Citation Nr: 21066625 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-52 142 DATE: November 1, 2021 ORDER Entitlement to an increased rating for bilateral hearing loss currently rated as 10 percent disabling prior to August 10, 2016, 20 percent from August 10, 2016, and 40 percent from August 19, 2021, is denied. REMANDED Service connection for vertigo is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected conditions is remanded. FINDINGS OF FACT 1. From May 23, 2011, to August 9, 2016, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level II in the right ear and Level II in the left ear. 2. From August 10, 2016, to August 18, 2021, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level VI in the right ear and Level V in the left ear. 3. From August 19, 2021, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level VII in the right ear and Level VII in the left ear. CONCLUSION OF LAW 1. The criteria for entitlement to an increased rating for bilateral hearing loss currently rated as 10 percent disabling prior to August 10, 2016, 20 percent from August 10, 2016, and 40 percent from August 19, 2021, 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 (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1964 to August 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By way of background, the Board previously remanded the Veteran's increased rating claim for bilateral hearing loss and service connection for vertigo for additional development in a June 2021 decision. Unfortunately, remand is again necessary regarding only service connection for vertigo to ensure substantial compliance with the Board's June 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Also as part of the June 2021 decision, the Board granted service connection for major depressive disorder and an unspecified anxiety disorder, as secondary to service-connected bilateral hearing loss and tinnitus. Accordingly, the award of service connection for this claim constituted a full grant of the service connection benefit sought; thus, this issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (1997). Regarding TDIU, the Board finds a claim for entitlement to TDIU is inferred from the Veteran's increased rating claim for bilateral hearing loss as there is evidence of unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As will be discussed in more detail below, the record reasonably raises the issue of unemployability during the pendency of the Veteran's 2011 increased rating claim. As such, this issue has been recharacterized above and will be addressed in more detail below. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an increased rating for bilateral hearing loss currently rated as 10 percent disabling prior to August 10, 2016, 20 percent from August 10, 2016, and 40 percent from August 19, 2021, is denied. This claim stems from an increased rating claim received on May 23, 2011. Thus, the Board will consider the severity of his bilateral hearing loss from the date of claim, or up to one year prior to VA's receipt of the Veteran's increased rating claim, to the extent an increase in severity is factually ascertainable. See 38 C.F.R. § 3.400(o)(2). During the period on appeal, the Veteran's bilateral hearing loss is currently rated as 10 percent disabling prior to August 10, 2015, 20 percent disabling from August 10, 2015, and 40 percent disabling from August 19, 2021, under DC 6100. For reasons outlined below, the Board finds an increased rating at any time during the period on appeal is not warranted. 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Turning to the relevant evidence of record, during the period on appeal, treatment records reflect the Veteran experiencing difficulty hearing. See June 2017 treatment records. Specifically, treatment records note the Veteran has complained of being unable to hear "well" on the telephone. See October 2016 treatment records. The Veteran reported that he loves people but cannot talk to people because of his hearing difficulties. See October 2017 treatment records. He conveyed about a 60 percent accuracy with lip reading. Later, he was noted to experience difficulty hearing, but he has been adapting well by reading lips. See February 2018 treatment records. Treatment records reflect the Veteran's bilateral hearing loss has been impairing his quality of life including by making it difficult to communicate with others or coach his grandchildren. See July 2017 treatment records. The Veteran explained that shopping, communicating, and being self-sufficient have been adversely affected by his hearing loss. See June 2021 Statement in Support. During the period on appeal, the Veteran has been afforded three VA examinations, the first of which occurred in August 2011. See August 2011 VA examination. The examiner opined that the Veteran's bilateral hearing loss impacts his ordinary conditions of daily life, including the ability to work, as the Veteran described himself as a "hermit" and tries to avoid social interactions as much as possible due to his hearing difficulty. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). On the authorized audiological evaluation in August 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 50 70 90 LEFT 25 35 60 75 80 Puretone threshold averages were 60 percent in the right ear and 62 percent in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The test results were noted to be valid. Another VA examination occurred in August 2016 wherein the examiner opined that the Veteran's bilateral hearing loss impacts his ordinary conditions of daily life, including the ability to work, based on the Veteran's reports of an inability to conduct business and personal matters over the phone, an inability to hear in groups of people, and an inability to work. See August 2016 VA examination; see also 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 50 80 80 LEFT 20 40 55 75 75 Puretone threshold averages were 60 percent in the right ear and 61.25 percent in the left ear. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 68 percent in the left ear. The test results were noted to be valid. Most recently the Veteran was afforded a VA examination in August 2021 during which the examiner opined that the Veteran's bilateral hearing loss impacts his ordinary conditions of daily life, including the ability to work, based on an overall difficulty hearing especially in certain situations such as bingo, conversations, talking to grandchild, people wearing masks, and using a drive-thru. See August 2021 VA examination. The Veteran also stated that when he was working, his hearing difficulty would often cause him to get addresses confused in his business or appointment times, which impacted his clients and business. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 50 65 90 90 LEFT 35 50 60 75 80 Puretone threshold averages were 74 percent in the right ear and 66 percent in the left ear. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 58 percent in the left ear. The test results were noted to be valid. For the period of May 23, 2011, to August 9, 2016, applying the August 2011 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 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. While the Board will not disturb the 10 percent disability rating currently in place for this timeframe it is clear the evidence does not support a rating greater than 10 percent. For the period of August 10, 2016, to August 18, 2021, applying the August 2016 results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, the Veteran has been appropriately rated as 20 percent disabled for bilateral hearing loss from August 10, 2016, to August 18, 2021, and a rating in excess of 20 percent is not warranted. From August 19, 2021, applying the August 2021 results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, the Veteran has been appropriately rated as 40 percent disabled for bilateral hearing loss from August 19, 2021, and a rating in excess of 40 percent is not warranted. At all times on appeal, the Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of symptoms such as difficulty hearing and the impact it has on his activities of daily living and occupation. Upon review, the Board finds all VA examinations outlined above are sufficient for rating purposes. The Veteran contends his symptoms present a greater degree of impairment than the disability rating assigned. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. 345. In this case, the mechanical application of the examinations show the Veteran's current staged ratings are appropriate and no increased ratings at any time are appropriate. It is further worth noting that the rating criteria already contemplates speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The Veteran's description of functional impact, such as not being able to hear well on the telephone or an inability to talk with people effectively, is already contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). That is, the Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. Accordingly, the preponderance of the most probative evidence is against an increased rating for any of the staged ratings at any of the times on appeal for his bilateral hearing loss. In denying the Veteran's hearing loss increased rating claim, the Board finds the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Service connection for vertigo is remanded. The Veteran contends his vertigo was caused by or incurred during service, or in the alternative, is secondary to service-connected bilateral hearing loss and / or tinnitus. The Board finds the evidence of record is insufficient to resolve the Veteran's claim and remand is necessary to ensure substantial compliance with the Board's June 2021 remand directives. The Veteran was afforded a VA examination in August 2021 during which the examiner opined the Veteran's vertigo is less likely than not caused by or incurred during service, including the 1964 report of dizziness based in-part on the reasoning that there was no documentation of chronic diagnosed dizziness or chronicity of care. Further, the examiner cited 2011 as the first report of vertigo following service. The Board notes, however, the Veteran himself stated that he experienced dizziness during service, and it remained following separation, which the examiner failed to reconcile. Additionally, treatment records note complaints of vertigo as early as 2009. Thus, remand is necessary for consideration of the Veteran's lay statements of symptoms as well as the Veteran's treatment records. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Additionally, the examiner opined that the Veteran's vertigo is less likely than not aggravated by service-connected bilateral hearing loss and / or tinnitus. The examiner, however, provided a rationale in support thereof only pertaining to causation rather than aggravation. Accordingly, remanded is necessary for an addendum opinion addressing aggravation specifically. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 2. Entitlement to TDIU is remanded. The Veteran has contended he is unable to maintain employment due, in-part, to his service-connected bilateral hearing loss. The Board finds remand is necessary for development of this claim. Here, the Board finds the Veteran raised the issue of entitlement to TDIU when he stated that he lost his career as an expert witness due to his service-connected hearing loss and specifically requested individual unemployment due, in-part, to service connected bilateral hearing loss. Thus, the Board infers a TDIU claim from the record; and as such, takes jurisdiction over the issue. Rice, 22 Vet. App. at 453-55. Based upon review of the record, however, the Veteran's employment status during the period on appeal is not clear, and development of this claim needs to be completed. Indeed, treatment records reference differing employment status and occupations. While the Veteran completed a VA Form 21-8940, it was submitted in 2009 and only lists self-employment since 1985. To date, the RO has not provided the Veteran notice of the evidence required to substantiate a TDIU claim and has not solicited a recent employment and payment history to determine whether he was eligible for TDIU. Accordingly, remand is necessary for development of this claim. The matters are REMANDED for the following action: 1. Send the Veteran a notice letter, pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), which advises him of the information needed to substantiate a claim for TDIU. In addition, ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. 2. Return the entire claims file and this remand to the August 2021 VA examiner, if available, or to another examiner for review. The examiner shall render an opinion, including rationale, addressing the following: - Whether it is at least as likely as not the Veteran's vertigo was caused by or incurred during service, to include an October 1964 report of dizziness; In so opining, the examiner is directed to address and consider the Veteran's lay statements of symptom onset during service that continued following separation as well as the Veteran's treatment records noting complaints of vertigo as early as 2009. - Whether it is at least as likely as not the Veteran's vertigo was aggravated by service-connected bilateral hearing loss and / or tinnitus. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any other development deemed necessary, readjudicate the claims, including the TDIU claim remanded herein. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.