Citation Nr: 18143838 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 11-23 800A DATE: October 23, 2018 ORDER Entitlement to an initial compensable rating prior to October 18, 2016, for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent from October 18, 2016, for bilateral hearing loss is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDING OF FACT VA audiology reports prior to October 18, 2016, document that the Veteran had, at most, Level II hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss prior to October 18, 2016, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1961 to April 1963. 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran’s claim for service connection for bilateral hearing loss was received by VA in January 2011. The June 2011 rating decision on appeal granted service connection for bilateral hearing loss. The RO assigned a noncompensable initial rating effective from January 2011. A June 2011 VA audiometric evaluation revealed right ear puretone thresholds, in decibels, of 35, 50, 65, and 65 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 54 decibels. Audiometric evaluation of the left ear revealed puretone thresholds of 40, 55, 60, and 65 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 55 decibels. Speech recognition ability was 88 percent in both ears. It was noted that the Veteran’s hearing loss resulted in difficulty communicating in most environments and difficulty comprehending television dialogue. VA audiometric testing in October 2014 revealed right ear puretone thresholds, in decibels, of 40, 55, 55, and 60 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 53 decibels. Audiometric evaluation of the left ear revealed puretone thresholds of 45, 60, 55, and 55 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 54 decibels. Speech recognition ability was 96 percent on the right and 94 percent on the left. The Veteran reported difficulty hearing people talk, hearing TV voices, and hearing the radio. Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted by a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. 38 C.F.R. § 4.86(a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. In this case, the Veteran’s hearing loss did not meet these criteria at any time prior to October 18, 2016, and the Veteran’s disability cannot be evaluated under the alternative rating scheme. With an initial rating assigned following a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Of the two VA audiological examination reports prior to October 18, 2016, the June 2011 report showed the greater amount of hearing loss. Accordingly, the results of the June 2011 report will be used to determine the appropriate level of compensation. The June 2011 VA audiological examination reveals that the Veteran had a puretone threshold average of 54 decibels in the right ear and 55 decibels in the left ear. He had speech discrimination of 88 percent in each ear. Using Table VI, these findings are equivalent to Level II hearing loss in right ear and Level II hearing loss in the left ear. Considering Table VII, when there is Level II hearing loss in both ears a noncompensable rating is the maximum rating for assignment under the schedular criteria. 38 C.F.R. § 4.87 (a), Code 6100. The Board has considered the Veteran’s assertions that his hearing loss was of such severity as to be entitled to a compensable rating prior to October 18, 2016. However, the Veteran may not be awarded a higher rating based on these assertions. Ratings for hearing impairment are 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 (1992). As shown above, the application of the rating schedule to the numeric designations of record prior to October 18, 2016, show that the Veteran’s bilateral hearing loss did not meet the criteria for a compensable rating. Accordingly, the Veteran is not entitled to a compensable rating for his bilateral hearing loss disability prior to October 18, 2016. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent from October 18, 2016 for bilateral hearing loss is remanded. At his May 2018 hearing the Veteran testified that his bilateral hearing loss disability had increased in severity since his most recent VA audiological examination. The Board notes that the most recent VA examination of these disabilities was in December 2016. Accordingly, the Veteran must be provided a new VA audiological examination in order to determine the current severity of his bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a total rating based on individual unemployability due to service connected disability is remanded. The TDIU issue must be remanded because it is inextricably intertwined with the increased rating for bilateral hearing loss claim and they must be considered together. Thus, a decision by the Board on the Veteran’s TDIU claim would, at this point, be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. After completion of the above development, schedule the Veteran for a VA audiology examination to determine the current severity of his bilateral hearing loss. The VA examiner should further comment upon the effect of hearing loss on the Veteran’s occupational functioning and daily activities. 3. Thereafter, the remanded claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and the representative should be provided with a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Jones, Counsel