Citation Nr: 21074860 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-34 065 DATE: December 16, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected conditions (TDIU) is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran's bilateral hearing loss was manifested by a hearing acuity of no worse than Level V in the right ear and no worse than Level IV in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for bilateral hearing loss 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 FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to December 1966 with additional service in Reserves. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). On appeal, the Veteran requested a hearing before the Board which occurred in August 2021. A transcript has been associated with the claims file and reviewed. Of relevance, following the Veteran's substantive appeal to the Board, additional evidence and records were associated with the claims file. While the additional evidence has not been reviewed by the RO, the Board notes the Veteran waived RO consideration in the first instance. See July 2020 correspondence. Accordingly, the Board will proceed to adjudication. 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 such, this issue has been recharacterized above and will be addressed in more detail below. Also, of note, the Veteran currently has appeals pending under the Appeals Modernization Act (AMA) which will be addressed in separate Board decisions as they cannot be merged with this pending legacy appeal. 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 initial rating in excess of 10 percent for bilateral hearing loss is denied. The Veteran contends his bilateral hearing loss should be assigned a higher disability rating. The Veteran is currently assigned a 10 percent disability rating under DC 6100 for bilateral hearing loss from March 30, 2012. The Board finds an initial rating in excess of 10 percent 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). At the outset, the Board notes, VA received the Veteran's claim for benefits on March 30, 2012. The Veteran timely appealed the initial June 2018 rating decision stemming from said claim. Thus, the Board will consider the period on appeal beginning March 30, 2012, the date of receipt of the Veteran's claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Turning to the relevant evidence of record, the Veteran was afforded multiple VA examinations for hearing loss throughout the period on appeal, the first of which occurred in January 2013. See January 2013 VA examination. During the examination, the Veteran reported experiencing difficulty hearing, even with hearing aids, that impacted his teaching. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 26, 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 35 60 60 48 90 LEFT 40 40 65 60 51 88 Test results were found to be valid, and the use of speech discrimination scores was noted to be appropriate. Another VA examination occurred in January 2019 during which the Veteran reported difficulty understanding speech in the presence of background noise. See January 2019 VA examination; 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 31, 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 50 55 60 53 74 LEFT 45 55 60 55 54 80 Test results were found to be valid, and the use of speech discrimination scores was noted to be appropriate. Most recently, the Veteran was afforded a VA examination in September 2021 during which he endorsed leaving his job because he could not understand the children with whom he interacted daily and had difficulty understanding people at work. See September 2021 VA examination; 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: September 27, 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 55 55 46.25 80 LEFT 30 50 60 55 48.75 88 Test results were found to be valid, and the use of speech discrimination scores was noted to be appropriate. The Board notes the record also contains an October 2018 private audiology report. See October 2018 treatment records. The report, however, lacks information regarding which word list was utilized. As such, the audiogram may not be utilized to determine the Veteran's disability rating for hearing loss as it is not adequate under 38 C.F.R. § 4.85(a). The Board has considered whether further clarification is necessary from the 2018 private audiologist but finds the various VA examinations of record present a disability picture throughout the period on appeal sufficient for rating purposes. See Savage v. Shinseki, 24 Vet. App. 259 (2011). Applying the results of the January 2013 VA examination 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 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown during this examination. Applying the results of the January 2019 VA examination to Table VI, the findings yield a numeric designation of Level V in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown during this examination. Applying the results of the September 2021 VA examination 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 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown during this examination. Based on the evidence above, throughout the entire period on appeal, an initial rating in excess of 10 percent for bilateral hearing loss is not warranted. The Board notes the RO previously assigned a noncompensable disability rating for bilateral hearing loss that was later increased to 10 percent throughout the entire period on appeal based on the January 2019 VA examination results and in consideration of the Veteran's consistent reports of hearing loss that was worse than reflected in the January 2013 VA examination. Of note, the Veteran's most recent VA examination again equates to a noncompensable rating. The Board also finds an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown throughout the period on appeal. Thus, the Board finds the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's bilateral hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's lay statements within treatment records and testimony regarding his hearing loss symptoms including having difficulty understanding children talking, difficulty hearing in a crowded room with multiple noises, and needing to see faces and lips to understand. 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. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). 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 the claim of entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Veteran has contended that he is unable to obtain or maintain substantially gainful employment due, in-part, to service-connected hearing loss. Treatment records and testimony reflect the Veteran has conveyed that he stopped working due to his hearing loss. Thus, the Board finds the issue of entitlement to TDIU has been reasonably raised by the record. See Rice, 22 Vet. App. at 453-55. Additionally, following the hearing, the Veteran submitted an application for TDIU citing hearing loss and depression as disabilities that have rendered him unable to obtain or maintain employment. At the time of the August 2021 hearing, the Veteran was only service-connected for tinnitus and bilateral hearing loss. As mentioned above, simultaneous to this pending appeal, the Veteran also had pending appeals under the AMA, including a service connection claim for major depression. The Board has since granted service connection for major depression under the AMA appeal stream, a rating for which has yet to be assigned. The Board finds remand of this TDIU claim is necessary for adjudication after a rating is assigned for newly service connected major depression based on the Veteran's assertions that his unemployability is related to both hearing loss and major depression. Thus, this claim is remanded for adjudication following the assignment of a rating for the newly service connected major depression. The matters are REMANDED for the following action: Following a rating determination for service-connected major depression, adjudicate the Veteran's TDIU claim including completing any additional development deemed necessary to adjudicate. 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.