Citation Nr: 18145816 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-37 862 DATE: October 30, 2018 ORDER Entitlement to an initial rating in excess of 10 percent prior to October 17, 2014 for bilateral hearing loss is denied. Entitlement to an increased initial rating of 70 percent from October 17, 2014 to December 4, 2014 for bilateral hearing loss is granted. Entitlement to an initial rating in excess of 70 percent from December 4, 2014 forward for bilateral hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for adenocarcinoma of the right lung, status post right upper lobe lobectomy with scar, excluding the period during which the Veteran has been assigned a temporary total rating (TTR) under 38 C.F.R. § 4.30, is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Prior to October 17, 2014, the Veteran’s bilateral hearing loss is manifested by no greater than Level IV hearing loss in the right ear and Level IV hearing loss in the left ear. 2. The Veteran alleged worsening of his bilateral hearing loss, which was shown on an October 17, 2014, audiogram; the testing is not valid for rating purposes but does confirm the allegation. 3. From December 4, 2014 forward, the Veteran’s bilateral hearing loss is manifested by no greater than Level IX hearing loss in the right ear and Level X hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to October 17, 2014 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). 2. The criteria for an increased initial rating of 70 percent from October 17, 2014 to December 4, 2014 for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). 3. The criteria for an initial rating in excess of 70 percent from December 4, 2014 forward for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1964 to August 1967. These matters come to the Board of Veterans’ Appeals (Board) on appeal from June 2012 and September 2014 rating decisions by various Regional Offices (ROs) of the United States Department of Veterans Affairs (VA). Although partial increases for hearing loss were granted during the pendency of the appeal, all stages remain on appeal, as indicated above. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor his representative have raised any 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 duty to assist argument). Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Board finds that based on the evidence, further staged increased ratings are not warranted. The Veteran contends he is entitled to an initial rating in excess of 10 percent prior to October 17, 2014, an initial rating in excess of 40 percent from October 17, 2014 to December 4, 2014, and an initial rating in excess of 70 percent from December 4, 2014 forward, for his service-connected bilateral hearing loss. 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 eleven 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, VIa 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). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Additionally, under 38 C.F.R. § 4.85(c), Table VIA will be used when the examiner certifies that use of speech discrimination is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. Here, however, the Veteran’s hearing loss does not qualify as “exceptional,” for purposes of the application of Table VIA, and thus neither 38 C.F.R. § 4.85(c), Table VIA, nor 38 C.F.R. § 4.86 will be further discussed. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); 38 C.F.R. § 4.85. A. Period prior to October 17, 2014 After review of the record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s bilateral hearing loss in the period prior to October 17, 2014. The record reflects the Veteran was afforded a VA audiological examination in April 2012. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 65 70 75 64 LEFT 50 70 75 70 66 Maryland CNC speech audiometry revealed speech recognition ability of 80 percent in the right ear and 80 percent in the left ear. 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 IV hearing loss in the left ear. When hearing loss is at Level IV in the better ear and Level IV in the poorer ear, a 10 percent rating is assigned under Table VII. The April 2012 VA examiner opined that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including the ability to work. The VA examiner reported that the Veteran is unable to understand conversations easily without the use of hearing aids. B. Period from October 17, 2014 to December 4, 2014 After review of the record, the Board finds that an increased rating of 70 percent is not warranted for the Veteran’s bilateral hearing loss in the period from October 17, 2014 to December 4, 2014. The Veteran underwent subsequent audiometric testing in October 2014, administered by his treating VA clinician. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 85 N/A 80 N/A LEFT 60 80 N/A 75 N/A The October 2014 audiogram is invalid for rating purposes because it did not include a controlled speech discrimination test (Maryland CNC) in accordance with 38 C.F.R. § 4.85(a), and did not test hearing at all frequencies. The report of testing specifies this. Nevertheless, the RO, apparently misreading the results, assigned a 40 percent rating for worsened hearing loss. The Board cannot confirm and continue that rating at this time, as there is no competent evidence of entitlement to that level of impairment; the testing cannot be considered for that purpose. However, the worsening which was generally shown did prompt the Veteran to file his notice of disagreement on December 4, 2014, and to report overall worsening of his hearing. The facts in evidence would allow a finding of entitlement to 10 percent based on the last valid testing, or increase to 70 percent based on the first indication of actual worsening, with the Veteran benefiting from resolution of reasonable doubt. Essentially, the Board can, and does, conclude that had fully valid testing been done in October 2014, it would have shown that the Veteran’s hearing was as bad then as it was on the date of his notice of disagreement and the date of the valid exam which eventually confirmed his worsening. Accordingly, resolving all reasonable doubt in favor of the Veteran, an increased 70 percent rating is assigned from October 17, 2014, to December 4, 2014, to remain consistent with the evidence of recorfd. C. Period from December 4, 2014 After review of the record, the Board finds that an initial rating in excess of 70 percent is not warranted for the Veteran’s bilateral hearing loss in the period from December 4, 2014 forward. The record reflects the Veteran was afforded a VA audiological examination in July 2016. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 95 95 90 86 LEFT 70 90 90 85 84 Maryland CNC speech audiometry revealed speech recognition ability of 48 percent in the right ear and 42 percent in the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IX hearing loss in the right ear and Level X hearing loss in the left ear. When hearing loss is at Level IX in the better ear and Level X in the poorer ear, a 70 percent rating is assigned under Table VII. The July 2016 VA examiner opined that the Veteran’s hearing loss impacted ordinary conditions of his daily life, including ability to work. The VA examiner indicated that the Veteran endorsed difficulties “in just about all” listening and communication situations. The Veteran reported that his hearing loss had become “so poor” such that he depended upon help from his spouse as he frequently misunderstood conversations and incidental comments. The Veteran and his friend have recounted the functional impact of his hearing loss. He has difficulty hearing store clerks and cashiers, servers in restaurants, and group conversations. The Veteran stated that he uses closed-captioning on his television, and uses a speaker phone such that his wife can reiterate what was said. A fellow service member reported that during a recent visit, they had to communicate with a pen and paper. VA examiners reported the effects of the Veteran’s hearing loss on his daily activities and occupational functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, such factors were considered in the calculation and formation of the rating schedule criteria. See 59 Fed. Reg. 17295 (April 12, 1994). REASONS FOR REMAND Upon review of the record, the Board finds a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Adenocarcinoma of the Right Lung The Veteran has not been fully examined for residual of his right lung cancer since 2014. He has reported worsening of his breathing since that time, and offers specific descriptions and allegations in support. A new examination for updated findings is required. Moreover, it appears some testing and VA treatment records are not yet associated with the claims file. Such must be accomplished.   2. TDIU The TDIU claim is inextricably intertwined with the pending claim for an initial increased rating for adenocarcinoma of the right lung. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran. Attention is directed to the Veteran’s October 2016 correspondence and VA outpatient treatment records that reference a September 2016 pulmonary function test. Upon review of the record, the Board notes that the pulmonary function test has not been associated with the Veteran’s claims file. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. Schedule the Veteran for an examination to ascertain the current nature and severity of his adenocarcinoma of the right lung. It should be clearly stated if active disease is present or if therapeutic treatment continues; otheerwise all residuals must be identified. 3. Thereafter, readjudicate the issues on appeal. If the determinations remain unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel