Citation Nr: 1802561 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-11 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to an initial disability rating in excess of 40 percent for bilateral hearing loss prior to December 1, 2016, and in excess of 30 percent thereafter. WITNESS AT HEARING ON APPEAL The Veteran and his daughter, A. D. R. ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from October 1943 to February 1946 with the recognized Philippine Guerilla Service and from February 1946 to March 1946 with the Regular Philippine Army. This matter comes to the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which granted service connection for bilateral hearing loss rated as 40 percent disabling effective March 14, 2013. The Veteran testified before a Veterans Law Judge (VLJ) in January 2015, and a transcript of the hearing has been associated with the Virtual VA electronic claims file. Additionally, because the VLJ who conducted the previous Board hearing is unavailable, the Veteran was afforded the opportunity for an additional hearing before the Board; however, the Veteran did not respond to a September 2017 notice letter within 30 days; therefore, the Board finds that an additional Board hearing is not required. This matter was previously remanded by the Board for additional development in April 2015. As there has been substantial compliance with the prior remand directives regarding the Veteran's claim, the matter is properly returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a June 2016 rating decision proposed to reduce the Veteran's disability rating for bilateral hearing loss from 40 percent to 30 percent, effective December 1, 2016, and a subsequent September 2016 rating decision implemented the proposed rating reduction. However, given the Board's favorable decision herein to grant increased staged disability ratings for the entire period on appeal, the Veteran's appeal regarding the original reduction from 40 percent to 30 percent, effective December 1, 2016, is rendered moot and need not be addressed further herein. Additionally, the issue of entitlement to service connection for a cardiac disability has been raised by the record within a January 2013 statement, but despite prior referral in by the Board in April 2015, the issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran has exceptional patterns of hearing loss bilaterally, and the use of the Maryland CNC Test word recognition scores are not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make the combined use of puretone average and word recognition scores inappropriate for the Veteran. 2. Prior to May 12, 2016, the Veteran's bilateral hearing loss was manifested by no worse than Level VII hearing loss bilaterally. 3. From May 12, 2016, the Veteran's bilateral hearing loss was manifested by no worse than Level VI hearing loss bilaterally. CONCLUSION OF LAW The criteria for an initial 50 percent disability rating for bilateral hearing loss prior to May 12, 2016, and a disability rating of 40 percent thereafter, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code (DC) 6100, 4.86 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process The Veteran has not raised any issues with the duty to notify or duty to assist with respect to his appeal adjudicated herein. 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 duty to assist argument). II. Initial Rating - Bilateral Hearing Loss Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran's initial rating claim, the Board has considered the claim from the assigned initial effective date of March 14, 2013, which the Veteran has not appealed, as well the appropriateness of the assigned staged rating periods. The Veteran's bilateral hearing loss disability is currently rated as 40 percent disabling prior to December 1, 2016, and as 30 percent disabling thereafter, under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2017). Under DC 6100, a disability rating for hearing loss is determined by a mechanical application of the Rating Schedule to the numeric designations assigned based upon audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. The Rating Schedule also recognizes exceptional patterns of hearing impairment. See 38 C.F.R. § 4.86 (2017). When the puretone threshold at each of the four specified frequencies (1,000; 2,000; 3,000; and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). Thereafter, that numeral will be elevated to the next higher numeral. Id. In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled Maryland CNC speech discrimination test and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). As discussed below, the Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence weighs in favor of the Veteran's claim of entitlement to an initial disability rating in excess of 40 percent for bilateral hearing loss prior to December 1, 2016, and in excess of 30 percent thereafter. A VA audiology examination in April 2013 revealed the following puretone thresholds, in decibels, for the frequencies of interest, in Hertz: HERTZ 1000 2000 3000 4000 AVG RIGHT 85 75 80 75 79 LEFT 65 80 85 80 78 Speech recognition scores based on the Maryland CNC Test were unable to be tested. The examiner diagnosed bilateral sensorineural hearing loss which had a functional impact upon the Veteran's ordinary conditions of daily life, including the ability to work, based on the Veteran's difficulty understanding spoken words and his reliance on visual cues to aid comprehension. A February 2014 private audiology evaluation revealed the following puretone thresholds, in decibels, for the frequencies of interest, in Hertz: HERTZ 1000 2000 3000 4000 RIGHT 100 100 -- 100 LEFT 100 100 -- 100 Notably, the February 2014 results did not include puretone thresholds at 3000 Hz or speech recognition scores based on the Maryland CNC Test. As such, the results lack probative value in the context of the Veteran's appeal. See 38 C.F.R. § 4.85(a). Moreover, the inconsistency of the private February 2014 results with both the prior April 2013 and subsequent May 2016 VA audiology examinations is further indication that the private February 2014 results are less probative evidence in the context of the Veteran's appeal. Nevertheless, the April 2015 Board decision properly remanded the Veteran's claim for an additional VA audiology examination based upon the February 2014 private evaluation, which was at least some indication that the Veteran's bilateral hearing loss had worsened. This VA audiology examination, conducted on May 12, 2016, revealed the following puretone thresholds, in decibels, for the frequencies of interest, in Hertz: HERTZ 1000 2000 3000 4000 AVG RIGHT 70 70 75 70 71 LEFT 70 75 75 75 74 Speech recognition scores based on the Maryland CNC Test were noted as 0 percent bilaterally; however, the examiner stated that the use of the word recognition score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made the combined use of puretone average and word recognition scores inappropriate. The examiner diagnosed bilateral sensorineural hearing loss which had a functional impact upon the Veteran's ordinary conditions of daily life, including the ability to work, based on the Veteran's difficulty understanding spoken words and his reliance on written communication. In August 2016, the same VA examiner who conducted the April 2013 and May 2016 VA audiology examinations provided an addendum opinion which stated that the April 2013 Maryland CNC test results were 0 percent bilaterally, but that the use of the speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of puretone average and speech discrimination scores inappropriate. In order to determine the appropriate disability rating for the Veteran's bilateral hearing loss based upon the audiologic results discussed above, the Board has considered the Veteran's bilateral exceptional patterns of hearing impairment and the finding that use of his speech discrimination scores would be inappropriate; therefore, rather than utilizing Table VI of DC 6100 as directed by 38 C.F.R. § 4.85(b), the Board has properly utilized Table VIa as directed by 38 C.F.R. § 4.86. The April 2013 VA examination showed that the Veteran's puretone threshold average on the right side was 79 decibels; therefore, Table VIa assigns a Roman numeral of VII, which is then elevated to Roman numeral VIII. 38 C.F.R. § 4.86(a), (b). The Veteran's left ear puretone threshold average was 78 decibels; therefore, Table VIa assigns a Roman numeral of VII, which is also elevated to Roman numeral VIII. Id. Next, DC 6100 directs to apply the Roman numerals derived from Table VIa to Table VII. Specifically, the horizontal rows of Table VII represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Where the column for Roman numeral VIII and the row for Roman numeral VIII intersect, Table VII reveals that a rating of 50 percent is warranted. The subsequent May 12, 2016 VA examination showed that the Veteran's puretone threshold average on the right side was 71 decibels; therefore, Table VIa assigns a Roman numeral of VI, which is then elevated to Roman numeral VII. 38 C.F.R. § 4.86(a), (b). The Veteran's left ear puretone threshold average was 74 decibels; therefore, Table VIa assigns a Roman numeral of VI, which is also elevated to Roman numeral VII. Id. With application of the Roman numerals derived from Table VIa to Table VII, a rating of 40 percent is warranted. As such, based on the probative evidence of record, including as discussed above, the Board concludes that an initial 50 percent disability rating for exceptional patterns of bilateral hearing loss is warranted prior to May 12, 2016, from which time a 40 percent disability rating is warranted based upon a VA audiology examination which noted some improvement in his service-connected bilateral hearing loss. To this extent only, the Veteran's claim is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial 50 percent disability rating for bilateral hearing loss prior to May 12, 2016, and a disability rating of 40 percent thereafter, are granted. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs