Citation Nr: 20036497 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 20-04 293A DATE: May 28, 2020 ORDER Entitlement to an increased disability rating in excess of 60 percent for the service-connected bilateral hearing loss is denied. REMAND Entitlement to a total disability based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Throughout the entirety of the appeal period, the Veteran’s service-connected bilateral hearing has been manifested by hearing acuity of no worse than Level XI in his right ear and no worse than Level VII in his left ear. CONCLUSION OF LAW The criteria for a rating greater than 60 percent for the service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from January 1959 to December 1962. This current matter comes before the Board of Veterans’ Appeals (Board) from the December 2018 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO). Increased Rating – Service-Connected Bilateral Hearing Loss The Veteran contends that he is entitled to a rating greater than 60 percent for his service-connected bilateral hearing loss throughout the entirety of the appeal period. In this regard, the Board notes that 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 Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 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 and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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 and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A November 2018 VA examination reveals that the Veteran reported decreased hearing ability. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Avg CNC RIGHT 105+ 105 105+ 105+ N/A 0% LEFT 70 60 75 85 72.5 64% The examination report notes that the Maryland CNC word discrimination test was appropriate for this Veteran. He displayed an exceptional pattern of hearing loss. Therefore, applying the results to Table VI or VIa yields Level VII in his left ear and Level XI in his right ear. Entering the resulting bilateral numeric designation of Level VII for the left ear and Level XI for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 60 percent disability rating under Diagnostic Code 6100. Another VA examination was given to the Veteran in July 2019. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Avg CNC RIGHT 105+ 105+ 105+ 105+ 105 N/A LEFT 65 65 85 95 78 N/A The examination report notes that the Maryland CNC word discrimination test was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate. Although the Maryland CNC word discrimination test was not used, the Veteran displayed an exceptional pattern of hearing loss. Therefore, applying the results to Table VIa yields Level VII in the left ear and level XI in the right ear. Entering the resulting bilateral numeric designation of Level VII for the left ear and Level XI for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 60 percent disability rating under Diagnostic Code 6100. In addition to the November 2018 and July 2019 VA examinations, the Veteran’s private medical treatment records have been reviewed. A private audiological examination from April 2019 shows the Veteran’s hearing loss as follows: 1000 2000 3000 4000 Avg CNC RIGHT NA LEFT 80 80 95 73.3 32% The private treatment records only measured the Veteran’s left ear, finding that the Veteran was functionally deaf in his right ear. While the private examination does use a speech discrimination test, it does not discuss the type of speech discrimination test used. As such, it is not known if the speech discrimination test is the same one used by the VA and if the test results correlate to the VA diagnostic code criteria. Although the word discrimination test cannot be used, the Veteran displayed an exceptional pattern of hearing loss in his right ear. Thus, applying the results to Table VIa yields Level VI in the left ear and level XI in the right ear. Entering the resulting bilateral numeric designation of Level VI for the left ear and Level XI for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. Lastly, the Veteran has submitted an opinion from a private medical physician dated December 2017. This physician opines on the severity of the Veteran’s hearing loss based on audiological testing from August 2017 with the following results: 1000 2000 3000 4000 Avg CNC RIGHT NA LEFT 65 70 75 65 48% Again, the private treatment records only measured the Veteran’s left ear, finding that the Veteran was functionally deaf in his right ear. The private examination does use a speech discrimination test, it does not discuss the type of speech discrimination test used. As such, it is not known if the speech discrimination test is the same one used by the VA and if the test results correlate to the VA diagnostic code criteria. Although a word discrimination test was used, the Veteran displayed an exceptional pattern of hearing loss. Therefore, applying the results to Table VIa yields Level V in the left ear and level XI in the right ear. Entering the resulting bilateral numeric designation of Level V for the left ear and Level XI for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Based on this evidence, a rating in excess of 60 percent for the Veteran’s bilateral hearing loss for the entirety of the appeal period (beginning on January 6, 2018) is not warranted. In reaching this decision, the Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s lay statements regarding his difficulty hearing and understanding people even at high volumes. The Veteran is competent to report difficulty with his hearing. However, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 60 percent for hearing loss for the entirety of the appeal period (beginning on January 6, 2018). In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND TDIU The Veteran currently has two service-connected disabilities—bilateral hearing loss, evaluated as 60 percent disabling and tinnitus, rated as 10 percent disabling. The Veteran essentially asserts that his service-connected bilateral hearing loss impairs his ability to obtain and maintain gainful employment. In light of this assertion (that his service-connected bilateral hearing loss, a single service-connected disability, adversely affects his employability), the Board finds that he meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). However, the Board is unable to determine the impact of this service-connected disability on the Veteran’s ability to secure and follow substantially gainful employment in light of his educational and occupational background. While the VA examinations do discuss that the Veteran’s hearing loss impacts his ability to work, these examinations do not discuss to what degree his hearing loss impacts his ability to work. Thus, remand is necessary to determine the effect of the Veteran’s service-connected bilateral hearing loss on his ability to obtain and maintain gainful employment in light of his educational and occupational background. This matter is, therefore, REMANDED for the following action: 1. The RO should arrange for a VA audiological examination to assess the impact of the Veteran’s service-connected bilateral hearing loss on his employability. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. Specially, the examiner should discuss the impact of the Veteran’s service-connected bilateral hearing loss on his ability to obtain and maintain employment in light of his educational and occupational background. Complete rationale should be provided for all opinions rendered. 2. If upon completion of the above action, the issue of entitlement to a TDIU remains denied, the case should be returned to the Board after compliance with appellate procedures. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edward G. Lent 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.