Citation Nr: 21004475 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-28 312A DATE: January 27, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss, prior to August 1, 2019 is denied. Entitlement to a disability rating of 30 percent and no higher, for bilateral hearing loss, from August 1, 2019 and no earlier, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to August 1, 2019, the Veteran’s service-connected bilateral hearing loss disability has not more nearly approximated the criteria for a compensable initial evaluation when mechanically applying the diagnostic criteria to the audiological testing results. 2. Resolving all reasonable doubt in the Veteran’s favor, from August 1, 2019 forward, the Veteran’s service-connected bilateral hearing loss disability most nearly approximated the criteria for a 30 percent evaluation, but no higher. CONCLUSIONS OF LAW 1. Prior to August 1, 2019, the criteria for the assignment of a compensable initial for service-connected bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100. 2. From August 1, 2019, the criteria for the assignment of a 30 percent evaluation, but no higher, for service-connected bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Army from May 1957 to February 1959. This matter comes before the Board of Veteran’s Appeals (Board) from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2020 when the matter was remanded for a VA examination. The Board finds the April 2020 remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the appeal, the Veteran’s hearing loss disability rating was increased from noncompensable to 30 percent, with an effective date of September 29, 2020. As this increase did not constitute a full grant of the benefit sought on appeal, the claim is still on appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board has recharacterized the Veteran’s claim as it appears on the title page of this decision to reflect the mentioned increase, the evidence of record, as well as the Board’s findings and conclusions. A claim for a TDIU is part and parcel of an increased rating claim where, as here, a claimant asserts that his service-connected disabilities prevent him from working. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). The issue of a TDIU is addressed in the remand portion of this decision. 1. Entitlement to an initial compensable disability rating for bilateral hearing loss, prior to August 1, 2019 2. Entitlement to a disability rating of 30 percent and no higher, for bilateral hearing loss, from August 1, 2019 and no earlier The Veteran seeks a compensable disability rating prior to August 1, 2019 for his hearing loss. In favor of his claim, the Veteran has asserted that the noncompensable disability rating assigned to his disability prior to August 1, 2019 did not accurately reflect the severity of his condition. The Veteran has also asserted that while VA examined his hearing in February 2017, that the examination did not reflect the real level of his disability because the examination was done using a male voice when the Veteran had reported that his hearing issues were more pronounced with female voices or high-pitch voices. See Notice of Disagreement of March 2017. As this claim stems from the initial rating assigned to the Veteran’s hearing loss disability, the appeal period is from the effective date of the award of service connection for hearing loss, September 23, 2016, forward. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s bilateral hearing loss is currently evaluated under the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6100. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 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. § 4.85 (a). The provisions of 38 C.F.R. § 4.86 (b) further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s medical records have been associated with the claims file. In September 2016, the Veteran submitted a private audiogram performed that same month, however, only the graphic representation of the audiogram was included in the record, with no numeric interpretation or Maryland CNC test results provided. Nevertheless, as the audiometric results were conveyed in straightforward graphs, the Board finds that it, as the finder of fact, can interpret the charts to determine the numeric values of the pure tone levels of adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). The examination revealed the following results: 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average Right ear 30 60 55 55 50 Left ear 35 60 55 55 51.25 Critically, the Board notes that this September 2016 evaluation is inadequate for VA rating purposes because no further testing, to include the Maryland CNC test, was performed, as per the governing regulation discussed above. In January 2017, the Veteran underwent another private evaluation for his hearing loss. The Board notes that again, only the graphic representation of the audiogram was included in the record, with no numeric interpretation provided. Nevertheless, as the audiometric results were conveyed in straightforward graphs, the Board finds that it, as the finder of fact, can interpret the charts to determine the numeric values of the pure tone levels of adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average Right ear 25 65 50 50 47.5 Left ear 25 60 55 60 50 The private audiologist also subscribed a letter, where he noted that the Veteran’s speech discrimination was 84 percent on the right ear and 86 percent in his left ear. Although in the letter the audiologist did not note which test was used to arrive at the Veteran’s speech recognition scores, the page that contained the graphic presentation of the audiogram included a note specifying that word discrimination was performed using live voice with CID W-22 word list. Accordingly, these speech discrimination scores cannot be used for rating purposes as the regulation specifies that the Maryland CNC word list must be used for rating purposes. In February 2017, the Veteran underwent an audiological VA examination which revealed the following results: 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average Right ear 20 60 55 50 46 Left ear 30 65 60 55 53 The Veteran’s speech recognition ability, using the Maryland CNC word list, was evaluated at 86 percent for the right ear and 84 percent for the left ear. See VA examination of February 2017. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Applying those values to Table VI, the numeric designation of hearing impairment is no worse than level II for the right ear and level II for the left ear. See 38 C.F.R. § 4.86 (a), Diagnostic Code 6100. When these numeric designations from the VA examination are applied to Table VII, the percentage of disability for hearing impairment is 0 percent or noncompensable. In August 2019, the Veteran underwent another VA audiological evaluation which revealed the following results: 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average Right ear 45 55 55 Left ear 40 60 55 This August 2019 report did not provide numerical values for all the frequencies in order to compute the average puretone thresholds required to objectively assess the severity of the Veteran’s hearing loss. 38 C.F.R. § 4.85. Therefore, the August 2019 audiometric testing is not valid for rating purposes. Additionally, this report notes that although speech recognition testing was performed, the examiner determined that the results were not valid for rating purposes. However, the Veteran’s speech discrimination was noted to be 68 percent for the right ear and 80 percent for the left ear. See VA medical records for August 2019. In September 2020, the Veteran was re-administered a VA examination for his hearing loss, pursuant to the Board remand instructions. This September 2020 examination revealed the following results: 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz Average Right ear 35 65 65 70 58.75 Left ear 45 70 75 80 67.5 In this examination, the Veteran’s speech recognition ability, using the Maryland CNC word list, was evaluated at 64 percent for the right ear and 68 percent for the left ear. See VA examination of September 2020. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Applying those values to Table VI, the numeric designation of hearing impairment is no worse than level VI for the right ear and level VI for the left ear. See 38 C.F.R. § 4.86 (a), Diagnostic Code 6100. When these numeric designations from the VA examination are applied to Table VII, the percentage of disability for hearing impairment is 30 percent. Based on the examination of September 2020, the RO increased the Veteran’s disability rating from noncompensable to 30 percent, effective September 29, 2020- the date of the examination. While noting that the criteria for a 30 percent initial evaluation were demonstrated at the September 2020 VA examination, the Board takes exception with the effective date assigned for this increase based on the unique facts of this case. Specifically, as recounted above, there is evidence in the record showing that the severity of the Veteran’s service-connected bilateral hearing loss worsened as early as August 2019. However, the Veteran was deprived of an opportunity to demonstrate the full extent of this worsening due to the inadequacy of the testing provided by the August 2019 VA audiologist. The Board is cognizant of the fact that an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all the facts should be examined to determine the date the disability first manifested. Accordingly, the effective date for an increased rating, initial rating, or staged rating is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be considered, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 3536 (2000). In light of the above, the Board will resolve all reasonable doubt in the Veteran’s favor in concluding that the criteria for a 30 percent evaluation were closely approximated on August 1, 2019, but no earlier; the date it was factually ascertainable based on a VA audiological evaluation that there had been a worsening in the Veteran’s hearing disability. The Board notes that in March 2017, the Veteran presented arguments in favor of a higher initial disability rating for his hearing loss. The Veteran explained that his hearing issues are more noticeable with female voices or high-pitch voices. He also noted that the February 2017 examination was done using a male voice for the speech discrimination part and that the examiner told him to guess the words. See notice of disagreement of March 2017. While the Board recognizes the Veteran’s statements, the Board notes that other audiological examinations performed by private audiologists close in time to the February 2017 VA examination did not reveal significantly different results nor results that would support a higher disability rating at the time. The Board also notes that it is presumed that the February 2017 VA examiner, an audiologist, was qualified to perform the examination and performed the examination in an appropriate manner. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009) (confirming that the presumption of regularity not only applies to procedural matters, but also applies to the competency of medical professionals). Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992). A statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley, 2 Vet. App. at 64-65. Consequently, the Board does not find that the Veteran has demonstrated that the February 2017 audiologist was unqualified or that the record contains clear evidence to support the Veteran’s assertion of an inadequate examination protocol that rendered the results unreliable. See generally Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Therefore, the Board finds that the February 2017 VA examiner adhered to standard regulations and procedures in performing the examination to determine the severity of the Veteran’s hearing loss. The Board also notes the Veteran’s testimony at the July 2019 hearing where he asserted that his disability had worsened since the February 2017 VA examination. While the Board is sympathetic to the Veteran’s assertions that his hearing loss had worsened, and finds the statements competent and credible in regard to reporting worsening hearing acuity, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. Thus, the Veteran’s subjective report of increased difficulty hearing unfortunately cannot be the basis for an evaluative rating and the Board must afford a higher probative value to the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In other words, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The Board emphasizes that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, based on all of the above, the Board finds that prior to August 1, 2019, the Veteran’s hearing loss disability was manifested by no worse than Level II hearing acuity for the right ear and Level II hearing acuity for the left ear and resolving all reasonable doubt in the Veteran’s favor, the criteria for a 30 percent evaluation were closely approximated on August 1, 2019, but no earlier. Therefore, a compensable disability rating prior to August 1, 2019 is not warranted and resolving doubt in the Veteran’s favor a 30 percent disability rating is warranted from August 1, 2019 and no earlier, for the Veteran’s hearing loss, as Board finds that it was factually ascertainable on August 1, 2019 that an increase in the disability had occurred. A disability rating in excess of 30 percent for the Veteran’s hearing loss is not warranted at any time during the appeal period. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis, is remanded. The Veteran asserted in his NOD that he had to resign his position as a math professor due to his inability to understand his students, due to his service-connected hearing loss. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran is currently service connected for tinnitus rated at 10 percent disabling from September 29, 2020 and hearing loss rated as noncompensable from September 23, 2016 and at 30 percent disabling from August 1, 2019. Accordingly, the Veteran has not met the schedular disability rating criteria at any time during the appeal period and a TDIU, on a schedular basis, is not warranted. However, the Veteran has asserted that his service-connected disabilities render him unable to secure and follow substantially gainful employment. See generally NOD and hearing transcript. Thus, the Board finds that this claim must be remanded for consideration by the Director of Compensation Services for adjudication of TDIU eligibility in accordance with 38 C.F.R. § 4.16 (b), as the Veteran does not meet schedular TDIU requirements (even considering the grant herein) and the evidence shows that the Veteran may have been unable to secure or maintain substantially gainful employment during the pendency of the appeal due to his service-connected disabilities. This is the appropriate action as the Board may not assign an extraschedular evaluation in the first instance. The matters are REMANDED for the following action: 1. Issue a notice letter to the Veteran concerning the claim for a TDIU. Ask him to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development necessary. 2. After the Veteran is afforded an appropriate time to submit the completed form and any other evidence, refer the case to the Director of Compensation Service for a determination as to whether the Veteran is entitled to an extraschedular TDIU in accordance with the provisions of 38 C.F.R. § 4.16 (b). The rating board should include a full statement of all factors having a bearing on the issues. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.