Citation Nr: 21077582 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 20-09 303 DATE: December 30, 2021 ORDER For the entire period on appeal from February 15, 2018, an increased disability rating of 40 percent, but no higher, for the service-connected bilateral sensorineural hearing loss is granted. REMANDED A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal from February 15, 2018, the service-connected bilateral hearing loss is manifested by no worse than Level III in the right ear and Level V in the left ear pursuant to Table VI with speech recognition of 88 percent in the right ear and 80 percent in the left ear. 2. For the entire rating period on appeal from February 15, 2018, the service-connected bilateral hearing loss more nearly approximated an exceptional pattern of hearing impairment, such that the bilateral hearing loss could be evaluated via Table VIA, which results in a Level VII in the right ear and a Level VIII in the left ear. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the rating period from February 15, 2018, the criteria for an increased disability rating of 40 percent, but no higher, for the service-connected bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from June 1963 to March 1970. The instant case is on appeal from an April 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that increased the disability rating for the service-connected bilateral hearing loss from 0 percent to 20 percent. The Veteran timely appealed, seeking a higher rating. The Veteran participated in an April 2021 Board of Veterans' Appeals (Board) hearing. The hearing transcript has been associated with the claims file. Rating Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of ratings with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85; Diagnostic Code 6100. Hearing tests will be conducted without hearing aids and the results of above-described testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment are derived from the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. 38 C.F.R. § 4.85(a). Numeric designations of Level I through XI are assigned by application of Table VI, in which the percentage of speech discrimination is intersected with the puretone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII for a percentage rating. A puretone threshold average, as used in Tables VI and VIA is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. That average is used in all cases, including those in 38 C.F.R. § 4.86 (patterns of exceptional hearing loss), to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA (38 C.F.R. § 4.85(d)). Where puretone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86(a) (describing an exceptional pattern of hearing impairment). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher number of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86(b) (describing another exceptional pattern of hearing impairment). 1. An Increased Disability Rating of 40 percent for the Service-Connected Bilateral Sensorineural Hearing Loss is Granted. On February 15, 2018, the Veteran filed a claim for increased rating for hearing loss (from a noncompensable rating). When the RO granted an increase to 20 percent, the Veteran timely filed a Notice of Disagreement, appealing for an even higher rating. The Veteran asserted that he has been unable to work in his established field (airline industry) due to hearing loss, raising the possibility of a TDIU, which is addressed in the remand section below. At an April 2021 Board hearing, the Veteran discussed the difficulty he had due to hearing loss. He stated that the objective when he received hearing tests for work was always to maintain employment, so he did a lot of compensating for the hearing loss by doing various things like working overseas (where frequently asking someone to repeat himself or herself could be attributed to a language barrier rather than hearing) and trying freight lines (where there was limited interaction). In March 2018, the Veteran participated in a VA examination to help determine the current level of hearing impairment. The March 2018 audiometric test results are as follows: March 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 80 95 100 81.25 88 LEFT 55 75 100 105+ 83.75 80 Applying the test results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. In this case the alternative method for rating hearing loss based on an exceptional hearing pattern have been met. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) is more nearly approximated in this case, as the puretone thresholds for the left ear and nearly all of the right ear were at a frequency of 55 decibels or more. For such cases, the hearing loss can be assessed by using Table VIA if it yields a higher result. In this case, applying the audiometric test results to the exceptional hearing pattern regulation results in a 40 percent disability rating for the hearing loss. The evidence shows that, for the entire rating period on appeal from February 15, 2018, the service-connected bilateral hearing loss more nearly approximated an exceptional pattern of hearing impairment, such that the bilateral hearing loss could be evaluated via Table VIA, which results in a Level VII in the right ear and a Level VIII in the left ear. Table VIA yields a Level VII in the right ear and a Level VIII in the left ear. Applying the Level VII for the right ear and Level VIII for the left ear yields a 40 percent rating. While the evidence also includes two private audiometric examinations, in December 2017 and February 2021, neither private audiometric examination yields a higher rating. The Board is using the March 2018 VA examination for rating purposes throughout the period on appeal because this examination report supports a 40 percent rating, and the other test results, while having slightly different audiometric scores, are not as such variance with the March 2018 test or outside of normal testing variations to call into question the March 2018 test results, which show that the 40 percent rating criteria for an exceptional hearing pattern are met. Accordingly, resolving reasonable doubt in favor of the Veteran in reconciling the different audiometric test scores, the evidence supports an increased disability rating of 40 percent, but no higher, for the service-connected bilateral hearing loss. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. A TDIU is Remanded. As mentioned above, the Veteran has raised the possibility of a TDIU due to the service-connected hearing loss and tinnitus. In an August 2018 Notice of Disagreement, the Veteran asserted that due to hearing loss he has been unable to work in his established field as a pilot because of an inability to hear the tower during take-off, which meant that he could not maintain certifications at the necessary levels. At the April 2021 Board hearing, the Veteran further elaborated on the challenges caused by the hearing loss and reported ways that he has attempted to compensate over time. The Veteran stated that he was last able to work full-time in August 2017, and described various volunteer roles that he had and whether the hearing loss harmed those positionsat a literacy project, he could not enunciate well enough to teach people English, but at a soup kitchen and at the pound he had volunteer roles that were possible despite hearing loss. The Veteran has provided an opinion from his primary care physician that attributes a severe limitation in the ability to hold any kind of job to both the non-service-connected bilateral hip disorder and the service-connected hearing loss and tinnitus. The issue of a TDIU has not yet been developed by the RO. In particular, the Veteran has not been asked to provide a VA Form 21-8940 (TDIU claim form). The claim form provides useful information that the Board currently lacks, such as information on education, training, and work and employment and wage/salary history. The Board requests the Veteran to fully complete all sections and provide all information requested by the TDIU claim form, as failure to provide all the requested information may result in denial of the TDIU for this reason. See 38 C.F.R. § 3.158. The RO should conduct all appropriate development, to include checking to see if the Veteran received Social Security Administration funding or any other source of income related to disability and to include checking with previous employers. Because the combined rating percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) should be addressed by the Director of Compensation and Pension Service if the RO finds that such referral is warranted. The issue of TDIU is REMANDED for the following actions: 1. Provide a copy of the VA Form 21-8940 (TDIU claim form) to the Veteran, advising the Veteran that he has one year to provide a completed TDIU claim form, and that failure to provide all information requested on that form might result in denial of the TDIU claim under 38 C.F.R. § 3.158. 2. Conduct any necessary development arising from the TDIU claim form and adjudicate the claim for TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.