Citation Nr: 21009183 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-09 051 DATE: February 19, 2021 ORDER Entitlement to a rating in excess of 90 percent for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s hearing loss manifested by no more than Level XI hearing in the left ear and Level X hearing in the right ear on any single examination. CONCLUSION OF LAW The criteria for a rating in excess of 90 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July1961 to July 1964. In January 2021, the Veteran was informed that the Veterans Law Judge (VLJ) who conducted the May 2019 hearing was no longer with the Board. The Veteran was then informed that if no response was received within 30 days, the Board would assume that another hearing was not requested. No response from the Veteran has been forthcoming. As such, this increased rating claim has been reassigned to the undersigned VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Board remanded the appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) for additional development in August 2019. After substantial compliance with the Board remand directives to obtain additional outstanding records and to afford the Veteran a new VA examination, the AOJ has returned the appeal to the Board for appellate review. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of the claim for an increased rating for the service-connected disability listed above. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a higher rating for bilateral hearing loss Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC). The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is indicated where the row and column intersect. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). 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. See 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. See 38 C.F.R. § 4.86(b). The Veteran asserts that he is entitled to a rating in excess of 90 percent from September 27, 2016 for his service-connected bilateral hearing loss. In December 2016, the Veteran was afforded a VA audiological examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 average RIGHT 100 100+ 100+ 100+ 100 LEFT 65 80 100+ 100+ 86 The Veteran noted that his bilateral hearing loss affected his daily life including difficulty hearing and understanding others. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 20 percent in the left ear. The examiner found that use of speech discrimination scores was appropriate for the Veteran. Under the rating criteria, the examination results constitute Level XI hearing in the left ear and Level VIII hearing in the right ear. When considered together, the result is a 70 percent disability rating. However, the Board finds that 38 C.F.R. § 4.86(a) is applicable as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, In this regard, under 38 C.F.R. § 4.86(a), the examination results constitute Level VIII hearing in the left ear and Level X hearing in the right ear. Because each ear is evaluated separately and under this table results in a higher Roman numeral for the right ear, that ear will be evaluated as Level X hearing. Thus, as the Veteran’s hearing would be assigned Level XI hearing in the left ear under Table VI and Level X hearing in the right ear under Table VIa, a 90 percent rating is appropriate under Table VII. The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In a September 2017 statement, the Veteran stated that he was nearly deaf in his right ear and that he was unable to hear the examiner in his right ear during the December 2016 VA examination. He requested a new VA examination as he believed the December 2016 was inadequate. In April 2018, the Veteran was afforded another VA audiological examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 average RIGHT 100+ 100+ 100+ 100+ 100 LEFT 100 100+ 100+ 100+ 100 The Veteran noted that his bilateral hearing loss affected his daily life including difficulty hearing and understanding others. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 48 percent in the left ear. The examiner found that use of speech discrimination scores was appropriate for the Veteran. Under the rating criteria, the examination results constitute Level VIII hearing in the right ear and Level X hearing in the left ear. When considered together, the result is a 60 percent disability rating. Further, the Board finds that 38 C.F.R. § 4.86(a) is applicable as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more. Under 38 C.F.R. § 4.86(a), the examination results constitute Level X hearing bilaterally. When considered together, the result is an 80 percent disability rating. The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. During his May 2019 Board hearing, the Veteran asserted that his service-connected bilateral hearing loss worsened since he was last afforded a VA examination in April 2018. Also, he noted that the testing results of the April 2018 VA examination were not accurate because he was pressing a button randomly instead of pressing the button when he heard a sound. In July 2020, the Veteran was afforded a VA contract examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 average RIGHT 60 105+ 105+ 105+ 93.75 LEFT 75 85 105+ 105+ 92.5 The Veteran noted that his bilateral hearing loss affected his daily life including difficulty hearing and understanding others. Speech audiometry revealed speech recognition ability of 36 percent in the right ear and of 44 percent in the left ear. However, the examiner found that use of speech discrimination scores was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. The Board finds that 38 C.F.R. § 4.86(a) is applicable as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more. Under 38 C.F.R. § 4.86(a), the examination results constitute Level IX hearing bilaterally. When considered together, the result is a 60 percent disability rating. The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The VA examiner noted that there was an improvement noted between 250 Hertz and 1000 Hertz in the right ear and between 250 Hertz and 2000 Hertz in the left ear when compared to his April 2018 VA audiological examination. The examiner was unable to accurately compare the current word recognition score to the April 2018 word recognition score due to the Veteran’s poor reliability, due to his cognitive and memory abilities. The Board acknowledges the Veteran’s assertions and sincere belief that he is entitled to a disability rating in excess of 90 percent for his bilateral hearing loss. However, as evidenced above, the audiology examinations yielded results that warrant no more than a 90 percent disability rating. To the extent that his hearing is impaired, the fact that the Veteran’s hearing acuity is less than optimal does not by itself establish entitlement to a higher disability rating. To the contrary, it is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. The medical evidence does not support the assignment of ratings higher than those assigned during the entire appeal period. The Board acknowledges the Veteran has reported that the functional impact of his hearing loss includes difficulty hearing conversations and understanding others. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, it is notable that difficulty or inability to hear or understand speech or to hear various other sounds in various contexts is contemplated in the schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board in no way discounts or minimizes the difficulties that the Veteran undoubtedly experiences as a result of his hearing loss. However, as explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology results of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. For all the foregoing reasons, the Board finds that the evidence does not support the assignment of a rating in excess of 90 percent from September 27, 2016 for the Veteran’s service-connected bilateral hearing loss. Therefore, entitlement to an increased rating for the impairment associated with bilateral hearing loss is not warranted. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. In statements submitted during the appeal, the Veteran contends that his service-connected bilateral hearing loss prevents him from working. In a June 2019 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran stated that his hearing loss affected full-time employment in December 2016. However, the Veteran did not list his employer. The Veteran should be asked to identify the employer, and the AOJ should attempt to obtain employment information from this former employer (as well as others identified by the Veteran). VA treatment records also indicate that the Veteran reported retiring as a truck driver and that he began working as a property manager. Further clarification from the Veteran regarding his employment history is also necessary. Therefore, a remand is required.   The matters are REMANDED for the following action: 1. Request that the Veteran fully complete a current VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and provide a complete employment history. Then, undertake all indicated development needed to adjudicate the Veteran’s TDIU claim to include a request for all relevant employment information from the Veteran’s former employers including the trucking company. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.