Citation Nr: 20022437 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-24 403 DATE: March 31, 2020 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss is manifested by no greater than Level I hearing loss. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7; 4.85, Tables VI, VIa, VII; 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the Army from June 1981 to June 1988. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2017 and December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). This appeal arises from the Veteran’s disagreement with the initial evaluation following the grant of service connection for bilateral hearing loss. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any specific issues with the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).   Increase Rating-Bilateral Hearing Loss Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). Under the applicable criteria, ratings for bilateral hearing loss are determined in accordance with the findings reported at audiometric examinations. Evaluations of hearing impairment 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 cycles per second. To evaluate the degree of disability from bilateral hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. 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. The regulations include special provisions for evaluating exceptional patterns of hearing impairment: (a) When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the pure tone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In August 2017, the Veteran was afforded a VA audio examination showing: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 45 55 55 LEFT 20 20 40 55 45 The average decibel loss in the left ear was 40 and for the right ear 45. Speech recognition scores were 96 percent in the right ear and 96 percent in the left ear. The examiner opined that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work. The examiner remarked that the Veteran could not hear conversation unless his hearing aids. The Veteran reported that he could watch TV with his wife because of his hearing condition. He reported that he had a Surflink in order to watch television. These findings correspond to Level I hearing in each ear, which in turn corresponds to a 0 percent (noncompensable) disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. On April 2018 VA Form 9, the Veteran indicated that any background noise destroyed his ability to hear someone talking. He indicated that he could not hear the television even when it was turned on the highest volume. He argued that in the “real world” his hearing loss caused a greater impact than was recognized by the current rating. VA treatment records demonstrated that the Veteran complained of his hearing loss. The Board has considered the Veteran’s statements as to the difficulties he experiences socially as a result of his bilateral hearing loss disability and finds his report of difficulty understanding conversations credible. However, the Board observes that VA examiner also considered the Veteran’s functional difficulty. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of a Veteran’s hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep’t of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist’s description of the functional effects of the Veteran’s hearing loss disability was somehow defective, the Veteran bore the burden of demonstrating any prejudice caused by a deficiency in the examination. Here, the Veteran reported during the VA examination that his hearing interfered with conversing with others. He reported that he had to use Surflink to watch television. Thus, information concerning how the Veteran’s hearing loss disability affected his daily functioning was obtained. The Court has specifically held that the rating criteria for a hearing loss disability 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. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In essence, VA’s audiological examinations are designed for purposes of obtaining information necessary for the full and accurate application of the “Percentage Evaluation for Hearing Impairment” tables, which are based exclusively on the results provided from two objective tests namely, a pure tone audiometry test and a speech discrimination test. See 38 C.F.R. § 4.85. The Veteran has not offered any evidence demonstrating that the testing method used produced inaccurate, misleading, or clinically unacceptable results. It must be emphasized that the assignment of a disability rating for bilateral hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss disability has increased in severity to warrant a compensable disability rating; or, that available findings do not accurately reflect his hearing ability at any time. Here, the objective clinical findings outweigh the Veteran’s lay assertions that a compensable evaluation is warranted. REASONS FOR REMAND The Veteran contends that his TBI is related to his in-service injury. He asserts that his TBI is also related to a car bomb that happened in October/November 1982. The occurrence of this explosion was previously established in connection with a claim of service connection for a psychiatric disability, though the details presented in connection with the TBI claim (driving with his family during the explosion) are at odds with the known facts (explosion at 3:00 AM or so nearby). However, in the December 2017 VA examination, the examiner stated there was insufficient evidence of “…events…to warrant a likely diagnosis of TBI.” As this is in contradiction of the established facts, an examination must be scheduled. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA TBI examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed TBI pathology. For any identified disability, opine as to whether such is as likely as not caused or aggravated by active service, to include tractor hood falling and a car bomb incident. A complete rationale for any opinions expressed should be set forth. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.