Citation Nr: 21074473 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-15 841 DATE: December 15, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent from October 19, 2021, for service-connected bilateral hearing loss is denied. REMANDED Entitlement to an initial compensable disability evaluation for service-connected bilateral hearing loss prior to October 19, 2021, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDING OF FACT Effective October 19, 2021, at worst, applying Table VII, the Veteran had Level VIII hearing acuity in the left ear and Level II hearing acuity in the right ear. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 10 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to September 1967. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in March 2021; a transcript is of record. The Board previously remanded this matter in June 2021. 1. Bilateral Hearing Loss Effective October 19, 2021 Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology to the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required 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. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100. In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating scheduled to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC world list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the auditory test and from the results of the speech discrimination test. The vertical columns in Table VI represent nine categories of percentage of discrimination based on the controlled speech discrimination test. Id. The horizontal rows in Table VI represent nine categories of decibel loss based on the puretone audiometry test. Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the column corresponding to the percentage of discrimination and the row corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation of the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation of the ear having the poorer hearing acuity (as determined by Table VI). 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 id. There are alternative criteria for certain exception patterns of hearing loss. Specifically, if the puretone thresholds for each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based either on Table VI or Table VIA in 38 C.F.R. § 4.85, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or VIA under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). During the Veteran's October 2021 examination, he exhibited puretone thresholds, in decibels, as follows: Hertz 1000 2000 3000 4000 Right Ear 50 70 60 50 Left Ear 65 80 75 75 The examination report reflects a puretone threshold average of 73.75 decibels in the left ear and 57.5 decibels in the right ear. Speech recognition scores using the Maryland CNC Test measured 52 percent in the left ear and 94 percent in the right ear. The Veteran's left ear puretone threshold measurements meet the criteria for an exceptional hearing loss pattern pursuant to 38 C.F.R. § 4.86(a). Applying Table VIA, the Veteran's left ear hearing loss reaches Level VI. Applying Table VI, the Veteran's left ear hearing acuity reaches Level VIII. Therefore, as the numeral designation from Table VI indicates a higher evaluation for the Veteran's left ear hearing loss, the Board will apply the Table VI measurement for the Veteran's left ear. Based on Table VI, the Veteran has Level VIII hearing acuity in the left ear and Level II hearing acuity in the right ear. Applying Table VII, Level VIII hearing acuity in the left ear and Level II hearing acuity in the right ear, the Veteran's hearing loss equates to 10 percent. Effective October 19, 2021, the Veteran's hearing loss has warranted a 10 percent disability evaluation. The Veteran has not submitted competent objective medical evidence contradicting the October 2021 examiner's findings. As such, the preponderance of the evidence is against granting a higher evaluation for the Veteran's service-connected bilateral hearing loss. In reaching this determination, the Board has considered the Veteran's and his wife's competent lay statements indicating that he has problems with background noise such as the television and that he does not understand or hear questions which is typical of them living together in addition to his reliance on her to hear for him. See March 2021 Hearing Transcript. During the October 2021 examination, the examiner noted that the Veteran has difficulty hearing and/or understanding speech both in quiet and background noise and that the television and phone volumes (landline and cell) are also kept louder. However, the challenges associated with the Veteran's hearing loss, as noted in his and his wife's competent lay statements and his report to the October 2021 examiner, are contemplated by the rating criteria, which are designed to account for the average impairment resulting from service-connected disabilities, including the impact on daily and occupational functioning. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. The fact that his hearing loss has not met the criteria for a disability evaluation in excess of 10 percent weighs against a finding that he has additional impairment based on his subjective reports. Therefore, the Veteran's functional impairment does not establish entitlement to a higher rating absent audiometric and speech discrimination scores that satisfy or more nearly approximate the schedular criteria for a higher disability evaluation. See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349. Because the preponderance of the evidence weighs against a higher rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Bilateral Hearing Loss Initial Disability Evaluation After issuance of the June 2021 remand, the Veteran, through his representative, submitted two private audiometric examinations: one dated in July 2018, and one dated in January 2021. However, the Board finds that these examinations, as provided, do not render the Board capable of deciding whether the Veteran's service-connected bilateral hearing loss warrants a compensable evaluation prior to October 19, 2021. The July 2018 examination designates only the puretone speech thresholds for each ear. The examination does not reflect whether speech discrimination measurements were taken and, if so, the results. See July 2018 Audiological Evaluation conducted by L.K. (submitted in August 2021). VA regulation provides that an examination for hearing impairment must include a "controlled speech discrimination test" using the Maryland CNC Word List and a puretone audiometry test. See 38 C.F.R. § 4.85(a). Accordingly, the Board finds that remand is necessary to determine whether the July 2018 examiner measured speech discrimination and, if so, which test was used along said test's results. The January 2021 examination designates puretone speech thresholds for each ear in addition to speech discrimination results. However, the evaluation does not specify which speech discrimination test was used. See January 2021 Audiological Evaluation conducted by D.B. (submitted in August 2021). Therefore, the Board must remand this matter for clarification as to which speech discrimination test was used during the January 2021 private examination. 2. TDIU The various VA examinations of record indicate that the Veteran's service-connected bilateral hearing loss impacts his ability to work. See October 2015 VA Hearing Loss and Tinnitus C&P Examination; March 2017 VA Hearing Loss and Tinnitus C&P Examination; October 2021 VA Hearing Loss and Tinnitus C&P Examination. Further, the Veteran asserted that his bilateral hearing loss negatively affects his ability to work. See October 2015 VA Hearing Loss and Tinnitus C&P Examination; March 2017 VA Hearing Loss and Tinnitus C&P Examination. Accordingly, the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. §§ 3.340, 4.16. The issue of TDIU is part and parcel of the increased rating claims, and therefore is before the Board via the appeal of those issues. Rice, 22 Vet. App. at 453. Since the adjudication of the claims for increased disability evaluations for the Veteran's service-connected bilateral hearing loss could significantly impact adjudication of TDIU, the Board finds that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Consequently, because the Board is remanding entitlement to an initial compensable disability evaluation for bilateral hearing loss, the Board must also remand the issue of entitlement to a TDIU. The matters are REMANDED for the following action: 1. The RO should contact L.K., and D.B., the private examiners who performed the Veteran's July 2018 and January 2021 examinations and request clarification from the examiners regarding the Veteran's measured speech discrimination. Specifically, the RO should request L.K. to clarify as to whether any speech discrimination testing was performed in July 2018, and, if so, which test was used and what the result(s) was/were. The RO should request D.B. to clarify as to which speech discrimination test was conducted during the Veteran's January 2021 examination. 2. The RO should send the Veteran a formal application for TDIU (VA Form 21-8940) and request him to complete and return the form. 3. When the completed VA Form 21-8940 has been submitted by the Veteran, or after a reasonable time has been provided for him to complete and return the form, and after conducting any additional development that may be warranted as determined by the RO, adjudicate the issue of entitlement to a TDIU. 4. If any of the above-sought benefits remain denied, the RO should forward a Supplemental Statement of the Case (SSOC) to the Veteran and his representative. An appropriate period of time should be allowed for response before returning this appeal to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.