Citation Nr: 21003317 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-33 261 DATE: January 21, 2021 ORDER Entitlement to a compensable initial rating for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDING OF FACT The Veteran’s bilateral hearing has been 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 a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, diagnostic code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to June 1968. The appeal of entitlement to a compensable initial rating for bilateral hearing loss comes before the Board of Veterans’ Appeals (Board) on appeal of September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU due to service-connected disabilities is part of an increased rating claim when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of the appeal, in May 2020, the Veteran filed a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, indicating that his service-connected disabilities, including his bilateral hearing loss disability, rendered him unable to secure or follow any substantially gainful occupation. Such claim is being developed by the RO and adjudication was most recently deferred in October 2019, however, pursuant to Rice, the issue is also part of the increased rating appeal. Accordingly, the Board finds that entitlement to a TDIU due to service-connected disability is properly before the Board. This appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Entitlement to an initial compensable rating for bilateral ear hearing loss The Veteran seeks entitlement to a compensable initial rating for his service-connected bilateral hearing loss. He asserts that he has not been assigned a higher rating for his bilateral hearing loss because the Board, the RO and VA medical examiners are prejudiced against him. Specifically, the Veteran asserts that because the Board’s August 2016 decision which denied service connection for bilateral hearing loss was vacated and remanded, the Board and the RO are prejudiced against him, have ignored the results of the April 2018 VA examination and that VA examiners have falsified reports. See December 2018 Notice of Disagreement. The Veteran last underwent a VA examination for hearing loss in April 2018. The Veteran’s representative has requested that if the appeal is not granted, that a new examination be conducted to ascertain the current severity of the Veteran’s bilateral hearing loss disabilities. Where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). The mere passage of time is not a basis for requiring a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Neither the Veteran or his representative has asserted, and the medical evidence does not reflect, that the Veteran’s bilateral hearing loss disability has worsened in severity since the April 2018 VA examination. Numerous VA treatment records during the appeal period proximate to the April 2018 VA examination reflect that, upon review of systems, the Veteran denied having hearing problems. Thus, the evidence does not reflect that the Veteran’s bilateral hearing loss disability has worsened since the April 2018 VA examination, and a new examination is not required. The Veteran’s claim for a compensable initial rating for bilateral hearing loss stems from the September 2018 rating decision which granted service connection for bilateral hearing loss, effective September 27, 2010. Thus, the relevant period on appeal for entitlement to an initial compensable initial rating for bilateral hearing loss is from September 27, 2010, the effective date of service connection. 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 ratings are 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 (2018). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). To evaluate the degree of hearing loss disability, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. 38 C.F.R. § 4.85. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak v. Nicholson, 21 Vet. App. 447 (2007); Lendenmann v. Principi, 3 Vet. App. 345, 349. Other than in exceptional cases of hearing loss, VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear. A review of the medical evidence of record does not show the Veteran to have bilateral hearing loss to a compensable degree at any time during the period on appeal. During the period on appeal from September 2010, the Veteran had a VA audiological examination in May 2011. The VA examiner reviewed the record, interviewed the Veteran, and conducted an in-person examination. The examination results show that the Veteran’s average puretone threshold (calculated by taking the average, in decibels, of the thresholds at 1000, 2000, 3000, and 4000 hertz) in the right ear was 25 decibels while the average in the left ear was 36.25 decibels. Speech audiometry showed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 and § 4.86 to these audiometric results yields a roman numeral I for the right ear; and a roman numeral I for the left ear, based on Table VI. A combination of I and I equates to a noncompensable disability rating according to Table VII. The Veteran had an audiological examination at VA Medical Center Dayton in January 2017. The examination was done in order to outfit the Veteran with new hearing aids. The examination results show that the Veteran’s average puretone threshold (calculated by taking the average, in decibels, of the thresholds at 1000, 2000, 3000, and 4000 hertz) in the right ear was 25 decibels while the average in the left ear was 33 decibels. Speech audiometry showed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 and § 4.86 to these audiometric results yields a roman numeral I for the right ear; and a roman numeral I for the left ear, based on Table VI. A combination of I and I equates to a noncompensable disability rating according to Table VII. In April 2018, the Veteran had a VA examination for hearing loss and tinnitus. As previously noted, in the December 2018 Notice of Disagreement, the Veteran asserts that the Board and the AOJ ignored the April 2018 VA examination results, but such is not the case. The Board’s last ruling pertaining to the Veteran’s bilateral hearing loss was in November 2017 prior to the April 2018 VA examination and the RO addressed the April 2018 VA examination results in the September 2018 rating decision. At the April 2018 VA examination, the examiner reviewed the record, interviewed the Veteran, and conducted an in-person examination. The results of the examination show that the Veteran’s average puretone threshold (calculated by taking the average, in decibels, of the thresholds at 1000, 2000, 3000, and 4000 hertz) in the right ear was 41 decibels while the average in the left ear was 34 decibels. Speech audiometry showed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 and § 4.86 to these audiometric results yields a roman numeral I for the right ear; and a roman numeral I for the left ear, based on Table VI. A combination of I and I equates to a noncompensable disability rating according to Table VII. In the August 2020 Appellant’s brief, the Veteran, through his representative, asserts that the April 2018 VA examiner did not question him, that he recalls, about his employability, however, the VA examiner addressed the functional impact of the Veteran’s bilateral hearing loss disability and opined, that based on the results of the examination, that the Veteran’s bilateral hearing loss does not impact his ordinary conditions of daily life, including his ability to work. Of note, in the August 2020 Appellant’s brief, the Veteran, through his representative, asserts that the April 2018 VA examination report is “remarkably different” than the May 2011 audiological report, however the examination reports consistently show that the Veteran’s hearing loss disability equates to a noncompensable disability rating. The Veteran has not submitted additional medical evidence or indicated that there are outstanding medical records to show his bilateral hearing loss is worse than shown in the above examinations. Further, he has not asserted that his bilateral hearing loss has worsened since the April 2018 VA examination necessitating a new examination or that he has additional functional from his bilateral hearing loss disability that has not been considered. Thus, VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although the Veteran asserts that the RO and the Board ignored the April 2018 VA examination results, which he contends show that he is entitled to an increased rating, which is incorrect, he also asserts that the audiological examinations are inadequate because the examiners falsified the examination reports. The Veteran’s arguments are contradictory. Furthermore, the May 2011, January 2017 and April 2018 examination reports do not reflect examiner bias or raise doubts regarding the examiners’ credibility and reliability. The examiners reviewed the Veteran’s claims file and provided in-person examinations of the Veteran and objective testing. As such, the Board finds that the May 2011, January 2017 and April 2018 examiners, are credible. There is no evidence showing that, at any time during the appeal period, the Veteran manifested an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. Thus, the Board finds that a compensable initial rating for bilateral hearing loss is not warranted. The examination of record reflect hearing no worse than Level I hearing acuity for the right ear and Level I for the left ear. The assignment of disability evaluations for hearing impairment is a mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board has considered the fact that the Veteran contends that his hearing loss disability warrants a compensable rating. However, the Board is bound in its decisions by the VA regulations governing the rating of hearing loss. 38 U.S.C. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test. Application of the schedule to the facts of this case shows that a compensable rating is not warranted. The Veteran has not asserted that he has additional functional impairment that is not considered in the current schedular rating criteria. As observed above, this exercise is a mechanical one, with no interpretative leeway. Lendenmann. The Board must follow the law and regulations as written and apply them equally to all similarly-situated Veterans. In making this determination, the Board considered the application of staged ratings but found no distinctive period(s) where the Veteran’s service-connected bilateral hearing loss met or nearly approximated the criteria for a higher rating than that assigned. As the preponderance of the evidence is against any increase for bilateral hearing loss disability, the benefit of the doubt rule is not applicable in this situation. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, a compensable initial rating for service-connected bilateral hearing loss is not warranted and the appeal is denied. REASONS FOR REMAND As previously noted, in the October 2019 rating decision, the RO deferred entitlement to a TDIU due to service-connected disability for further development. Thus, the Board must remand the Veteran’s appeal of entitlement to a TDIU due to service-connected disability pursuant to Rice, raised herein, pending the completion of the development undertaken by the RO. Take appropriate action to develop and adjudicate the issue of entitlement to a TDIU due to service-connected disabilities. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, Associate 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.