Citation Nr: 20007574 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-58 478 DATE: January 29, 2020 ORDER An initial 20 percent rating from December 21, 2015 and continuing thereafter for bilateral hearing loss is granted. REMANDED A total disability rating based on individual unemployability (TDIU) due to service-connected bilateral hearing loss is remanded. FINDING OF FACT With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the Veteran’s bilateral hearing loss manifested by no more than level V hearing acuity in both ears. CONCLUSION OF LAW The criteria to establish an initial 20 percent rating for the entirety of the rating period on appeal for bilateral hearing loss have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from January 1951 to December 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Louisville, Kentucky Regional Office (RO). In June 2017, September 2017, April 2018 and July 2019, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2018). Bilateral hearing loss Under DC 6100, the assignment of disability ratings for service-connected hearing impairment is 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, 349 (1992). Evaluations for 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 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The Rating Schedule establishes eleven auditory acuity levels designated from Level I to Level XI for profound deafness. 38 C.F.R. § 4.85 (2018). In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment. 38 C.F.R. § 4.86 (2018). When the pure tone thresholds at the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more under 38 C.F.R. § 4.86(a), or when the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz under 38 C.F.R. § 4.86(b), the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral under 38 C.F.R. § 4.86(b) (2018). Table VIA is used to determine a Roman numeral designation for hearing impairment based only on the pure tone threshold average and will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination score, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 (2018). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e) (2018). Where impaired hearing is service-connected only in one ear, the non-service-connected ear will be assigned a Roman numeral designation of I. 38 C.F.R. § 4.85(f) (2018); see also 38 C.F.R. § 3.383 (2018). The Veteran is rated noncompensable from December 21, 2015 and continuing thereafter for bilateral hearing loss under DC 6100. The appellate period is from December 21, 2015. In an April 2016 VA treatment record, the Veteran underwent a VA audiogram. Pure-tone thresholds, in decibels, were reported as follows: Hertz 1,000 2,000 3,000 4,000 Average Right ear 40 65 70 80 63.75 Left ear 50 65 75 75 66.25 The average pure-tone threshold at 1,000; 2,000; 3,000 and 4,000 was 63.75 decibels (rounded to 64 decibels) for the right ear and 66.25 decibels (rounded to 66 decibels) for the left ear. Speech recognition ability was listed as 64 percent for the right ear and 72 percent for the left ear using the Maryland CNC word list. However, the VA audiologist indicated that the speech recognition testing was not adequate for rating purposes. Under 38 C.F.R. § 4.85(c), table VIA is used to determine a Roman numeral designation based only on the pure-tone threshold average because the VA audiologist indicated that the Maryland CNC discrimination test was not adequate for rating purposes. Applying the above results from the April 2016 VA audiogram to table VIA shows level V acuity in both ears. Applying these findings to table VII results in a 20 percent rating for the Veteran’s bilateral hearing loss under DC 6100. In June 2016, the Veteran was afforded a VA auditory examination. Pure-tone thresholds, in decibels, were reported as follows: Hertz 1,000 2,000 3,000 4,000 Average Right ear 30 60 70 80 60 Left ear 25 60 80 80 61.25 The average pure-tone threshold at 1,000; 2,000; 3,000 and 4,000 was 60 decibels for the right ear and 61.25 decibels (rounded to 61 decibels) for the left ear. Speech recognition ability was listed as 86 percent for the right ear and 90 percent for the left ear using the Maryland CNC word list. Table VIA will not be used to determine a Roman numeral designation because the examiner indicated that use of the speech discrimination test was appropriate. 38 C.F.R. § 4.86(c) is inapplicable because the pure-tone threshold at each of the four frequencies was not 55 decibels or more. 38 C.F.R. § 4.86(b) is also inapplicable because although the pure-tone threshold at 1,000 Hz was 30 decibels or less for both ears, the pure-tone threshold at 2,000 Hz was not 70 decibels or more for both ears. Applying the above results from the June 2016 VA examination to table VI shows level III acuity in both ears. Applying these findings to table VIII results in a noncompensable rating for the Veteran’s bilateral hearing loss under DC 6100. Pursuant to the July 2019 Board remand, the Veteran was scheduled for an October 2019 VA auditory examination to determine the current severity of his bilateral hearing loss. However, the Veteran did not report to the examination and did not provide good cause for his absence. VA regulations provide that where entitlement to a benefit cannot be established without an examination and the Veteran fails to report to a VA examination without good cause, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655(a), (b) (2018). The Board will grant a 20 percent rating from December 21, 2015 and continuing thereafter based on the benefit-of-the-doubt doctrine. The April 2016 VA audiogram revealed level V acuity in both ears. However, the June 2016 VA audiogram revealed level III acuity in both ears. The Veteran underwent two VA audiograms within three months resulting in a 20 percent rating and a noncompensable rating, respectively. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a 20 percent initial rating is warranted and the claim is granted. REASONS FOR REMAND The June 2016 VA examiner indicated that the Veteran was unemployable due to his service-connected bilateral hearing loss. The issue of entitlement to a TDIU has been raised and pursuant to appellate court rulings, must be adjudicated if the Veteran completes an appropriate application for this benefit. Rice v. Shinseki, 22 Vet. App. 447 (2009). Remand is warranted for due process development for the issue of a TDIU prior to appellate consideration, including adjudication by the RO. The Veteran has not submitted a VA Form 21-8940, Application for Increased Compensation based on Unemployability. 1. Provide appropriate VCAA notice concerning the claim for a TDIU. 2. Ask the Veteran to complete and return a VA Form 21-8940, Application for Increased Compensation based on Unemployability, and/or other documents containing the necessary employment and education history. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.