Citation Nr: 21003284 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-31 310 DATE: January 21, 2021 ORDER Entitlement to a 10 percent rating for bilateral hearing loss disability prior to August 21, 2020 is granted. Entitlement to special monthly compensation (SMC) for deafness in both ears from August 21, 2020 is granted. REMANDED Entitlement to a separate rating for bilateral hearing loss manifest as balance issues prior to August 21, 2020 is remanded. FINDINGS OF FACT 1. Prior to August 21, 2020, the Veteran’s bilateral hearing loss disability was manifest by no worse than Level IV hearing in the right ear, and Level III hearing in the left ear. 2. From August 21, 2020, there is an absence of air and bone conduction upon examination where the Veteran has deafness in both ears equal to or greater than the minimum bilateral hearing loss required for a maximum disability rating. CONCLUSIONS OF LAW 1. Prior to August 21, 2020, the criteria for entitlement to a 10 percent initial rating, but no higher, for bilateral hearing loss disability are met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2020). 2. From August 21, 2020, the criteria for SMC for deafness of both ears have been met. 38 U.S.C. § 1114(k), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350, 4.85(g). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from January 1962 to January 1966. See DD 214 Certificate of Release of Discharge from Active Duty. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). See November 2015 Rating Decision-Narrative. In March 2020, the Veteran was afforded a VA hearing before the undersigned, and a transcript has been associated with the record. See March 2020 Hearing Transcript. In April 2020 the issue of entitlement to an initial compensable rating for bilateral hearing loss since June 30, 2014 was remanded. See April 2020 BVA Decision. Pursuant to the remand the Veteran was provided an August 2020 VA audiological examination, and although the examiner did not specifically discuss balance and speech, she did provide audiological testing, review the evidence of record which included the statements regarding balance and speech, and noted the functional effects the Veteran experienced. See August 2020 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. As such, the information provided is sufficient to permit the Board to adequately rate the Veteran’s hearing loss disability for auditory impairment rather than further delay adjudication, and the Board finds there has been substantial compliance with the remand instructions. See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders, but not strict compliance). 1. Entitlement to a compensable initial rating for bilateral hearing loss prior to August 21, 2020 The Veteran is currently in receipt of a noncompensable rating for his bilateral hearing loss from June 30, 2014, and a 100 percent rating from August 21, 2020 under 38 C.F.R. § 4.85, DC 6100. See October 2020 Rating Decision- Narrative. He continues his appeal for a compensable rating for the period prior to August 21, 2020. Furthermore, because the VA has a duty to maximize a veteran’s benefits, when evaluating a claim for hearing impairment, the Board must consider the applicability of 38 C.F.R. § 3.350 from the grant of the 100 percent rating, which provides that a veteran may be entitled to SMC due to deafness in both ears. 38 U.S.C. § 1114(k); 38 C.F.R. § 4.85(g). For VA purposes, deafness will be held to exist if there is an absence of air and bone conduction upon examination by a VA authorized audiology clinic under current testing criteria showing bilateral hearing loss, that is equal to or greater than the minimum bilateral hearing loss required for a maximum disability rating. Initial Rating Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings). Where the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Veteran’s bilateral hearing loss disability is evaluated under 38 C.F.R. § 4.86(a) (2020). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold and as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. The vertical columns in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal rows in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. The percentage evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (2020). The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone thresholds 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1000 hertz, and 70 dB 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. Factual Background and Analysis As was explained above, the resolution of this issue involves determining the level of hearing acuity in each ear. Notably, audiological assessments were accomplished in August 2015 and November 2015. However, they do not include Maryland CNC testing. See August 2015 Audiological Evaluation; see November 2015 Audiogram. Pursuant to 38 C.F.R. § 4.85(a), an audiological examination for VA purposes must include Maryland CNC speech discrimination testing. Without such testing, the examination is inadequate for rating purposes. An October 2015 audiological evaluation shows puretone thresholds, in decibels, (as interpreted by the Board) were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 45 75 85 59 LEFT 40 40 75 75 58 Speech audiometry testing revealed speech recognition ability of 80 percent in the right ear and 84 percent in the left ear. See October 2015 Augusta Hearing and Balance. Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear, and Level III in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level III for the left ear to 38 C.F.R. § 4.85 Table VII, equates to a ten percent rating. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An October 2015 VA audiological assessment shows puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 45 65 85 56 LEFT 40 40 65 75 55 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 84 in the left ear. See October 2015 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. The Veteran reported overall functional impairment from the hearing loss, described as inability to hear and problems with balance. Id. The Board observes that the balance problems are further addressed in the remand. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear, and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85 Table VII, equates to a noncompensable rating. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A September 2017 VA audiological assessment shows puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 65 65 70 60 LEFT 40 55 65 65 56 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 84 percent in the left ear. See September 2017 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire (noted in VBMS as 4/10/2018). The Veteran reported using hearing aids, but still having to ask people to repeat themselves. Id. Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear, and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85 Table VII, equates to a noncompensable rating. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In his June 2018 substantive appeal, the Veteran described his inability to hear without his hearing aids, inability to hear on the telephone, and keeping the volume on the television turned up because he was unable to hear it. See June 2018 VA Form 9. At a March 2020 Board hearing, the Veteran reported having to turn the television volume up higher to be able to hear. See March 2020 Hearing Transcript. His wife suggested that the Veteran had a speech impediment, or difficulty pronouncing words due to his hearing loss. Id. For reference, following the April 2020 remand to assess the Veteran’s current symptomatology, the Veteran was afforded an August 2020 VA examination on which his 100 percent evaluation since August 21, 2020 is awarded. See October 2020 Rating Decision - Narrative; see April 2020 BVA Decision; see August 2020 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 80 100 100 105+ LEFT 75 90 105 105+ 105+ Speech audiometry revealed speech recognition ability of 32 percent in the right ear and of 20 percent in the left ear. See August 2020 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. The examiner indicated that records were reviewed, to include the remand. The Veteran reported that when he was not using his hearing aids, he did not hear anything. Id. The Veteran reported that even with hearing aids he had difficulty understanding speech. Id. He did not, however, report balance issues. Id. As such, with puretone thresholds at each for the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) above 55 decibels, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown. Accordingly, each ear will be evaluated separately, and the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral will be applied. 38 C.F.R. § 4.86(a). Applying the results to Table VI the numerical designation yields results of Level XI in the right ear, and in the left ear, which corresponds to a 100 percent rating under Table VII. See 38 C.F.R. § 4.85. Applying the results to Table VIA results in Level IX for the right ear, and Level X for the left ear, which corresponds to a 70 percent rating. Accordingly, Table VI yields the more advantageous results corresponding to the 100 percent rating. In October 2020, the VA examiner provided an addendum opinion that the date of the Veteran’s increase in hearing loss could not be determined based on evidence from the exam, and that according to the earlier October 2015 examination report, the hearing loss was already at a higher rate at that time. See October 2020 VES Addendum to Provider. The Board acknowledges that the Veteran reported experiencing balance problems and his wife indicated that his speech was affected. The Board is remanding the issue of balance problems as manifestations of bilateral hearing loss on the basis of the October 2015 VA provider’s concern that there was vestibular involvement. See October 2015 Augusta Uptown VA Medical Center records received October 2015 in CAPRI. This is discussed further below. As to the statements regarding speech as related to bilateral hearing loss, the Veteran and his wife are competent as to the experience of the symptoms; however, they are not competent to provide an underlying diagnosis much less competent to attribute any such diagnosis or functional impairment to the service-connected hearing loss disability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Evaluating hearing loss and neurological disorders is medically complex and so requires expertise in those fields. Id. For instance, diagnosis and evaluation of hearing loss require audiometric testing according to VA regulations. See 38 C.F.R. §§ 3.385, 4.85. Further, the Board acknowledges the Veteran’s contention that he is entitled to a compensable rating for his bilateral hearing loss prior to August 21, 2020. As noted above, the assignment of the disability rating for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Furthermore, the Court held that “the rating criteria for hearing loss contemplates the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment”—which “are precisely the effects that VA’s audiometric tests are designed to measure’’— and that “when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.” See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Board finds that the audiological assessments performed by state-licensed audiologists, and included the controlled speech discrimination test using the Maryland CNC test are the most probative evidence regarding the severity of the Veteran’s bilateral hearing loss disability. To summarize, based on the audiological testing prior to August 21, 2020, the Veteran’s audiometric results from 2015 and 2017 include an October 2015 private audiological evaluation that warrants a 10 percent rating, but no higher. See October 2015 Augusta Hearing and Balance. In applying the rating criteria to the audiological test results, and resolving reasonable doubt in the Veteran’s favor, a 10 percent rating is warranted. 38 C.F.R. §§ 4.3, 4.7. More than two years after the 2017 audiological evaluation, the August 2020 audiometric testing results supported an award of 100 percent for the Veteran’s bilateral hearing loss. The Board has considered the October 2020 VA examiner’s addendum opinion that the Veteran’s hearing loss was already at a higher rate at the 2015 VA examination, and an exact date for the increase could not be determined; however, the Board finds this opinion is unsupported by the evidence, and contradicted by the audiological findings which show no greater than a 10 percent level of impairment in 2015. Accordingly, this October 2020 addendum opinion is not provided probative weight. Nevertheless, this does not undermine the audiological findings which were provided by the examiner in August 2020, and on which the 100 percent rating from August 21, 2020 has been granted. Therefore, for the period prior to August 21, 2020, the Veteran is granted a 10 percent rating, but no higher, for his bilateral hearing loss disability. 38 C.F.R. §§ 4.3, 4.7. However, as to be explained further in the Remand below, additional development is required as to whether a separate rating for bilateral hearing loss manifest as balance issues prior to August 21, 2020 is warranted. 2. Entitlement to SMC for deafness in both ears from August 21, 2020 Finally, as noted the Veteran is in receipt of a 100 percent rating from August 21, 2020 for his bilateral hearing loss disability based on the audiometric results obtained on VA examination. See October 2020 Rating Decision- Narrative. The inquiry does not end with the grant of a 100 percent disability rating. Pursuant to Table VII, in the event a 100 percent disability rating is assigned, the Board must consider entitlement to SMC pursuant to 38 C.F.R. § 3.350. 38 C.F.R. § 4.85, Table VII. Since the August 2020 VA examination report was conducted in accordance with 38 C.F.R. § 3.350, and it establishes bilateral deafness equal to or greater than the minimum bilateral hearing loss required for a maximum disability rating, the Board finds SMC is warranted effective August 21, 2020. See August 2020 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. REMAND 3. Entitlement to a separate rating for bilateral hearing loss manifest as balance issues prior to August 21, 2020 Remand is necessary to address whether the Veteran is entitled to a separate rating for balance issues as a manifestation of his bilateral hearing loss for the period prior to August 21, 2020. An October 2015 VA treatment note indicates that the gait and balance center noted composite results were inconclusive, and rotary chair testing was recommended to further explore the possibility of vestibular involvement with the Veteran’s symptoms. See October 2015 Augusta Uptown VA Medical Center records received October 2015 in CAPRI. A January 2016 treatment note indicated that balance testing revealed results within normal limits, but calorics were not able to be completed due to the Veteran having very narrow ear canals. See January 2016 Augusta Uptown VA Medical Center records received September 2020. The audiologist noted that rotary chair testing had been recommended, but that the Veteran did not wish to return for testing at that time. Id. At an October 2015 VA examination, the Veteran reported overall functional impairment from the hearing loss, described as inability to hear and problems with balance. See October 2015 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. In October 2020, the VA examiner provided an addendum opinion that the date of the Veteran’s increase in hearing loss could not be determined based on evidence from the exam, and that according to the earlier October 2015 examination report, the hearing loss was already at a higher rate at that time. See October 2020 VES Addendum to Provider. In November 2015, the Veteran indicated that on account of his hearing loss he lost his balance and could not live a normal life. See December 2015 Notice of Disagreement. In August 2020 following audiological examination, the examiner indicated that the Veteran did not report balance issues. See August 2020 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. The examiner did not otherwise address the Veteran’s balance problems. Id. Specifically, the statement by the examiner that the Veteran did not report balance issues, as opposed to phrasing that indicates the Veteran denied having balance issue, causes the Board uncertainty as to whether the examiner actually attempted to elicit information from the Veteran about his balance issues. Accordingly, remand is necessary to obtain a fully informed opinion with supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In addition, the Board finds that clarification of the October 2020 addendum opinion is necessary. 38 C.F.R. § 4.2. Specifically, the October 2020 VA examiner’s addendum opinion that the Veteran’s hearing loss was already at a higher rate at the 2015 VA examination should be remanded for the examiner to either provide an assessment of what higher rating might be appropriate or provide an explanation for why a rating cannot be identified. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). On remand, the examiner is requested to specifically discuss the Veteran’s balance in relation to the schedule of ratings for diseases of the ear, which includes consideration of peripheral vestibular diseases and Meniere’s syndrome. The examiner should elicit information specifying the Veteran’s symptoms so that the Board can fully understand the scope of the Veteran’s bilateral hearing loss disability, in addition to his hearing impairment prior to August 21, 2020. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). Accordingly, the case is REMANDED for the following action: The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 1. Schedule the Veteran for a VA examination and obtain a retrospective VA opinion (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the severity of the Veteran’s balance issues as a manifestation of his bilateral hearing loss prior to August 21, 2020. (a) The examiner is requested to opine as to whether it is at least as likely as not the Veteran’s reported balance problems are symptoms of his bilateral hearing loss disability. (b) If not, then the examiner should opine whether it is at least as likely as not the balance problems are at least as likely as not related to his service-connected bilateral hearing loss disability. (c) If not, then the examiner should opine as to whether it is at least as likely as not that the balance problems underwent any incremental increase due to the Veteran’s service-connected bilateral hearing loss. (i) The examiner must consider and discuss the VA and private examinations from October 2015 and the August 2020 VA examination. (ii) The examiner must address functional limitations related to hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). (d) The examiner should review the October 2020 addendum and provide a rationale for finding that “Based on the examination dated 10-26-15, this hearing loss was already at a higher rate at that time.” (i) This should include (but not limited to) whether the findings at the October 26, 2015 examination adequately portrayed the Veteran’s hearing loss. Please provide citations to the record for the basis of this explanation, as well as any studies relied upon to arrive at this conclusion. • Any opinion expressed must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). • If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barner, 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.