Citation Nr: 21008288 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 16-10 099 DATE: February 16, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to February 18, 2015, is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss from February 18, 2015, to April 28, 2015, is denied. Entitlement to a compensable rating for bilateral hearing loss from April 29, 2015, to September 8, 2019, is denied. Entitlement to a 10 percent rating for bilateral hearing loss, effective September 9, 2019, is granted. Entitlement to a rating in excess of 10 percent for bilateral hearing loss since January 20, 2020, is denied. REMANDED Entitlement to a separate evaluation for psychiatric impairment as a manifestation of the Veteran's service-connected bilateral hearing loss is remanded. FINDINGS OF FACT 1. Prior to February 18, 2015, the Veteran hearing loss was manifested by Level I hearing impairment in the left ear and Level III in the right ear. 2. From February 18, 2015, to April 28, 2015, the Veteran’s hearing loss was manifested by Level II hearing impairment in the left ear and Level VII in the right ear. 3. From April 29, 2015, to September 8, 2019, the Veteran’s hearing loss was manifested by Level I hearing impairment in the left ear and Level III in the right ear. 4. From September 9, 2019, the Veteran’s hearing loss was manifested by Level V hearing impairment in the left ear and Level III in the right ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to February 18, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, 4.86, DC 6100. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss from February 18, 2015, to April 28, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, 4.86, DC 6100. 3. The criteria for a compensable rating for bilateral hearing loss from April 29, 2015, to September 8, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, 4.86, DC 6100. 4. The criteria for a 10 percent rating for bilateral hearing loss from September 9, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1969 to August 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in September 2019, a transcript of which is of record. This matter was remanded by the Board in a November 2019 decision for additional development. The evidence of record indicates the Veteran is still currently employed and working; therefore, the issue of TDIU entitlement is not before us at this time. 1. Entitlement to a 10 percent rating for bilateral hearing loss, effective September 9, 2019 The Veteran’s hearing loss is rated at 0 percent disabling prior to February 18, 2015, 10 percent from February 18, 2015 to April 28, 2015, and 0 percent thereafter under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. In the November 2019 BVA decision, the Board noted the Veteran reported the Veteran testified at his September 2019 hearing that his hearing loss had worsened since the last VA examination in April 2015. The matter was remanded to afford the Veteran a new VA examination. The Veteran was provided the VA examination for hearing loss in January 2020; based upon the results of the examination, the Veteran’s hearing loss disability was increased to 10% disabling, effective January 20, 2020, the date of the examination. See July 2020 Rating Decision. Under Diagnostic Code 6100 the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 38 C.F.R. § 4.85(c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. The Veteran is currently in receipt of staged ratings for his bilateral hearing loss. The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, staged ratings for have already been assigned for the Veteran’s bilateral hearing loss; therefore, the Board will discuss the propriety of the ratings assigned at each stage. At the January 2020 VA examination, the Veteran had a right ear speech discrimination of 84 percent with an average dB loss of 66.3 while the left ear had a speech discrimination of 72 percent with an average dB loss if 60. The assigned 10 percent disability rating was appropriate based on the objective testing results from the examination; the RO made the effective date the day of the VA examination shows an increase in the severity of the disability. The Veteran reported in the September 2019 Board hearing that his hearing loss has worsened since the most recent examination in April 2015. This warrants an increased rating from the date of the Board hearing. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). The Board finds that the effective date of Veteran’s service-connected bilateral hearing loss should be changed to account for this period of disability, and the 10 percent rating is granted from September 9, 2019, the date of the Board hearing which ascertained an increase in the disability. Higher evaluations are assigned for more severe hearing impairment. With application of the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of III and the left ear hearing loss, at its worst, is assigned a numeric designation of V. These test scores do not show that the Veteran meets the criteria for a rating in excess of 10 percent for his bilateral hearing loss. Comparing the Veteran’s disability level and symptomatology of his bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that a rating in excess of 10 percent from September 9, 2019, for Veteran’s service-connected bilateral hearing loss is not warranted. In addition, for the reasons set forth above, a rating in excess of 10 percent, which has been in effect since January 20, 2020, must be denied. 2. Entitlement to a compensable rating for bilateral hearing loss prior to February 18, 2015 The Veteran is assigned a noncompensable rating for bilateral hearing loss from April 29, 2011, the date of claim, to February 18, 2015. For the period prior to February 18, 2015, The Veteran was afforded a VA examination for hearing loss in January 2012. The results of the VA examination showed the Veteran had a right ear speech discrimination of 88 percent with an average dB loss of 61 while the left ear had a speech discrimination of 92 percent with an average dB loss of 60. Higher evaluations are assigned for more severe hearing impairment. With application of the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of III and the left ear hearing loss, at its worst, is assigned a numeric designation of I. These test scores do not show that the Veteran meets the criteria for a rating in excess of 0 percent for his bilateral hearing loss. Comparing the Veteran’s disability level and symptomatology of his bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the claim for a rating in excess of 0 percent prior to February 18, 2015 for his service-connected bilateral hearing loss is denied. 3. Entitlement to a rating in excess of 10 percent for bilateral hearing loss from February 18, 2015, to April 28, 2015 The Veteran is assigned a 10 percent for bilateral hearing loss from February 18, 2015 to April 28, 2015. For the period from February 18, 2015, to April 28, 2015, the Veteran was afforded a private audiogram for hearing loss in February 2015. The results of the private audiogram showed the Veteran had a right ear speech discrimination of 44 percent with an average dB loss of 69 while the left ear had a speech discrimination of 84 percent with an average dB loss of 51. Higher evaluations are assigned for more severe hearing impairment. With application of the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of VII and the left ear hearing loss, at its worst, is assigned a numeric designation of II. These test scores do not show that the Veteran meets the criteria for a rating in excess of 10 percent for his bilateral hearing loss. Comparing the Veteran’s disability level and symptomatology of his bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the claim for a rating in excess of 10 percent from February 18, 2015 to April 28, 2015 for his service-connected bilateral hearing loss is denied. 4. Entitlement to a compensable rating for bilateral hearing loss from April 29, 2015, to September 8, 2019 The Veteran is assigned a noncompensable percent for bilateral hearing loss from April 29, 2015 to September 8, 2019. For the period from April 29, 2015 to September 8, 2019, the Veteran was afforded a VA examination for hearing loss in April 2015. The results of the VA examination showed the Veteran had a right ear speech discrimination of 88 percent with an average dB loss of 61,3 while the left ear had a speech discrimination of 92 percent with an average dB loss of 51.3. Higher evaluations are assigned for more severe hearing impairment. With application of the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of III and the left ear hearing loss, at its worst, is assigned a numeric designation of I. These test scores do not show that the Veteran meets the criteria for a rating in excess of 0 percent for his bilateral hearing loss. Comparing the Veteran’s disability level and symptomatology of his bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the claim for a rating in excess of 0 percent from April 29, 2015 to September 8, 2019 for his service-connected bilateral hearing loss is denied. REASONS FOR REMAND 1. Entitlement to a separate rating for psychiatric impairment as a manifestation of the Veteran's service-connected bilateral hearing loss is remanded. In his September 2019 Board hearing, the Veteran raised the issue of entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected bilateral hearing loss. A “separate evaluation” in this decision as a term of art to refer to VA’s practice of “rat[ing] a single disability under multiple diagnostic codes without pyramiding.” See Bailey v. Wilkie, 2021 U.S. App. Vet. Claims LEXIS 13, *12, __ Vet.App. __, 2021 WL 45679; Morgan v. Wilkie, 31 Vet.App. 162, 164 (2019); see also Lyles v. Shulkin, 29 Vet. App. 107, 113 (2017); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In Esteban, the Court held that “[t]he critical element is that none of the symptomatology for any one of these three conditions is duplicative of or overlapping with the symptomatology of the other two conditions; see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir 2009). In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the United States Court of Appeals for Veterans Claims (Court) held, “VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code.” 31 Vet. App. 162, 167. Thus, a remand is warranted for VA to determine whether the Veteran has a psychiatric impairment that is a manifestation of his service-connected bilateral hearing loss disability. Id. See also Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371 (Dec. 20, 2020). As such, there is no examination conducted for evaluating the possibility of a psychiatric disability, to include any mental issues, anxiety or depression, as secondary to the Veteran’s service-connected bilateral hearing loss disability. Consequently, a remand is required, pursuant to the Court’s decision in Morgan, to accord the Veteran a new VA examination that adequately identifies all manifestations and functional impairment due to the Veteran’s hearing loss disability, including psychiatric impairment, to specifically include any mental issues, anxiety or depression, because Morgan requires VA to exhaust all schedular alternatives before considering the possibility of an extraschedular rating. Morgan at 167. The matters are REMANDED for the following action: 1. Associate any pertinent VA or private medical records that are not already of record with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, of the nature, extent and severity of his hearing loss symptoms and the impact of the condition on his ability to work. The Veteran is advised that this may specifically include the nature, extent and severity of hearing loss manifested impairments such as psychiatric issues. The Veteran should also be invited to submit lay evidence regarding the impact of the manifestations of his hearing loss disability, to include any psychiatric impairment such as anxiety and depression on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be left to the discretion of the examiner. The examiner must review the claims file and should note that review in the report. Any and all studies or tests deemed necessary should be performed. The examiner should elicit information about the nature of the hearing loss disability and all symptoms or manifestations of the disability when present, even if not present at the time of the examination, including psychiatric manifestations such as mental issues, anxiety and/or depression. Based on a review of the record, to include the Veteran’s competent lay testimony, the examiner must state whether it is at least as likely as not that the Veteran has any psychiatric impairment stemming from his hearing loss disability, to specifically include any anxiety or depression. The examiner should also describe the severity of the psychiatric symptoms and the impact of these symptoms on the Veteran’s ability to work. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.