Citation Nr: 21074562 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-00 747 DATE: December 15, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to April 30, 2021, and a rating in excess of 50 percent thereafter, is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for lumbar spine disability prior to May 4, 2021, and a rating in excess of 40 percent thereafter, is remanded. FINDINGS OF FACT 1. For the period prior to April 30, 2021, the Veteran's right ear hearing loss was manifested by no worse than Level III hearing impairment and left ear hearing loss was manifested by no worse than Level II hearing impairment. 2. For the period from April 30, 2021, the Veteran's right ear hearing loss was manifested by no worse than Level IX hearing impairment and left ear hearing loss was manifested by no worse than Level VIII hearing impairment. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss prior to April 30, 2021, and a rating in excess of 50 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1956 to September 1959 and in the U.S. Army from September 1990 to January 1992. The RO issued a rating decision in May 2021 that increased the ratings of the Veteran's lumbar spine condition to 40 percent, effective May 4, 2021, and bilateral hearing loss to 50 percent, effective April 30, 2021. As this action did not constitute full grants of the benefits sought, the claims for increased ratings remain before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Entitlement to an initial compensable rating for bilateral hearing loss prior to April 30, 2021, and a rating in excess of 50 percent thereafter, is denied. The Veteran is assigned a noncompensable rating for bilateral hearing loss prior to April 30, 2021, and a 50 percent rating thereafter. The Veteran contends entitlement to increased ratings for bilateral hearing loss. Hearing impairment is evaluated pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 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). 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, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. §§ 4.85, 4.86. Special rules govern hearing loss that falls within exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. This includes hearing loss that is exhibited by pure tone thresholds of at least 55 decibels measured at each of the frequencies 1000, 2000, 3000, and 4000 Hertz, or when hearing loss is exhibited by pure tone thresholds of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. The evidence does not support, nor has the Veteran contended, exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. In consideration of the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to a compensable rating for his bilateral hearing loss for the period prior to April 30, 2021, or a rating in excess of 50 percent thereafter. The Veteran appeared for a VA examination in September 2016. Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Avg. CNC RIGHT 40 65 80 90 69 88% LEFT 35 70 80 90 69 92% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. The Veteran submitted a private audiology report from December 2016. However, as the speech recognition scores were not Maryland CNC, the audiometric evaluation is not adequate for rating purposes under § 4.85(a). The Veteran underwent another VA examination in April 2021. Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Avg. CNC RIGHT 50 75 100 105+ 83 50% LEFT 50 80 105+ 105+ 85 52% Applying the results to Table VI, the findings yield a numeric designation of Level IX in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level IX for the right ear and Level VIII for the left ear to Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing conversations and hearing high pitched noise. The Veteran is competent to report difficulty with his hearing; however, as noted above, 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. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's attorney contended the September 2016 VA examiner made no note of whether or not the seal was maintained during the audiological evaluation, which is necessary to assure objective results from calibrated equipment. See July 2021 attorney brief. Both the September 2016 VA examination form and May 2021 VA examination form had a checkbox for "unable to obtain/maintain seal." This box was not checked for either ear for either VA examination. The representative provided no further evidence to support finding the examinations were inadequate. The preponderance of the evidence demonstrates the Veteran's bilateral hearing loss does not meet the criteria for a compensable rating prior to April 30, 2021, or a rating in excess of 50 percent thereafter. REASONS FOR REMAND Entitlement to an initial rating in excess of 20 percent for lumbar spine disability prior to May 4, 2021, and a rating in excess of 40 percent thereafter, is remanded. The Veteran's attorney contends the Veteran's range of motion during flare-ups amounts to functional ankylosis. See July 2021 attorney brief. The United States Court of Appeals for of Veterans Claims (Court) recently held the requirement of ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) can be met with evidence of the functional equivalent of ankylosis during a flare. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The May 2021 VA back examination found no evidence of ankylosis. However, the examiner opined pain during flare-ups would significantly limit the Veteran's functional ability. The examiner estimated in terms of range of motion forward flexion to 0 degrees, extension to 0 degrees, right lateral flexion to 0 degrees, left lateral flexion to 0 degrees, right lateral rotation to 0 degrees, and left lateral rotation to 0 degrees. The Board requests a medical opinion as to whether the Veteran's functional loss during a flare-ups resulted in the functional equivalent of ankylosis, and if so, the nature and onset of the functional ankylosis. The matters are REMANDED for the following action: Obtain an addendum opinion from the clinician who performed the May 2021 VA back examination. If the May 2021 clinician is not available, request the opinion from an appropriate clinician. An in-person examination is not required unless deemed necessary by the clinician. (a.) Whether the Veteran's functional loss during a flare-up is at least as likely as not the functional equivalent of ankylosis? (b.) If functional ankylosis is found, characterize whether it is favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. (c.) If functional ankylosis is found, identify the earliest evidence of functional ankylosis. If it is not possible to provide an opinion without speculation, the clinician should state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). TESS WINKLER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.