Citation Nr: 21005948 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-35 578 DATE: February 2, 2021 ORDER Entitlement to a rating in excess of 0 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a rating in excess of 60 percent for a heart disability is remanded. Entitlement to a total rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT During the pendency of the appeal, the Veteran’s bilateral hearing loss disability has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level IV in the left ear. CONCLUSION OF LAW For the entire rating period, the criteria for a rating in excess of 0 percent for bilateral hearing loss 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 FINDING AND CONCLUSION Entitlement to a rating in excess of 0 percent for bilateral hearing loss Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Separate ratings can be assigned for separate periods of time during the claim period based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of disability ratings for hearing impairment is 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 disability rating of a hearing loss disability is determined by applying the criteria of 38 C.F.R. § 4.85. Under those criteria, ratings for bilateral hearing loss 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 pure tone hearing threshold level, as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz, or cycles per second, divided by four. That average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, Numeric Designation of Hearing Impairment Based on Pure Tone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). 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(b). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage rating is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Where impaired hearing is service connected in only one ear, the nonservice-connected ear will be assigned a Roman numeral I for rating purposes. 38 C.F.R. § 4.85(f). In addition, when the pure tone threshold at each of the four specified frequencies of 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. When the 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. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. An examination of hearing impairment for VA purposes must be conducted by a state-licensed audiologist, and must contain a pure tone audiometry test and a controlled speech discrimination test, utilizing the Maryland CNC word list. 38 C.F.R. § 4.85(a). In a December 2014 VA audiology examination report, a VA examiner noted that pure tone thresholds, in decibels, were:        HERTZ       500 1000 2000 3000 4000 RIGHT 20 25 35 50 60 LEFT 25 35 70 75 75 The VA examiner noted that the average pure tone thresholds from 1000 to 4000 Hertz were 43 decibels in the right ear and 64 decibels in the left ear. The Veteran's pure tone thresholds in both ears were not of sufficient severity to allow for the use of Table VIa as an exceptional pattern of hearing loss was not shown. 38 C.F.R. § 4.86. Speech audiometry found speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. Entering the average pure tone threshold and speech recognition scores from the December 2014 VA audiology examination report into Table VI yields a highest numeric designation of hearing impairment of Level I for the right ear and Level III for the left ear. 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a rating of 0 percent under Diagnostic Code 6100. In a November 2019 VA audiology examination report, a VA examiner noted that pure tone thresholds, in decibels, were:        HERTZ       500 1000 2000 3000 4000 RIGHT 25 30 35 60 90 LEFT 20 45 65 70 85 The VA examiner noted that the average pure tone thresholds from 1000 to 4000 Hertz were 54 decibels in the right ear and 66 decibels in the left ear. The Veteran's pure tone thresholds in both ears were not of sufficient severity to allow for the use of Table VIa as an exceptional pattern of hearing loss was not shown. 38 C.F.R. § 4.86. Speech audiometry found speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. Entering the average pure tone threshold and speech recognition scores from the November 2019 VA audiology examination report into Table VI yields a highest numeric designation of hearing impairment of Level II for the right ear and Level IV for the left ear. 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a rating of 0 percent under Diagnostic Code 6100. The evidence does not indicate that the Veteran's hearing loss symptomatology has more nearly approximated that level required for an increased rating in excess of 0 percent for the entire increased rating period. The probative audiological evidence, found in the December 2014 and November 2019 VA audiology examination reports, contains no findings supporting the assignment of a rating in excess of 0 percent for bilateral hearing loss disability. The Board has considered the Veteran's statements regarding his disability, to include difficulties in hearing others, especially in areas with background noise. The Board understands that the Veteran believes that his hearing loss disability is of greater severity than contemplated by the currently assigned 0 percent rating. However, as a layperson without the appropriate medical training and expertise, the Veteran is not competent to provide a probative opinion on a medical matter, especially as to the severity of his hearing loss disability in relation to the applicable rating criteria. Medical examiners, including the VA examiners, have conducted objective audiograms to measure the severity of the Veteran's hearing loss disability. The rating criteria determination is multi-factorial, based on all evidence. However, the primary consideration is the mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). For the entire initial rating period, there is no probative evidence of an unusual hearing pattern such that any other rating provisions would apply. The Board finds that the preponderance of the evidence is against the claim for an increased rating for bilateral hearing loss. Therefore, the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. In a July 1970 report of medical history, written approximately two months into service, the Veteran reported having experienced high blood pressure previously. The Veteran did not specify whether the disability had manifested itself either before or during service. The Veteran has not been provided with an examination to determine the etiology of claimed hypertension. Remand is necessary to schedule an examination. 2. Entitlement to a rating in excess of 60 percent for a heart disability is remanded. In April 2019, the Board remanded the claim for the scheduling of an examination to determine the current severity of a heart disability. The record indicates that VA provided the requested examination on November 1, 2019. However, subsequent medical records indicate hospitalization due to chest pain related to the Veteran's heart disability in December 2019. Because the record suggests a potential worsening of the heart disability, remand is necessary to schedule an additional examination. 3. Entitlement to a total rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Finally, because a decision on the issues of service connection for hypertension and a higher rating for a heart disaiblity could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a VA medical doctor. The examiner must review the claims file, to include the service medical records, to include the July 1970 report of medical history in which the Veteran reported having high blood pressure at a prior date; the post-service treatment records; and the lay evidence, to include the Veteran's statements. After reviewing the claims file, interviewing the Veteran, and providing an examination, the examiner is asked to provide the following opinions: (a.) Did the Veteran's hypertension clearly and unmistakably (undebatable) preexist the Veteran’s entrance to service? (b.) If the examiner finds that hypertension clearly and unmistakably preexisted service, was hypertension clearly and unmistakably not aggravated by service? (c.) If the examiner finds hypertension did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that hypertension is related to service. (d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension (1) began during active service, (2) manifested within one year after the Veteran's May 1973 separation from service, or (3) was noted during service with continuity of the same symptomatology since service? 2. Schedule the Veteran for an examination by a cardiologist to determine the current severity of a service-connected heart disability. The examiner must review the claims file and should note that review in the report. The examiner should provide a full description of the disability, and report all signs and symptoms necessary for rating the disability under the rating criteria. The examiner should provide a METS score at which dyspnea, fatigue, angina, dizziness, or syncope develops by exercise testing. If exercise testing cannot be performed for medical reasons, the examiner should so state, and should provide an estimated METS score. The examiner should state whether or not the Veteran has chronic congestive heart failure, or left ventricular dysfunction with an ejection fraction less than 30 percent. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's heart disability alone, and discuss the effect of the Veteran’s heart disability on any occupational functioning and activities of daily living. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities of a heart disability, tinnitus, and bilateral hearing loss. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 3. Then, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.