Citation Nr: 19171007 Decision Date: 09/12/19 Archive Date: 09/12/19 DOCKET NO. 14-35 964 DATE: September 12, 2019 ORDER An initial compensable rating for bilateral hearing loss prior to March 5, 2019, and in excess of 30 percent thereafter, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to March 5, 2019, the Veteran’s hearing acuity was not shown to be greater than Level IV in the right ear and was not greater than Level II in his left ear. 2. From March 5, 2019, the Veteran’s hearing acuity has shown to be no greater than Level VI in the right ear and was not greater than Level VI in his left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss prior to March 5, 2019, and in excess of 30 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1968 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Regional Office (RO) for Department of Veterans Affairs (VA). This matter was previously before the Board in May 2018 when it was remanded to associate additional records with the claims file and for a new examination. The prior remand directives have been substantially complied with at this time. The Veteran submitted an application for TDIU in January 2012 that was denied by the July 2013 rating decision and was not timely appealed. However, the Board has taken jurisdiction over the TDIU claim in this case, as it is part and parcel of the increased rating claim for hearing loss. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran seeks a compensable evaluation for his bilateral hearing loss from January 30, 2012, the date of his filing of his claim for hearing loss, until March 5, 2019, when a VA exam showed compensable hearing loss. The Veteran also seeks a rating in excess of 30 percent from March 5, 2019. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The evaluation of hearing impairment applies a rather structured formula that is a mechanical application of the rating schedule to numeric designations after audiology evaluations are obtained. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under 38 C.F.R. § 4.86, 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 Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86 (b) (2016). The Veteran underwent a VA audiological examination in July 2013. During that examination, the Veteran reported that he had trouble hearing all the time. The Veteran underwent audiometric testing, after which the examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The audiometric testing revealed the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 40 55 75 70 60 80% LEFT 35 50 70 75 58 100% The Veteran next underwent VA audiological examination in March 2019. The Veteran described having difficulty in hearing in noisy environments, group situations, and from a distance and that while he could hear it was not clear. The Veteran underwent audiometric testing, and the examiner confirmed the diagnosis of bilateral sensorineural hearing loss. The audiometric testing revealed the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 50 65 75 75 66 70% LEFT 50 70 70 90 70 72% The Veteran’s VA treatment records show numerous appointments for hearing aid adjustments. Immediately preceding his filing in this matter the Veteran was seen for an audiological assessment in February 2011. The Veteran appears to have underwent audiometric testing at that time and his speech recognition scores were 96 percent bilaterally. The pure tone threshold results were not recorded, but the audiologist indicated his hearing acuity was within normal limits to 500 Hz, sloping to mild thresholds out to 2000 Hz, and dropping to moderately severe sensorineural hearing loss. The Veteran was also seen in December 2017 and the audiologist indicated that his speech recognition thresholds were good bilaterally and that they were in agreement with pure tone findings. The audiologist noted that his hearing had remained stable since his previous testing, by which the Board assumes the audiologist was refencing the July 2013 VA examination. There were not specific puretone thresholds recorded or speech recognition scores noted. The above results do not show a pattern of exceptional hearing loss for either ear, and therefore, the Board will not use Table VIa in evaluation of the Veteran’s hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level IV hearing acuity for the right ear and Level II hearing acuity for the left ear for the July 2013 hearing exam and Level VI bilaterally for the March 2019 exam. See 38 C.F.R. § 4.85. Such findings are commensurate to a noncompensable evaluation for the period prior to March 5, 2019 and a 30 percent rating from March 5, 2019. See Table VII. The VA treatment records do not reveal findings which indicate a worsening of the condition prior to the March 5, 2019 exam that is determinable and indicate that the VA examinations were consistent with the findings of VA audiological assessments. Finally, during the course of the appeal, the Veteran has indicated that he did not agree with the assignment of a non-compensable rating and requested a new hearing test. See Correspondence with Form 9. While the record has shown hearing loss throughout the appeal period, it was not shown to rise to the level of compensable hearing loss until the March 2019 exam. The Board is cognizant of the Veteran’s difficulties that he has with his hearing loss disability under the normal conditions of his life and his activities of daily living. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula that is applicable in this case. Moreover, the Court has held that the rating criteria in this case contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure, although it does not contemplate effects other than difficulty hearing or understanding speech as it does not otherwise account for other functional effects, such as dizziness, vertigo, ear pain, recurrent loss of balance or social isolation due to difficulties communicating. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In this case, the Veteran’s complaints on appeal merely describe his difficulty hearing and understanding speech in a normal everyday environment and are therefore contemplated by the rating criteria in this case. See Id. Accordingly, the Board cannot find that a compensable evaluation for the Veteran’s bilateral hearing loss is warranted prior to March 5, 2019 or in excess of 30 percent thereafter. His claim for increased evaluation must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS FOR REMAND Regarding the TDIU claim, the Veteran’s hearing loss disability has increased in severity since a TDIU was last denied in the July 2013 rating decision and has not underwent development since it was initially denied since that time. The Veteran currently meets the schedular requirement for a TDIU due to having a combined rating of 80 percent for ischemic heart disease, hearing loss, and tinnitus. The Board finds a TDIU has been raised by the record as the March 2019 examiner noted that the Veteran’s hearing loss would have an impact on ordinary conditions of daily life. The Board will remand for additional development at this time as the claim is reasonably raised by the record before the Board and is part and parcel of the Veteran’s claim for an increased rating. The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records and associate those documents with the claims file. 2. Complete proper development of the claim for TDIU, to include sending the Veteran proper notice and an Application for TDIU, VA Form 21-8940, and request that he submit that completed VA Form as well as any other information regarding his education and employment history since his discharge from military service. Ensure that all other appropriate development with respect to the TDIU claim is completed. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Middleton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.