Citation Nr: 21075874 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-14 563A DATE: December 21, 2021 ORDER Entitlement to increased disability ratings for bilateral hearing loss, rated as 10 percent disabling prior to July 24, 2018; as 20 percent disabling from July 24, 2018, to September 14, 2018; and as 10 percent disabling since September 15, 2018, is denied. FINDINGS OF FACT 1. For the period prior to July 24, 2018, the Veteran's bilateral hearing loss was manifested by no worse than Level II acuity in the right ear and Level VII acuity in the left ear. 2. For the period from July 24, 2018, to September 14, 2018, the Veteran's bilateral hearing loss was manifested by no worse than Level III acuity in the right ear and Level VII acuity in the left ear. 3. For the period since September 15, 2018, the Veteran's bilateral hearing loss was manifested by no worse than Level II acuity in the right ear and Level XI acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met for the period prior to July 24, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met for the period from July 24, 2018, to September 14, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met for the period since September 15, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to February 1967, and from May 1968 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran is appealing the propriety of initial ratings for bilateral hearing loss. The Veteran's claim was before the Board in February 2020; however, it was remanded so that evidence postdating the February 2014 Statement of the Case could be considered by the Agency of Original Jurisdiction (AOJ). Subsequent to the Board remand, a staged increase to 20 percent for bilateral hearing loss, from July 24, 2018, until to September 14, 2018, was awarded in an August 2020 Rating Decision. Aside from this staged increase, the Veteran's bilateral hearing loss is otherwise rated as 10 percent disabling effective April 20, 2011, until July 23, 2018, and then effective September 15, 2018. Because higher ratings are available throughout the appeal period and the Veteran is presumed to seek the maximum available benefits, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, the Veteran has not raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381(Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The issue adjudicated herein was previously before the Board in February 2021, at which time the it was remanded in order to afford the Veteran and his representative an opportunity to identify any outstanding private or VA treatment records relevant to the bilateral hearing loss claim on appeal, including but not limited to any private treatment records from the Veteran's ear nose and throat doctor, and all audiograms undergone during the appellate period, including but not limited to an audiogram dated September 18, 2019. Correspondences requesting that the Veteran identify and authorize VA to obtain additional relevant treatment records were sent in March 2021 and April 2021; however, no responses were received. Thus, with respect to the claim adjudicated herein, the Board finds that there has been substantial compliance with its February 2021 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). As discussed above, the Veteran seeks entitlement to increased disability ratings for his service-connected bilateral hearing loss. As this disability has been evaluated as 10 percent disabling prior to July 24, 2018; as 20 percent disabling from July 24, 2018, to September 15, 2018; and as 10 percent disabling since September 15, 2018, the Board must assess the propriety of each staged rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.§1155; 38 C.F.R. Part 4. In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I for essential normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of the speech discrimination and puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.8, Diagnostic Code 6100. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table VIIA may be used for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 (a) and (b). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Here, the Veteran was afforded a VA audiological examination in January 2013, at which time he was diagnosed as having bilateral sensorineural hearing loss. Audiological evaluation revealed that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 60 75 75 LEFT 25 55 70 100 105 The puretone average for the right ear was 58, while the puretone average for the left ear was 82. Speech recognition scores, using the Maryland CNC Word List, were 92 percent in the right ear and 88 percent in the left ear. Subjectively, the Veteran reported that he could not understand people or follow conversations at social functions, that he could not open a window in his capacity as a mail truck driver because it created too much noise in the vehicle, and that he could not trust his sense of hearing. When applying the puretone averages and speech recognition scores to Table VI, the audiometric test results show that the Veteran had hearing acuity of Level II in the right ear and Level IV in the left ear. The Board then applies those levels to Table VII, which results in a noncompensable evaluation for the Veteran's bilateral hearing loss. Evaluation of the Veteran's hearing disability as an exceptional pattern of left ear hearing loss under Table VIA results in hearing acuity of Level VII in the left ear, which results in a 10 percent evaluation for the Veteran's bilateral hearing loss under Table VII. 38 C.F.R. § 4.86(a). Based on these results, an evaluation of in excess of 10 percent for the Veteran's bilateral hearing loss is not warranted at any time prior to July 24, 2018, because the Veteran's bilateral hearing loss was manifested by no worse than Level II acuity in the right ear and Level VII acuity in the left ear during this period. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. 38 C.F.R. § 4.85. The Veteran was afforded another VA audiological examination in July 2018, at which time he was again diagnosed as having bilateral sensorineural hearing loss. Audiological evaluation revealed that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 55 75 75 LEFT 30 55 65 105 105+ The puretone average for the right ear was 58, while the puretone average for the left ear was 83. Speech recognition scores, using the Maryland CNC Word List, were 90 percent in the right ear and 82 percent in the left ear. Subjectively, the Veteran reported that he was experiencing difficulty with conversations and hearing at the grocery store. When applying the puretone averages and speech recognition scores to Table VI, the audiometric test results show that the Veteran had hearing acuity of Level III in the right ear and Level V in the left ear. The Board then applies those levels to Table VII, which results in a 10 percent evaluation for the Veteran's bilateral hearing loss. Evaluation of the Veteran's hearing disability as an exceptional pattern of left ear hearing loss under Table VIA results in hearing acuity of Level VII in the left ear, which results in a 20 percent evaluation for the Veteran's bilateral hearing loss under Table VII. 38 C.F.R. § 4.86(a). Based on these results, an evaluation of in excess of 20 percent for the Veteran's bilateral hearing loss is not warranted at any time from July 24, 2018, to September 15, 2018, because the Veteran's bilateral hearing loss was manifested by no worse than Level III acuity in the right ear and Level VII acuity in the left ear during this period. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. 38 C.F.R. § 4.85. The Veteran was afforded another VA audiological examination in September 2018, at which time he was again diagnosed as having bilateral sensorineural hearing loss. Audiological evaluation revealed that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 55 70 75 LEFT 25 55 60 100 105+ The puretone average for the right ear was 56, while the puretone average for the left ear was 80. Speech recognition scores, using the Maryland CNC Word List, were 92 percent in the right ear and zero percent in the left ear. Subjectively, the Veteran reported that conversation with family and friends was difficult, especially in noisy environments. When applying the puretone averages and speech recognition scores to Table VI, the audiometric test results show that the Veteran had hearing acuity of Level I in the right ear and Level XI in the left ear. The Board then applies those levels to Table VII, which results in a 10 percent evaluation for the Veteran's bilateral hearing loss. Evaluation of the Veteran's hearing disability as an exceptional pattern of left ear hearing loss under Table VIA results in hearing acuity of Level VII in the left ear, which results in a 10 percent evaluation for the Veteran's bilateral hearing loss under Table VII. 38 C.F.R. § 4.86(a). The Veteran was most recently afforded another VA audiological examination in August 2021, at which time he was diagnosed as having sensorineural hearing loss in the right ear and mixed hearing loss in the left ear. Audiological evaluation revealed that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 60 75 75 LEFT 30 50 65 105+ 105+ The puretone average for the right ear was 59, while the puretone average for the left ear was 81. Speech recognition scores, using the Maryland CNC Word List, were 98 percent in the right ear and 66 percent in the left ear. Subjectively, the Veteran reported a gradual decline in his hearing, and that his wife had noticed this decline as well. When applying the puretone averages and speech recognition scores to Table VI, the audiometric test results show that the Veteran's had hearing acuity of Level II in the right ear and Level VII in the left ear. The Board then applies those levels to Table VII, which results in a 10 percent evaluation for the Veteran's bilateral hearing loss. The Veteran did not exhibit an exceptional pattern of hearing loss in either ear during the August 2021 examination. 38 C.F.R. § 4.86(a). Based on these results, an evaluation of in excess of 10 percent for the Veteran's bilateral hearing loss is not warranted at any time since September 15, 2018, because the Veteran's bilateral hearing loss was manifested by no worse than Level II acuity in the right ear and Level XI acuity in the left ear during this period. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. 38 C.F.R. § 4.85. In his November 2021 Post-Remand Brief, the Veteran's representative asserted that the Veteran is entitled to higher ratings because he experiences marked interference with his daily activities, and he believes his hearing loss prevents optimal performance during employment (especially in the presence of background noise resulting in total communication failure or problems). However, disability 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). The ratings contemplate the impact of the right and left ear hearing acuity combined on functionality. The Board acknowledges the Veteran's assertions that his hearing loss is severe and affects his daily life. He is competent to attest to factual matters of which he has first-hand knowledge, such as perceived hearing difficulty. Layno v. Brown, 6 Vet. App. 465 (1994). However, a determination of whether his perceived hearing difficulty is an actual loss of hearing acuity due to loss of sensorineural functionality requires medical testing and is not subject to lay evidence. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As noted above, in hearing impairment cases, the Board is required to follow 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). Accordingly, higher disability ratings for bilateral hearing loss are not warranted based on any audiological findings of record. Therefore, the Veteran's claim is denied. The Board notes that the procedural and substantive provisions of 38 C.F.R. §§ 3.105(e) and 3.144(c) do not apply as there was no reduction of the Veteran's rating for bilateral hearing loss in the August 2020 rating decision as a 10 percent disability evaluation was previously in effect. See Singleton v. Shinseki, 23 Vet. App. 376 (2010); O'Connell v. Nicholson, 21 Vet. App. 89, 92 n.3 (2007) (holding that in the case of a staged rating involving the simultaneous assignment in a rating decision of higher and lower evaluations for a disability, there is no reduction of a rating unless the rating action assigns a disability evaluation that is below that level previously in existence.) As summarized above, the lay and medical evidence demonstrates that the Veteran's symptoms, severity, and functional loss due to his hearing difficulties are difficulty hearing or understanding sounds and voices and communicating in certain situations. These manifestations are contemplated by the schedular rating criteria and assigned ratings for his bilateral hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (hearing loss which results in an inability to hear or understand speech or sounds in various contexts are the effects contemplated by the schedular rating criteria); 38 C.F.R. § 4.85, Diagnostic Code 6100. Finally, the Board notes that a claim for a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is part and parcel of an increased rating claim where a claimant asserts or the record reflects that his service-connected disabilities prevent him from working. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Here, the record does not reflect that the Veteran is unable to find or maintain gainful employment due to service-connected disabilities. Therefore, entitlement to a TDIU has not been raised. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.