Citation Nr: 21077248 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-30 888 DATE: December 29, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected hearing loss, is remanded. VETERAN'S CONTENTIONS The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. See March 2021 VA Form 10182. Specifically, the Veteran stated that he is unable to hear normal conversation. See April 2021 Board Hearing Trans. pg. 2. The Veteran also stated that his hearing loss disability causes him to feel embarrassed because he must ask people to repeat themselves. Id. at 3. FINDING OF FACT Throughout the period on appeal, the Veteran had no more than Level II hearing loss in his right ear and Level IV in his left ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 0 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86(a), Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to January 1976. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his June 2018 VA Form 9. In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2021, the Board remanded this issue for further development, to include a VA examination. See June 2021 Board Remand. Increased Rating for the Veteran's Hearing Loss Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz [Hz], shown on a puretone audiometry test. 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone. 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b). During the period on appeal, the Veteran underwent audiological examination on two occasions: in December 2016 and in June 2021. The audiometric testing results from the December 2016 audiological examination revealed puretone thresholds of 55, 35, 50, and 75 decibels in the right ear and 30, 35, 40, and 75 decibels in the left ear at each of the specified frequencies. The puretone threshold average was 53.75 decibels in the right ear and 45 decibels in the left ear. The speech discrimination scores listed on the examination were 100 percent in the right ear and 98 percent in the left ear. Applying the foregoing results to Table VI yields a finding of Level I hearing loss in both ears. When hearing loss is at Level I hearing loss both ears, a 0 percent rating is assigned under Table VII. The Veteran next underwent audiological evaluation in June 2021. The audiometric testing results from the June 2021 audiological examination revealed puretone thresholds of 50, 50, 50, and 90 decibels in the right ear and 30, 40, 35, and 100 decibels in the left ear at each of the specified frequencies. The puretone threshold average was 60 decibels in the right ear and 51.25 decibels in the left ear. The speech discrimination scores listed on the examination were 96 percent for both ears. Applying the foregoing results to Table VI yields a finding of Level II hearing loss in the right ear, and Level I hearing loss in the left ear. When hearing loss is at Level II hearing loss in the right ear and Level I hearing loss in the left ear, a 0 percent rating is assigned under Table VII. The Board is sympathetic to Veteran's contention that it is difficult to hear people and he often misinterprets what they are saying, if he cannot read their lips. See December 2016 VA Medical Opinion. Although the Board is sympathetic to the functional effects of his hearing loss disability, the Board finds that the schedular criteria contemplate the functional effects, such as such as difficulty hearing people talk. See Osweiler v. McDonough, 20-4072 (Nov. 30, 2021). Therefore, the Board finds that it must follow the requirements listed in 38 C.F.R. § 4.85 for rating purposes. In the absence of any additional medical evidence showing a more severe hearing disability, a disability rating in excess of 0 percent for bilateral hearing loss is not warranted, and the claim is denied. REASONS FOR REMAND Service connection for the Veteran's Acquired Psychiatric Disorder. After reviewing the evidence of record, the Board finds that there has not been substantial compliance with the Board's prior remand directives. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, pursuant to the June 2021 Board remand, the examiner was instructed to opine whether the Veteran's hearing loss disability caused and/or aggravated a potential psychiatric disorder. Although August 2021 VA examiner opined that the Veteran's insomnia disorder was not caused by his hearing loss disability, the examiner failed to provide an opinion regarding whether his hearing loss aggravated his insomnia disorder. Therefore, the Board finds that remand is necessary. Additionally, the Board finds that the Veteran's lay statements regarding the onset of his insomnia disability raise an additional theory of entitlement. Specifically, at the June 2021 VA examination, the Veteran stated that his insomnia disorder began around the time of his discharge from active duty. See June 2021 VA Medical Opinion. However, the June 2021 VA examiner did not provide an opinion regarding whether his insomnia disorder is related to service, on a direct basis. Therefore, the Board finds that an addendum opinion is necessary. Based on the foregoing deficiencies, the Board finds that an addendum opinion is warranted. See Stegall, 11 Vet. App. at 268. The VA medical opinion should address whether the Veteran's insomnia disability had its clinical onset during service. The VA medical opinion should also address whether the Veteran's hearing loss disability aggravated his insomnia disability under the standard articulated in Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his acquired psychiatric disorder. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Obtain a new opinion from a new clinician addressing the etiology of the Veteran's insomnia. The clinician should be given a copy of this Board remand. If the examiner request, an examination may be ordered to address the below: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's insomnia disability had its onset in, was caused by, or is otherwise related to service. For the purpose of providing the opinion requested, please accept as valid the Veteran's statements that his insomnia began around discharge and state whether a nexus between the Veteran's insomnia disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). (b.) Please state whether it is at least as likely as not that the Veteran's insomnia disability was aggravated by his service-connected hearing loss disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward that aggravation need not be permanent in nature. (c.) If you find that the Veteran's insomnia disability has been aggravated by the Veteran's hearing loss disability, please estimate the baseline severity of the Veteran's insomnia disability before it was aggravated by his service-connected hearing loss disability. In offering any opinion, the examiner should consider medical and lay evidence dated both since the filing of the claim. The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.