Citation Nr: 1815134	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  10-32 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss prior to March 2016 and in excess of 30 percent thereafter.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

K. Wysokinski, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from February 1968 to January 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  The Veteran presented sworn testimony at a hearing before the undersigned in June 2013.  

The Board remanded this matter in January 2014 for additional development.  
During the appeal period, the RO increased the rating for the Veteran's left hearing loss from 10 percent to 30 percent disabling, effective March 1, 2016.  However, as that increase did not represent a total grant of benefits sought on appeal, the claim remains before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).

The issues of entitlement to a rating in excess of 30 percent for bilateral hearing loss and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

An increase in the Veteran's right ear hearing loss from Level I to Level IV severity was factually ascertainable as of March 6, 2009 and has been manifested by Level XI in the left ear for the entire period on appeal. 



CONCLUSION OF LAW


The criteria for a rating of 30 percent for bilateral hearing loss are met effective March 6, 2009 and no earlier.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1-4.14, 4.85, 4.86, DC 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran's bilateral hearing loss has been rated under DC 6100 as 30 percent disabling effective March 1, 2016.  38 C.F.R. §§ 4.85.  The Board grants entitlement to this 30 percent rating effective March 9, 2009, the earliest date that the increase in hearing loss is factually ascertainable.  38 C.F.R. § 3.400(o)(2); see also Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained).  Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes (DCs).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20.  When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable DCs.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

Once a hearing disability is established, a numeric designation of hearing impairment is determined for each ear by applying the puretone threshold average and Maryland CNC percentage scores to Table VI ("Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"), resulting in a Roman numeral designation.  38 C.F.R. § 4.85(b), Table VI.  Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII ("Percentage Evaluation for Hearing Impairment").  
38 C.F.R. § 4.85(e), Table VII.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Table VI is generally used to determine the Roman numeral designation (I through XI) for hearing impairment in each ear, unless the examiner certifies that use of the speech discrimination test is not appropriate.  In that case, Table VIa ("Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average") is used.  38 C.F.R. § 4.85(c).  Table VIa may also be used when the puretone thresholds for each of the four frequencies 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or lower at 1000 Hertz, and 70 decibels or higher at 2000 Hertz.  38 C.F.R. § 4.86.

At his initial VA audiological examination for compensation purposes in October 2008, the Veteran complained of impaired hearing.  On the authorized audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
25
20
50
50
LEFT
105+
105+
105+
105+
105+

The average pure tone threshold from 1000 to 4000 Hertz was 36 decibels in the right ear and 105+ decibels in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 0 percent in the left ear.  

For the entire period on appeal, the Veteran's left ear hearing loss has manifested with the highest impairment rated at Level XI.  However, as the ratings are assigned by combination, the Veteran's right ear limits the maximum rating that may be awarded.  Per the October 2008 result, the impairment for the right ear was at Level I; resulting in a combined 10 percent evaluation.  

Following the October 2008 examination, the Veteran submitted communication dated March 6, 2009 from a non-VA Otolaryngologist indicating that the Veteran now had significant difficulty in hearing and that he should be considered for a higher rating.  

While the record contains several audiological examinations, including ones from July 2008, March 2012, and April 2014, none of these contain the CNC Maryland Speech Recognition results needed for VA rating purposes.  The first examination that contains all of the required information is the March 2016 VA audiological examination for compensation purposes.  On this audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
45
60
60
LEFT
105+
105+
105+
105+
105+

The average pure tone threshold from 1000 to 4000 Hertz was 51 decibels in the right ear and 105+ decibels in the left ear.  Speech audiometry revealed speech recognition ability of 76 percent in the right ear and a designation of "CNT"- indicating an inability to test for the left ear.  An addendum VA opinion indicated that the CNT designation should have been recorded as 0 percent.  

These results correspond with the maximum Level XI impairment in the left ear, and Level IV impairment in the right; resulting in a combined rating of 30 percent.  

The Board finds that an award of 30 percent from the date of March 6, 2009 letter is appropriate as this letter represents the first factually ascertainable increase in the Veteran's disability.  As held by the Court in Swain, 27 Vet. App. 219, the effective date is governed by when the increase is factually ascertainable, not by when proper testing for rating purposes is actually conducted.  In other words, a delay in obtaining a rating-compliant exam following evidence of worsening should not lead to the Veteran being denied a higher rating.  

The Board denies entitlement a rating in excess of 10 prior to March 6, 2009 as the most competent evidence of record does not show right ear impairment above Level I.  Prior to the March 6, 2009 correspondence, the Veteran had not submitted evidence indicating that his hearing had worsened beyond the level reflected by the October 2008 examination.  The Veteran challenged the denial of service-connection for his right ear hearing loss and sought an increased rating for his left ear hearing loss, however, the Board finds no ascertainable claim that the Veteran's right ear had worsened until the March 2009 letter.  The Board has considered whether the provisions in §§ 4.85 and 4.86 which cover exceptional patterns of hearing loss would provide a greater rating.  However, even when considering these provisions, the Veteran still does not qualify for a higher rating prior to March 6, 2009.  As the evidence shows that the Veteran's hearing loss worsened in the right ear to a Level IV impairment, and this increase was factually ascertainable as of March 6, 2009, the Board grants entitlement to a rating of 30 percent for bilateral hearing loss effective March 6, 2009 and no earlier.  


ORDER

Entitlement to a rating of 30 percent for bilateral hearing loss is granted effective March 6, 2009 and no earlier.


REMAND

The Board finds that a remand is necessary to obtain outstanding VA treatment records or to confirm that they do not exist.  See Sullivan v. McDonald, 815 F.3d 786 (2016).  The Veteran's records indicate that he had follow up appointments scheduled for April 2015 and April 2016 following his April 2014 VA audiological examination.  The Veteran's current records do not contain any indication that these appointments were canceled, but also do not contain any clinic reports from these VA appointments.  Consequently, the issue of entitlement to a rating in excess of 30 percent for the period beginning March 6, 2009 must be remanded to obtain records or make a finding as to their unavailability.  

The issue of entitlement to TDIU must too be remanded as inextricably intertwined with the RO's development and readjudication of the increased rating claim.  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 Board decision on one issue cannot be rendered until the other issue has been considered). 


Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA medical records.  Any such records should be associated with the claims file.  Specifically make sure to obtain records of any April 2015, April 2016, and March 2018 follow up audiological appointments, including any records concerning the Veteran's communications with VA concerning appointment cancelation.  

2.  Ask the Veteran to identify any private medical care providers who treated him for his service connected disabilities.  Make reasonable efforts to secure the necessary releases and to associate any such identified records with the claims file.

3.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his service connected disability symptoms and their impact on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

4.  Consider whether any further examinations may be appropriate, and readjudicate the issues of entitlement to TDIU and an increased bilateral hearing loss rating.  If the benefits sought on appeal remain denied, issue the Veteran and his representative a supplemental statement of the case (SSOC) and give a reasonable opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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. §§ 5109B, 7112.




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs