Citation Nr: 21002465 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-47 163 DATE: January 13, 2021 ORDER A rating in excess of 80 percent for bilateral hearing loss is denied. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The competent and probative evidence establishes that throughout the appeal period, the Veteran’s bilateral hearing loss manifested by no worse than Level IX hearing loss in the right ear and Level XI in the left ear, with an exceptional pattern of hearing loss in both ears. CONCLUSION OF LAW The criteria for a rating in excess of 80 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an April 2019 video conference hearing and a transcript of that proceeding is of record. This matter was previously before the Board in July 2019, when the Board remanded the appeal for further development. It has now returned for appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). By way of background, the Veteran originally filed a claim for service connection for bilateral hearing loss in January 1985. Thereafter, the RO issued an April 1985 rating decision which granted service connection for left ear hearing loss and assigned an initial noncompensable (0 percent) rating, but denied service connection for right ear hearing loss. The Veteran submitted a timely notice of disagreement (NOD) in July 1985, and a September 1985 statement of the case (SOC) continued the previous denial of entitlement to service connection. The Veteran appealed this decision to the Board in October 1985, and in April 1986, the Board denied entitlement to service connection for right ear hearing loss. The Veteran did not appeal the April 1986 Board decision, which consequently became final. Then, in October 2015, the Veteran filed a claim to reopen the April 1985 denial of entitlement to service connection for right ear hearing loss. In a July 2017 SOC, the RO found that new and material evidence had been received to reopen the claim, but continued the previous denial of service connection for right ear hearing loss. The Veteran appealed this denial to the Board in September 2017, and testified before the undersigned Veterans Law Judge at a video conference hearing in April 2019. The Board issued a decision in July 2019, in which it found that new and material evidence had been received to reopen the Veteran’s claim of service connection for right ear hearing loss, and remanded the matter for further development. In September 2020, the RO readjudicated the matter and issued a supplemental statement of the case (SSOC), in which it granted entitlement to service connection for right ear hearing loss. In addition, the RO issued a September 2020 rating decision which assigned an effective date of January 18, 1985 for bilateral hearing loss, rated as noncompensable prior to October 13, 2015, and assigned an 80 percent rating thereafter. The Veteran contends that he is entitled to an effective date earlier than October 13, 2015, for the award of service connection for right ear hearing loss. In support of this contention, the Veteran’s representative asserts that an earlier effective date should be granted because the RO failed to convert the Veteran’s January 1968 puretone threshold readings from American Standards Association (ASA) units to International Standards Organization – American National Standards Institute (ISO-ANSI) units when it denied service connection for right ear hearing loss in April 1985. See 11/18/2020 Appellate Brief. The November 2020 Written Brief Presentation also appears to raise a clear and unmistakable error (CUE) motion. Specifically, the Veteran’s representative contends that the RO committed CUE when it failed to convert the Veteran’s January 1968 separation puretone threshold readings from ASA to ISO-ANSI when evaluating his claim in 1985, which would have supported an effective date of January 1, 1985 for the award of service connection for right ear hearing loss. However, it is unclear which decision or decisions made by the RO or Board are being collaterally attacked by what the Board presumes to be a CUE motion. In light of this, the Board advises the Veteran and his representative that if they wish to file a CUE motion, to do so explicitly and to file the proper motion with the proper entity, either the RO or Board. Finally, the Veteran testified before the undersigned at an April 2019 Board hearing that he is unable to work because of his service-connected bilateral hearing loss. See 04/30/2019 Hearing Transcript at 9. While the Veteran has not filed a separate application for TDIU, under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), entitlement to a TDIU, when reasonably raised by the record, is part of any claim for an increased rating. As the issue of an increased rating for service-connected bilateral hearing loss is currently before the Board, the Board will take jurisdiction over the issue of entitlement to a TDIU under Rice. The issue of entitlement to a TDIU has thus been included, and is addressed below in the remand portion of this decision. Increased Rating for Bilateral Hearing Loss In October 2015, the Veteran filed for bilateral hearing loss. As the Veteran was only service-connected for left ear hearing loss (noncompensable) at the time, this application was interpreted as for an increased rating for the left ear and a petition to reopen the previously denied service connection for right ear hearing loss. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought. See AB v. Brown, 6 Vet. App. 35 (1993). In this case, however, the Veteran’s representative specified in the November 2020 Appellate Brief that the Veteran agreed with the assigned 80 percent rating for bilateral hearing loss. See 11/18/2020 Appellate Brief. However, it is not clear that the issue of whether a rating in excess of 80 percent has been withdrawn. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant."). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. In October 2015, the Veteran submitted an application to reopen the previously denied claim for service connection for right ear hearing loss, characterized as a claim for service connection for bilateral hearing loss. See 10/12/2015 VA 21-526EZ, Fully Developed Claim. In a November 2015 rating decision, the RO reopened the claim but denied service connection for right ear hearing loss. The Veteran appealed to the Board, and in July 2019 the Board found new and material evidence had been received, reopened, and then remanded the right ear service connection issue for further development, to include obtaining a VA examination to determine the nature and etiology of the Veteran’s right ear hearing loss. The Board also remanded the left ear issue for an examination to assess the current severity of his service-connected left ear hearing loss. See 07/09/2019 BVA Decision. The Veteran was then afforded a VA examination in December 2019. See 12/12/2019 C&P Exam. In September 2020, the RO granted the claim for service connection for right ear hearing loss, assigning an 80 percent evaluation, effective October 13, 2015, the date of the claim to reopen. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage is based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).   The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average pure tone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. §§ 4.85, 4.86. 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. 38 C.F.R. § 4.86(a). 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. 38 C.F.R. § 4.86(b). *** As noted above, the Veteran currently has an 80 percent rating for bilateral hearing loss, effective October 13, 2015. After a careful review of the evidence of record, the Board finds that the severity of the Veteran’s bilateral hearing loss disability does not warrant a higher rating now or at any point during the appeal period for the reasons discussed below. The Veteran underwent a VA examination in November 2015 to evaluate his bilateral hearing loss disability. 11/23/2015 C&P Exam. The following audiometry results were recorded: Right Ear HERTZ 1000 2000 3000 4000 70 80 80 80 Left Ear HERTZ 1000 2000 3000 4000 70 85 90 90 The puretone average for the right ear was 78 decibels (dB) and 84 for the left ear. Speech recognition scores were 80 percent in the right ear and 76 percent for the left ear. Based on the above results, the Veteran met the criteria for an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a). Thus, the Board will apply the test results to both Table VI and Table VIA, using whichever is more advantageous to the Veteran. See 38 C.F.R. § 4.86(a). Using Table VI, the Veteran has Level V hearing loss in the right ear and Level V in the left ear, while Table VIA yields Level VII hearing loss in the right ear and Level VIII in the left ear. Here, Table VIA results in a higher level of hearing impairment in both ears, and is therefore more advantageous to the Veteran. 38 C.F.R. § 4.85, Table VIA. Applying Level VII hearing loss in the right ear and Level VIII in the left ear to Table VII, DC 6100 equates to a 40 percent disability rating. In November 2016, the Veteran submitted a lay statement in which he reported that his bilateral hearing loss disability had increased in severity since the November 2015 examination. See VA 21-4138 Statement in Support of Claim. In April 2019, the Veteran testified before the undersigned regarding the severity of his bilateral hearing loss. See 04/30/2019 Hearing Transcript. He testified that he used bilateral hearing aids, but was still unable to hear the television or telephone conversations. See id. at 11. The Veteran’s wife also testified, and she reported that she has to stand directly in front of the Veteran or talk into his right ear in order for him to hear her. See id. at 10. Pursuant to the Board’s July 2019 remand, the Veteran underwent a VA examination in December 2019. See 12/12/2019 C&P Exam. Audiometry results were recorded as: Right Ear HERTZ 1000 2000 3000 4000 85 90 100 100   Left Ear HERTZ 1000 2000 3000 4000 100 100+ 100+ 100+ The Veteran’s puretone average in the right ear was 94 dB and 100 dB in the left ear. Speech recognition scores were 48 percent in the right ear and 16 percent in the left ear. Audiometry results from the December 2019 VA examination show at least 55 dB at each level measured, which is an exceptional pattern of hearing loss that triggers 38 C.F.R. § 4.85(a). Using Table VI, the Veteran has Level IX hearing loss in the right ear and Level XI in the left ear. Applying the results to Table VIA yields Level IX hearing loss in the right ear and Level X in the left ear. Here, Table VI results in a higher level of hearing impairment in the left ear, and is therefore more advantageous to the Veteran. 38 C.F.R. § 4.85, Table VI. Applying Level IX hearing loss in the right ear and Level XI in the left ear to Table VII, DC 6100 equates to an 80 percent disability rating. As noted previously, the results from the November 2015 examination equated to a 40 percent disability rating. See 11/23/2015 C&P Exam. Consequently, there is no medical evidence of record to support a higher disability rating than 80 percent for the Veteran’s service-connected bilateral hearing loss. The Board acknowledges the statements and testimony of the Veteran and his wife regarding the severity of his bilateral hearing loss. See 04/30/2019 Hearing Transcript at 10-11. The Board notes that the Veteran and his wife are competent to report these symptoms, and the Board also finds them credible, as the statements in this regard are consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board affords significant probative weight to the November 2015 and December 2019 audiometric test results, as they were prepared by clinicians with medical expertise in the field of audiology and directly address the rating criteria for the Veteran’s hearing loss disability. Accordingly, the Board finds that the competent medical evidence outweighs the Veteran’s subjective lay reports of a more severe degree of disability. Finally, the Board notes that VA's Schedule for Rating Disabilities contemplates the problems reported by the Veteran, such as communicating when using a telephone and difficulty hearing others, and the Veteran’s current 80 percent rating throughout the current period on appeal reflect this high-level of impairment and difficulty hearing. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Accordingly, the Veteran’s appeal for a higher rating for his service-connected bilateral hearing loss is denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence weighs against the claim. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND The Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, a remand is necessary to develop the claim for a TDIU that has been raised by the record. Entitlement to a TDIU is deemed to be a component of the claim for an increased rating in light of the Veteran's statement that his service-connected bilateral hearing loss prevents him from maintaining gainful employment. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also 04/30/2019 Hearing Transcript at 9.   The Veteran is currently in receipt of an 80 percent rating for his service-connected bilateral hearing loss, effective October 13, 2015. He therefore meets the minimum schedular criteria for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(a). However, the record lacks sufficient information to adjudicate this matter, such as a VA Form 21-8940 with information about the Veteran’s work history and educational background. Accordingly, the Board finds that entitlement to a TDIU must be remanded to the AOJ for further development. The matter is REMANDED for the following action: Send appropriate notice to the Veteran regarding entitlement to a TDIU, to include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran that he must provide the AOJ with his employment history and his educational background for proper adjudication of this matter. Additionally, complete any indicated development need to adjudicate TDIU. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont, 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.