Citation Nr: 21071803 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-23 624 DATE: December 1, 2021 ORDER Entitlement to an increased initial disability rating of 100 percent for bilateral hearing loss prior to August 6, 2021 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. Providing the Veteran the benefit of the doubt, prior to August 6, 2021, his hearing loss manifested by Level XI hearing loss in both left and right ears. 2. The record does not reflect the Veteran was unable to obtain or retain substantially gainful employment due solely to his service-connected disabilities other than his bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 100 percent for bilateral hearing loss prior to August 6, 2021 are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100 (2020). 2. The issue of entitlement to TDIU is moot. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to August 1967. He appeals a January 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to an initial rating greater than 10 percent for bilateral hearing loss. During the appeal, the AOJ increased the Veteran's initial rating to 20 percent for bilateral hearing loss prior to August 6, 2021, and 100 percent thereafter. Also, before the Board of Veterans' Appeals (Board) is a claim for entitlement to TDIU. A Board hearing was held in July 2018. A transcript is of record. In May 2020, prior to recertification to the Board, the Veteran's representative filed proper notice to withdraw representation. 38 C.F.R. § 14.631(c). The Veteran did not appoint new representation and has been self-represented since the withdrawal. Most recently, in November 2020, the Board remanded the appeal to afford the Veteran an accurate audiology examination. The appeal is now back before the Board. Increased Rating for Hearing Loss Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. 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. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Veteran claims his service-connected bilateral hearing loss is more severe than his current 20 percent rating prior to August 6, 2021 under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran's 100 percent disability rating from August 6, 2021 for hearing loss is considered a full grant of benefits; therefore, the appeal period from August 6, 2021 is no longer on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based upon organic impairment of hearing acuity as measured in the frequencies of 1000, 2000, 3000, and 4000 Hertz and controlled speech discrimination tests. See 38 C.F.R. § 4.85, Tables VI, VIA, VII; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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 pure tone 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. When the pure tone threshold at each of the four frequencies 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. 38 C.F.R. § 4.86(a). Here, however, a rating under Table VI provides for the highest rating allowable under DC 6100; therefore, Table VIA need not be considered. The decibel loss and speech discrimination ranges designated for each level of hearing impairment were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability, as per the regulatory history of 38 C.F.R. § 4.85 and § 4.86. Functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Complaints related to actual functional impairment are therefore factored into the criteria as applied. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Board finds that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. The Veteran was afforded a VA audiological evaluation in December 2014. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 65 85 80 LEFT 30 30 70 80 80 The average of the pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz was 65 decibels in the right ear, and 65 decibels in the left ear. The VA examiner noted speech recognition scores from the Maryland CNC word list were not appropriate for the Veteran "because of language difficulties, cognitive problems, inconsistent word scores, etc." but did not elaborate on why his speech recognition scores were inadequate. See December 2014 VA examination report. The Veteran was afforded a second VA audiological evaluation in October 2019. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 60 80 90 85 LEFT 70 65 80 95 90 The average of the pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz was 79 decibels in the right ear, and 83 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 0 percent for both ears. At this examination, the audiologist noted the pure tone "test results are not valid for rating purposes" because the Veteran's results were "inconsistent with organic hearing loss." See October 2019 VA examination report. The examiner noted the Veteran "showed extremely poor reliability" as he "was instructed multiple times to respond," but his responses were "sporadic and not consistent the majority of the time." Id. The VA examiner noted "the Veteran was able to communicate via talk-over with the audiologist...with no issue, but could not replicate the task using recorded speech." Id. The Veteran was afforded a third and final VA audiological evaluation in August 2021. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 100 105 105 105+ 105+ LEFT 90 95 95 105 105 The average of the pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz was 105 decibels in the right ear, and 100 decibels in the left ear. Similar to the October 2019 VA examination, the speech recognition scores on the Maryland CNC word list were 0 percent for both ears. At this examination, the audiologist noted the pure tone test results and speech discrimination score were valid for rating purposes. Overall, the Board finds the Veteran's 0 percent speech recognition scores on the Maryland CNC word list in each ear are an accurate representation of his severe hearing loss. For example, at a May 2014 audiology consultation, the Veteran reported "difficulty understanding speech" and his speech discrimination scores were 16 percent for his right ear and 40 percent for his left ear. See May 2014 VA treatment records. The Veteran had the same word recognition results at a May 2015 audiology consultation. Numerous audiology assessments during the appeal period reflect the Veteran's severe hearing loss. See, e.g. May 2015 VA treatment records; September 2016 ENT physicians records. However, for an accurate evaluation of hearing impairment, any adequate evaluation must include the Maryland CNC speech discrimination test and puretone audiometry test. See 38 C.F.R. § 4.85(a). Thus, as the December 2014 VA examiner did not provide speech discrimination scores and the October 2019 VA examiner's finding of 0 percent for speech discrimination scores matches the August 2021 VA examiner's findings, the Board affords the Veteran the benefit of the doubt and finds his speech discrimination scores more closely approximate 0 percent for the entire appeal period. Applying 0 percent speech recognition scores with the purtone threshold results of each December 2014, October 2019, and August 2021 VA examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level XI for each ear during the entire appeal period. 38 C.F.R. § 4.85, Table VI. Applying these Roman numeric designations to Table VII, the result is a 100 percent, or total rating. As such, the Board finds the Veteran is entitled to an initial rating of 100 percent for his bilateral hearing loss prior to August 6, 2021. TDIU The issue of entitlement to TDIU has been raised in this case and must be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Pursuant to the Order above, the Veteran's bilateral hearing loss is now rated at 100 percent disabling during the entire appeal period. A 100 percent rating under the rating schedule indicates that a Veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Additionally, the Board finds no single service-connected disability alone renders the Veteran entitled to TDIU. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Separate from his bilateral hearing loss, the Veteran is currently service connected for tinnitus, rated at 10 percent. See August 2021 rating decision codesheet. Prior to December 1, 2020, he was also service connected for posttraumatic stress disorder (PTSD), rated at 30 percent disabling. Id. The record does not suggest, and the Veteran does not contend, that he is unable to work due to his PTSD or tinnitus symptoms. For example, in July 2018, the Veteran's prior representative submitted an argument that the "Veteran stopped working in August 2013 due to not being able to hear and see." At the July 2018 Board hearing, the Veteran noted he stopped working "due to not being able to hear," referencing "a lot of close calls" where he could have hurt his coworkers in the oil fields due to missing a verbal cue. See July 2018 Board Hr. Tr. at 14, 17-18. In November 2014, the Veteran "denied being terminated for cause, reprimanded, written up or suspended from a job;" he noted he was cordial with coworkers and mainly worked alone. See November 2014 VA examination report. Importantly, the Veteran "denied any problems performing work duties due to mental health symptoms" and at the November 2014 psychiatric examination he attributed his inability to work to his poor eyesight and hearing. Id. Overall, the record does not reflect the Veteran is unable to work due to his service-connected disabilities during the appeal period. As such, the issue of entitlement to TDIU for the Veteran's service-connected disabilities other than bilateral hearing loss is dismissed as moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.