Citation Nr: 21001643 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-36 910 DATE: January 11, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss is manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1978 to August 1992. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from April 2015 and August 2015 rating decisions. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2018 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In April 2019, the Board remanded the issues of entitlement to service connection for left ear hearing loss, entitlement to service connection for a traumatic brain injury (TBI), and entitlement to an initial compensable rating for right ear hearing loss for additional development. In a May 2020 rating decision, the RO granted service connection for left ear hearing loss and service connection for a TBI; as such, these issues are no longer before the Board. The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran testified in August 2018 that he is no longer able to work due to his service-connected disabilities. As such, the Board finds that the record raises the issue of entitlement to TDIU. Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran seeks entitlement to an initial compensable rating for his bilateral hearing loss. The Veteran originally claimed entitlement to service connection for bilateral hearing loss. Service connection for right ear hearing loss was established by an August 2015 rating decision, at which time a noncompensable rating was assigned, effective from May 15, 2015. In September 2015, a notice of disagreement with the rating assigned for the right ear and with the denial of service connection for the left ear was filed. In May 2020, the RO granted entitlement to service connection for hearing loss of the left ear, resulting in service connection for bilateral hearing loss, rated as noncompensable, effective May 15, 2015. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged ratings” (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disabilities. In its evaluation, the Board shall consider all information and lay and medical evidence that is of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Veteran contends that he is entitled to a higher rating because normal conversation is hard for him to understand. See July 2016 statement. He testified in August 2018 that he constantly must ask people to repeat what they said and that he must have the television turned up very loud. See August 2018 BVA Hearing Transcript, pages 5-6. 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, Diagnostic Code 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). The Veteran was afforded a VA examination in August 2015. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 40 50 40 38 100 LEFT 25 50 50 50 44 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded a VA examination in March 2020. The Veteran reported that he has difficulty understanding people and they have to repeat themselves. 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: March 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 55 65 55 55 94 LEFT 40 55 60 55 52.5 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s contentions that he has difficulty hearing people in conversation and hearing the television. 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. See 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. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial compensable rating for bilateral hearing loss. 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 Entitlement to a TDIU. Pertinent to a potential TDIU claim, as noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice, 22 Vet. App. at 453-54. The Veteran testified during the August 2018 Board hearing that he has lost jobs previously due to the inability to physically perform the work required. He testified that he is no longer able to support his family. While the Board has jurisdiction over this issue as part and parcel of the Veteran’s increased rating claim, further development is necessary for a fair adjudication of the TDIU aspect of such claim. Upon remand, the AOJ is requested to afford the Veteran proper notice under the VCAA as related to a TDIU claim. The AOJ should obtain the Veteran’s employment history as well as any additional development as necessary for a fair adjudication of the claim. After all appropriate development has been completed, the Veteran’s TDIU claim should be adjudicated based on all evidence of record to include consideration of the provisions of 38 C.F.R. § 4.16 (a) and (b), as applicable. The matters are REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice that informs him of the evidence and information necessary to establish entitlement to a TDIU. 2. The Veteran should also be requested to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). Each executed form should be returned to VA. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.