Citation Nr: 1632901 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 10-22 602A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to a rating in excess of 40 percent for bilateral hearing loss from May 31, 2014 forward. 3. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned in July 2012. A hearing transcript is associated with the claims file. The Board previously considered this claim and remanded in October 2012. The Board notes that the file includes a statement of the case and a Form 9 substantive appeal on the issues of service connection for adjustment disorder, right knee disability, rotator cuff disability, right hip disability, and imbalance disability. In the February 2015 Form 9, the Veteran appears to be interested in a Board hearing. As such, the Board will not exercise jurisdiction on those claims at this time and allow the RO to seek clarification and schedule the Veteran for a hearing if necessary. The issues of a rating in excess of 40 percent for hearing loss and entitlement to TDIU is addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence does not show a compensable level of hearing loss prior to May 31, 2014; on May 31, 2014, the evidence shows hearing loss of Level VIII in the right ear and and Level VI in the left ear, with no exceptional patterns of hearing loss in either ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to May 31, 2014 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85-4.86, Diagnostic Code (DC) 6100 (2015). 2. The criteria for a 40 percent rating for bilateral hearing loss from May 31, 2014 forward have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85-4.86, Diagnostic Code (DC) 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In June 2009, prior to adjudication of his claim, the RO sent the Veteran a letter, providing notice that satisfied the requirements of the VCAA. The letter explained how ratings and effective dates would be assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, available medical records have been obtained and considered, including private records. VA provided examinations for the Veteran's hearing loss in September 2009, May 2010, February 2011, June 2012, January 2013, and May 2014. The Veteran asserted that the examinations were not appropriate for his type of hearing loss because they did not consider background noise. See 2010 DRO hearing. He further reported that the 2011 examiner would not answer his questions about ear blockage and that he felt the examiner copied the results of the prior examination. The examiners provided notes on subjective complaints, such as problems with background noise, and detailed and unique testing results with each evaluation. They addressed the appropriate rating criteria. Therefore, the Board finds the examinations appropriate for rating his disability. The Board has carefully reviewed the record and determines there is no additional development needed for adjudication. As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. II. Rating Analysis 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a puretone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85 and 4.86. First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. The Board reviewed the evidence and finds that the Veteran's hearing loss does not meet the criteria for a compensable rating prior to May 31, 2014 but meets the criteria for a 20 percent rating, but not higher, from May 31, 2014 forward. See 38 C.F.R. § 4.85. The evidence shows a change in hearing loss disability such that staged ratings are appropriate. See Hart, 21 Vet. App. 509-10. The evidence does not show hearing loss test results that qualify for disability compensation prior to May 31, 2014 but does show such results on May 31, 2014. The September 2009 examiner recorded left and right ear threshold averages 56.25 decibels with left ear speech discrimination as 94 percent and right ear as 96 percent. The May 2010 examination report shows speech discrimination as 92 percent in both ears. An August 2010 private record shows right and left ear threshold averages of 75 decibels. The private provider did not use the Maryland CNC test for speech discrimination. The February 2011 examiner recorded left ear threshold average as 56.25 decibels with 94 to 100 percent speech discrimination and right ear threshold average as 61.25 decibels with 94 to 100 percent speech discrimination. The June 2012 examination report shows right ear threshold average as 61 decibels with 92 percent speech discrimination and left ear threshold average as 58 decibels with 96 percent speech discrimination. July 2012 private treatment notes right ear threshold average as 67 decibels and left ear as 57 decibels. Again, the private treatment did not use Maryland CNC testing. The January 2013 VA examiner recorded right ear threshold average as 64 decibels with 92 percent speech discrimination and left ear threshold average as 66 decibels with 84 percent speech discrimination. A private record shows right ear threshold average as 69 decibels and left ear as 67 decibels with no speech recognition results in February 2013. Finally, the May 2014 VA examiner recorded right ear threshold average of 66 decibels with 56 percent speech discrimination and left ear threshold average of 60 decibels with 60 percent speech discrimination. The private evaluation results cannot be used to determine the Veteran's disability rating because those evaluations did not use the Maryland CNC speech recognition test, which is required by regulation. See 38 C.F.R. § 4.85(a). More importantly, the private threshold averages do not significantly differ from those recorded during VA examinations, so the VA evaluations are deemed valid and an accurate representation of disability. For the VA results, the September 2009 right ear threshold average and speech recognition combine for I in Table IV and the left ear results also yield I. See 38 C.F.R. § 4.86. The February 2011 right ear results combine for II in Table IV and left ear results combine for I. See id. June 2012 results also reveal II for the right ear and I for the left ear in Table IV. See id. The January 2013 right ear threshold average and speech recognition score combine for II in Table IV, while the left ear results yield III. See id. Lastly, the May 2014 right ear results combine for VIII and left ear results combine for VI in Table IV. See id. For the 2009 examination, two Roman numeral Is combine for a zero evaluation in Table VII. Similarly, the Roman numeral I and II from the 2011 and 2012 evaluations combine for a zero in Table VII, and the Roman numeral III and II from the 2013 examination also combine for a zero disability rating. See 38 C.F.R. § 4.86. As such, the evidence prior to May 2014 shows that the Veteran's hearing loss disability should be rated zero, or non-compensably. See id. However, the May 2014 results of VIII and VI combine for a 40 percent disability rating in table VII. See id. From May 31, 2014 forward, the evidence shows that the Veteran met the criteria for a 40 percent rating for hearing loss. See id. The record does not show additional appropriate testing beyond those discussed. The question of eligibility for a rating in excess of 40 percent is reserved for remand. The Board has considered the Veteran's statements that he has to have other repeat themselves, cannot hear well in situations with background noise, and has to have the volume of the television loud. See Hearings. He is competent to report these symptoms, and the Board also finds him credible as the statements on this point are detailed and consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the lay subjective reports of a more severe degree of disability, because they directly address the rating criteria for the Veteran's hearing loss. The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's hearing loss are fully contemplated by the schedular rating criteria. Specifically, the rating criteria address loss of hearing at five frequencies and speech discrimination. The Veteran did not report any other symptoms of this disability. As such, referral for consideration of an extra-schedular rating is not necessary at this time. See Thun, 22 Vet. App. at 115-16. ORDER A 40 percent rating for hearing loss from May 31, 2014 forward, but not before, is granted. REMAND The AOJ has not reviewed the results of the May 2014 VA examination since the last issuance of a supplemental statement of the case for hearing loss in December 2013. The AOJ should review this new evidence and adjudicate the issue of a rating in excess of 40 percent for hearing loss. With regard to TDIU, the VA examiner in January 2013 opined that although the Veteran had bilateral hearing loss, his word understanding was excellent for the right ear and good for the left. The examiner found that he was able to follow directions and answer all questions correctly during the examination. She concluded that the Veteran should be able to secure employment in a quiet setting with face-to-face contact. The May 2014 examination showed speech recognition scores worse than those referenced by the 2013 examiner. Additionally, the examiner did not consider the effects of the Veteran's service-connected flatfoot disability on employment. An addendum opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Consider all new evidence and adjudicate the issue of entitlement to a rating in excess of 40 percent for hearing loss. 3. Request that the Veteran provide information on the types of employment he has had in the past. 4. Thereafter, forward the claims file to a VA examiner to provide an opinion on the Veteran's employability and address the following: a. How would the Veteran's service-connected hearing loss, tinnitus, and flatfoot disability affect his functioning in a work environment? Specifically, what types of limitations would he likely experience? If any requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 5. Issue a supplemental statement of the case with consideration to the new evidence, and return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs