Citation Nr: 18143215 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 17-34 080 DATE: October 18, 2018 ORDER A higher initial rating for bilateral hearing loss in excess of 30 percent from August 4, 2013 to April 21, 2017 is denied. REMANDED A higher initial rating for bilateral hearing loss in excess of 40 percent from April 21, 2017 forward is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the initial rating period on appeal from August 4, 2013 to April 21, 2017, the bilateral hearing loss has manifested no more than level V hearing in the right ear and level VIII in the left ear. CONCLUSION OF LAW For the initial rating period on appeal from August 4, 2013 to April 21, 2017, the criteria for a higher initial rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from January 1956 to December 1958. Initial rating for bilateral hearing loss from August 4, 2013 to April 21, 2017 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In rating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination test and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating 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. Id. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, 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 evaluated to the next higher Roman numeral. For the rating period on appeal from August 4, 2013 to April 21, 2017, the Veteran is in receipt of an initial 30 percent rating for the service-connected bilateral hearing loss. The Veteran argues that an initial rating of 80 percent to 100 percent is more appropriate due to difficulty hearing telephone conversations, difficulty hearing with background noise, and difficulty hearing in-person conversations. See August 2015 Notice of Disagreement. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from August 4, 2013 to April 21, 2017, the weight of the competent and probative lay and medical evidence demonstrates that a higher initial disability rating in excess of 30 percent for the service connected bilateral hearing loss is not warranted. The most relevant evidence for this claim consists of the Veteran’s lay statements, VA audiology examination reports, and VA audiometric examination reports. The Veteran underwent a VA audiometric examination in November 2014. At that time, relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 75 80 90 LEFT 45 70 70 85 Speech recognition scores conveyed speech discrimination of 60 percent in the right ear and 80 percent in the left ear. During the November 2014 VA examination, the Veteran reported wearing hearing aids and not being able to understand speech without them. Based upon the results of the November 2014 VA examination, a Roman numeral VII is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral IV is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 20 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection point for these categories shows that the hearing loss does not exceed the levels contemplated for a 20 percent schedular rating. The Board has considered whether an initial disability rating higher than 30 percent for bilateral hearing loss is warranted by applying the provisions of 38 C.F.R. § 4.86(b) for exceptional patterns of hearing impairment. Since pure tone thresholds for right ear was measured at 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz, the higher Roman numeral designated from either Table VI or Table VIa will be used. Per the November 2014 results for the right ear, a Roman numeral V is designated under Table VIa, and a Roman numeral V is designated for the left ear under Table VIa. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 20 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection point for these categories shows that the hearing loss does not exceed the levels contemplated for a 20 percent schedular rating, even when considering exceptional patterns of hearing impairment; thus, this audiometric and speech recognition evidence from the November 2014 VA examination does not support a finding of a higher initial rating in excess of 30 percent. The Veteran underwent another VA audiometric examination in June 2015. At that time, relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 80 85 95 LEFT 45 75 80 80 Speech recognition scores conveyed speech discrimination of 76 percent in the right ear and 52 percent in the left ear. During the June 2015 VA examination, the Veteran reported being unable to hear without hearing aids or when background noise is present, and reported retiring when he was 67 years old due to hearing loss. Based upon the results of the June 2015 VA examination, a Roman numeral V is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral VIII is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 30 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection point for these categories shows that the hearing loss does not exceed the levels contemplated for a 30 percent schedular rating. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the results of the June 2015 VA audiometric examination do not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies in either of the Veteran’s ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as neither ear has shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. A September 2015 VA treatment record shows the Veteran underwent an audiometric examination. At that time, relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 75 85 90 LEFT 50 75 70 95 Speech recognition scores conveyed speech discrimination of 76 percent in the right ear and 80 percent in the left ear. Based upon the September 2015 VA audiometric examination results, a Roman numeral IV is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral IV is also designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection point for these categories shows that the hearing loss does not exceed the levels contemplated for a 10 percent schedular rating; thus, this audiometric and speech recognition evidence does not support a finding of a higher initial rating in excess of 30 percent. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the results of the September 2015 VA audiometric examination do not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies in either of the Veteran’s ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as neither ear has shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. The application of the rating schedule to the audiometric findings above do not establish entitlement to a higher initial disability rating in excess of 30 percent for bilateral hearing loss for the rating period from August 4, 2013 to April 21, 2017. As the weight of the competent and probative lay and medical evidence of record is against a higher initial disability rating in excess of 30 percent for bilateral hearing loss for the rating period on appeal from August 4, 2013 to April 21, 2017, the appeal for a higher initial rating must be denied. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. A higher initial rating for bilateral hearing loss in excess of 40 percent for the period from April 21, 2017 is remanded. 2. TDIU is remanded. The Veteran is in receipt of a 40 percent rating for the initial rating period on appeal from April 21, 2017. The record includes an April 2017 VA audiometric examination and also a June 2017 private audiometric examination. The June 2017 private audiometric examination is partially illegible, but indicates a worsening of hearing acuity compared to the results of the April 2017 VA audiometric examination. As such, the Board finds that remand for another VA audiometric examination would be helpful in resolving the discrepancy between the two audiometric test results. The issue of entitlement to a TDIU is inextricably intertwined with adjudication of a higher initial rating for bilateral hearing loss. The matters are REMANDED for the following action: Schedule the appropriate VA audiology examination in order to assist in determining the current level of severity of the service-connected bilateral hearing loss for the period from April 21, 2017. The VA examiner should report the extent of the bilateral hearing loss in accordance with VA rating criteria. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel