Citation Nr: 21002926 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-37 308 DATE: January 19, 2021 ORDER An initial compensable rating for bilateral hearing loss prior to November 14, 2019, and in excess of 20 percent, thereafter, is denied. Entitlement to service connection for a low back disorder, to include as secondary to a left ear disability, is granted. Entitlement to service connection for a bilateral hip disorder, characterized as bilateral hip strain, to include as secondary to a left ear disability, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to October 5, 2016, the Veteran was not service connected for hearing loss in his right ear. 2. During the period prior to November 14. 2019 the Veteran’s hearing loss in his right ear was characterized as no worse than Level I, his hearing loss in his left ear was characterized as no worse than Level II. 3. Since November 14, 2019 the Veteran’s hearing loss in his right ear was characterized as no worse than Level IV, his hearing loss in his left ear was characterized as no worse than Level V. 4. The predominance of the evidence indicates that the Veteran’s low back disorder is proximately caused by the Veteran’s service connected left ear disorder, diagnosed as perforated tympanic membrane with scarring, pain, and dizziness. 5. The predominance of the evidence indicates that the Veteran’s bilateral hip disorder is proximately caused by the Veteran’s service connected left ear disorder, diagnosed as perforated tympanic membrane with scarring, pain, and dizziness. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss prior to November 14, 2019, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 2. The criteria for entitlement to service connection for a low back disorder, to include as secondary to a left ear disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for a bilateral hip disorder, characterized as bilateral hip strain, to include as secondary to a left ear disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1962 to May 1962. The above matters return to the Board of Veterans’ Appeals (Board) following the issuance of a February 2019 remand order which directed the Regional Office (RO) to complete additional development. The Veteran testified at a Board hearing in February 2019 before the undersigned Veterans’ Law Judge, a transcript of that hearing is of record. Additionally, the Board notes that the Veteran has another active claim for an increased rating for his left ear disability, diagnosed as perforated tympanic membrane with scarring, pain, and dizziness. The Veteran testified before another Veterans’ Law Judge in the furtherance of his claim, as such, it will be adjudicated separately from this claim. Increased Ratings 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. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In rating hearing loss, disability ratings are derived from the mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Disability ratings of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85 (b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85 (d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85 (e). 1. An initial compensable rating for bilateral hearing loss prior to November 14, 2019, and in excess of 20 percent thereafter The Veteran is seeking a higher rating for his service-connected bilateral hearing loss. Specifically, he has indicated that he believes that his ratings are not accurate to the degree of disability he experiences. In the instant case, only the hearing loss in the left ear was service connected during the period prior to October 5, 2016. Under 38 C.F.R. § 4.85(f), if impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of § 3.383. Therefore, for the purposes of applying 38 C.F.R. § 4.85(f) to Table VII, the Board designates the non-service-connected right ear to have only, at most, Level I hearing loss. Prior to November 14, 2019 Based on the evidence contained in the audiological examinations performed prior to November 14, 2019, a compensable rating is not warranted. Specifically, in April 2013, an audiometric test revealed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average LEFT 45 40 35 60 75 51 Speech discrimination scores were recorded as 96 percent in the left ear. Applying these values to Table VI, the Veteran displayed Level I hearing in the left ear, and Level I hearing in the right ear when applying 38 C.F.R. § 4.85(f) as hearing loss in his right ear remained un-service-connected at this time. Applying these values to Table VII, a compensable rating would not be warranted. It is important to note that the Veteran’s right ear hearing loss was service connected by the RO with an effective date of October 5, 2016. As such, the following audiometric test results will not be evaluated using 38 C.F.R. § 4.85(f). Next, the Veteran’s hearing loss was evaluated at a December 2016 VA examination. Audiometric test revealed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 60 55 55 35 50 48.75 LEFT 75 55 75 75 75 70 Speech discrimination scores were recorded as 100 percent in the right ear, and 96 percent in the left. Applying these values to Table VI, the Veteran displayed Level I hearing right ear and Level II in the left. Applying these values to Table VII, a compensable rating would not be warranted. Additionally, the Veteran’s hearing loss was evaluated at a May 2017 VA examination. Audiometric test revealed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 25 20 25 30 45 30 LEFT 40 35 30 50 65 45 Speech discrimination scores were recorded as 94 percent in the right ear, and 96 percent in the left. Applying these values to Table VI, the Veteran displayed Level I hearing in both the right and left ears. Applying these values to Table VII, a compensable rating would not be warranted. The Board observes that the Veteran’s December 2016 audiometric readings appeared to show a large decrease in the Veteran’s hearing. However, given the relative similarity between the April 2013 and May 2017 test results, the Board considers the scores from the December 2016 test to be outliers and not indicative of a shift in tonal threshold to such a degree as was indicated. Since November 14, 2019 The Veteran was evaluated by a private physician in November 2019. This audiometric test revealed average puretone threshold losses, in decibels, of 31 in the right ear, and 58 in the left. Speech discrimination scores were recorded as 72 percent in the right ear and 58 percent in the left ear. Applying these values to Table VI, the Veteran displayed Level IV hearing in the right ear and Level V in the left ear. Applying these values to Table VII, a rating in excess of 20 percent would not be warranted. No further evidence has been presented by the Veteran or his attorney to illustrate a further worsening of his hearing loss. The Veteran’s medical records do not indicate a worsening of his hearing loss during either period beyond what is contemplated in the ratings assigned for those periods. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran and his attorney that his bilateral hearing loss is worse than the ratings assigned for both periods on appeal. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his bilateral hearing loss according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s bilateral hearing loss have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. In sum, the Board has considered all of the evidence of record, including the available audiogram results, and finds that the Veteran’s assigned bilateral hearing loss ratings accurately contemplate the severity of his disability during both periods on appeal. A compensable rating for the period prior to November 14, 2019 is not warranted, similarly, a rating in excess of 20 percent for the period since November 14, 2019 is not warranted. The Veteran’s claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service, to include as secondary to and/or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), 3.304, 3.307, 3.309, 3.310. 2. Entitlement to service connection for a low back disorder, to include as secondary to a left ear disability 3. Entitlement to service connection for a bilateral hip disorder, characterized as bilateral hip strain, to include as secondary to a left ear disability The Veteran asserts that his low back and bilateral hip disorders are related to his service-connected left ear disability, diagnosed as diagnosed as perforated tympanic membrane with scarring, pain, and dizziness. In this case, based on the evidence of record, the Board determines that service connection is warranted for the Veteran’s low back and bilateral hip disorders. Further, the evidence, including the credible statements from the Veteran, in conjunction with the opinions from the January 2020 and August 2020 VA examiners, reflect that his low back and bilateral hip disorders have been proximately caused by his service-connected left ear disorder. Specifically, in support, these VA examiners opined that the Veteran’s falls, caused by his left ear disorder, lead to the development of both his low back and bilateral hip disorders. Additionally, the Veteran submitted an opinion by a private physician in May 2017 who opined that his low back disorder was caused by falls due to his left ear disability. In arriving at this conclusion, the Board acknowledges the negative evidence, including the opinions from the February 2020 and March 2020 examiners who indicated that there was no evidence to support a diagnosis for a bilateral hip disorder. However, the Board notes that these examiners did not discuss the Veteran’s January 2020 diagnosis of bilateral hip strain, nor his comments regarding his bilateral hip pain and functional limitations due to this pain. Accordingly, the Board finds that the opinions proffered by the January 2020 and August 2020 VA examiners to be more probative than those authored by the February and March 2020 examiners. As a result, the Board finds that service connection is warranted for both the Veteran’s low back and bilateral hip disorders. 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. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In the above decision, the Board has granted service connection for low back and bilateral hip disorders. To the extent that these grants may have a direct bearing on the Veteran’s schedular entitlement to TDIU, the Board must remand this claim so that the RO may institute the Board’s orders and assign ratings for his low back and bilateral hip disorders.   The matters are REMANDED for the following action: 1. The RO should issue a rating decision instituting the Board’s grants contained herein. Thereafter, the RO should readjudicate the issue of entitlement to TDIU based on the Board’s findings in the above decision. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel