Citation Nr: 1756030 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 13-21 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to an increased rating for traumatic arthritis of the lumbar spine (lumbar spine disability), rated as 10 percent disabling prior to August 4, 2016, and 20 percent disabling thereafter. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to June 1980 and November 1983 to September 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the electronic claims file. This case was previously before the Board in May 2016, when it was remanded for additional development. The issues of entitlement to an increased rating for a lumbar spine disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The average puretone threshold during a VA audiological evaluation in March 2011 was 54 decibels in the right ear and 51 in the left. Speech recognition scores were 80 percent in the right ear and 88 percent in the left. 2. The average puretone threshold during a VA audiological evaluation in June 2016 was 54 decibels in the right ear and 55 in the left. Speech recognition scores were 84 percent in the right ear and 76 percent in the left. CONCLUSION OF LAW The criteria for a compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has raised no issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board also finds there has been substantial compliance with its January 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In May 2016 VA requested that the Veteran identify any relevant recent private or VA treatment providers. To date, he has not responded. The Veteran's Social Security Administration disability records were associated with the claims file in May 2016. The Veteran was afforded VA audiological examination in June 2016. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 contends that his bilateral hearing loss disability is worse than contemplated by the assigned noncompensable rating and that a compensable rating is warranted. 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 (2017). 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 (1000, 2000, 3000, and 4000 Hertz) 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) (2017). 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). Initially, while the Veteran's private treatment records note that he had progressive hearing loss, they do not contain requisite puretone threshold findings or Maryland CNC Word List Speech Recognition Scores. The Veteran was provided a VA audiological examination in March 2011. Audiometric testing revealed puretone air conduction thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 70 75 54 LEFT 25 45 70 65 51 The Veteran's Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 80 percent in the right ear and 88 percent in the left ear. With regard to the effects of his hearing loss, the Veteran reported that he had difficulty hearing in the presence of background noise and at a distance. He noted that he had to increase the volume on the television and telephone. With regard to the effects of the Veteran's hearing loss, the examiner opined that without the use of hearing aids the Veteran's hearing loss would make communication difficult in most listening environments. However, with hearing aids, the Veteran would be expected to hear fairly well in quiet environments while people were speaking at close range. The examiner acknowledged that even with the use of hearing aids, the Veteran would have difficulty understanding speech in noisy environments, especially if visual cues were absent. 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 II in the left ear, which corresponds to a noncompensable percent rating when applied to Table VII. The Board notes that the March 2011 audiogram results do not establish the requisite criteria for application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86 (2017). In his December 2011 notice of disagreement, the Veteran reported that he was unable to hear anything around him and required hearing aids. In his July 2013 substantive appeal, the Veteran reported that even when he used the speakerphone function he was still unable to hear people on the phone. At his March 2016 hearing, the Veteran testified that he has trouble hearing, that he talks loudly to people, and that he has trouble hearing over the phone. The Veteran was provided another VA audiological examination in June 2016. Audiometric testing revealed puretone air conduction thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 75 75 54 LEFT 25 60 70 65 55 The Veteran's Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 84 percent in the right ear and 76 percent in the left ear. With regard to the effects of the Veteran's hearing loss, the Veteran reported that he cannot understand what other people say and cannot understand people over the phone, even when the phone was on speaker phone. 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 IV hearing loss in the left ear, which corresponds to a noncompensable rating when applied to Table VII. Id. The Board notes that the June 2016 audiogram results do not establish the requisite criteria for application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86 (2017). In short, throughout the period on appeal, the Veteran's hearing loss disability has remained at a noncompensable level pursuant to VA regulations. It is important to note that the results of the VA audiometric testing do not signify the absence of a significant disability associated with the Veteran's hearing loss disability. However, the degree to which this disability affects the average impairment of earnings, according to the Rating Schedule, results in a noncompensable rating. See id.; 38 U.S.C.A. § 1155 (2012). The Board acknowledges the Veteran's assertion that his hearing is worse than currently rated. The Veteran is competent to report on factual matters and observable symptoms of which he has firsthand knowledge, and the Board finds that the Veteran is credible. However, as noted above, disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann, 3 Vet. App. at 349. The Veteran has not been shown to have the medical expertise needed to determine the extent of his hearing loss, and the Board concludes that the objective medical findings provided in the VA audiological reports to be more probative as to the extent of his hearing loss than his assertions. In summary, the preponderance of the competent and probative evidence is against the claim for a compensable rating for hearing loss, and the appeal is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a compensable rating for a bilateral hearing loss disability is denied. REMAND While further delay is regrettable, additional development is required. The August 2016 VA examination report contains contradictory findings regarding whether the Veteran experiences flare-ups. Specifically, while the examiner indicated that the Veteran did not report flare-ups, the examiner also noted that the Veteran reported that sometimes his back hurt so bad he was unable to do anything and that his pain was worse in the morning and when he tried to sleep. Accordingly, a new VA examination is warranted. With regard to entitlement to a TDIU, that issue is inextricably intertwined with the Veteran's increased rating claim for a lumbar spine disability. Therefore, the issue of entitlement to a TDIU is also remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, including, but not limited to Dr. Bell, who have recently treated him for his lumbar spine disability. After securing any necessary releases, the AOJ should request any relevant records identified that have not already been associated with record. If any requested records are not available, the Veteran should be notified of such. 2. After the above has been completed to the extent possible, schedule the Veteran for a VA thoracolumbar spine examination to determine the current nature and severity of his service-connected thoracolumbar spine disability. The claims file should be reviewed in conjunction with the examination. The examiner should describe all symptomatology, to include orthopedic and neurological symptoms associated with the thoracolumbar spine disability. All indicated tests should be conducted and the results reported. Range of motion should be tested actively and passively and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss during flare-ups; and as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if 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). These claims 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 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs