Veteran reported difficulty with conversational speech. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:

October 2018 HERTZ

1000 2000 3000 4000 Avg CNC

RIGHT 15 35 80 85 54 80%

LEFT 15 30 80 85 53 84%

Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. He did not have an exceptional pattern of hearing loss in either ear. Consequently, prior to March 2, 2020, entitlement to a compensable disability rating is not warranted.

In multiple lay statements the Veteran's family stated that it is hard for him to hear in crowds. Additionally, the Veteran stated that he feels that everyone had to yell so he can hear them. At his hearing, he testified that he still heard background noises with his hearing aids, and it was hard for him to hear people talk. He stated that he had to turn the volume up on the phone. The Veteran is competent to report difficulty with his hearing and his statements are credible; 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 he 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 most probative evidence of record persuasively weighs against the claim of entitlement to a compensable disability rating for hearing loss prior to March 2, 2020. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

From March 2, 2020

The Veteran received another VA examination in March 2020. He reported that it was hard for him to understand people talking. 38 C.F.R. §
compensable disability rating for hearing loss prior to March 2, 2020. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

From March 2, 2020

The Veteran received another VA examination in March 2020. He reported that it was hard for him to understand people talking. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000 Avg CNC

RIGHT 25 40 85 90 60 82%

LEFT 20 40 85 90 59 82%

Applying the results to Table VI, the findings yield a numeric designation of Level IV in both ears. Entering the resulting bilateral numeric designation of Level IV for both ears to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. He did not have an exceptional pattern of hearing loss. From March 2, 2020, the Veteran is entitled to a 10 percent disability rating for his bilateral hearing loss.

As noted previously, the Board considers the Veteran's credible report of hearing difficulty. At his Board hearing, the Veteran testified that his hearing aids were not working properly, and he feels like he can hardly hear anything when there is background noise. He also testified that he has to turn the volume up when using the phone. These symptoms are contemplated by the rating criteria. Doucette, 28 Vet. App. 366. The Board is bound to apply the VA rating schedule, which places the Veteran's disability at a 10 percent rating. Thus, the Board finds an increase higher than 10 percent based on the evidence of record is not warranted.

The AOJ assigned the date of the VA examination as the effective date for the 10 percent rating. This is the appropriate effective date since prior to the examination, it is not factually ascertainable when the disability increased in severity to allow for an earlier effective date. Swain v. McDonald, 27 Vet. App. 219, 224 n. 4 (2015).

4. Tinnitus

At his July 2022 hearing, the Veteran stated that he would like to withdraw his claim for an increased rating for tinnitus. The undersigned informed him that the appeal would be dismissed, and that he would need to file a new claim, and depending on when the claim was filed, the effective date of any future award could be impacted. The Veteran was asked if he understood the impact of a withdrawal of the appeal and whether he still wished to have it dismissed, and he stated that he did. Acree v. O'Rourke, 891 F.3d 1009 (2018).

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. The Veteran has withdrawn the claim of entitlement to an increased rating for tinnitus. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Brunot, 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.

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