Citation Nr: 21009454 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-08 694 DATE: February 22, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s bilateral hearing loss was manifested at different levels, but no worse than Level II in the right ear and Level I in the left ear in October 2012, Level I in the right ear and Level II in the left ear in February 2013, Level I bilaterally in October 2015, and Level I in the right ear and Level II in the left ear in September 2020. CONCLUSION OF LAW The criteria for a rating greater than 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.21, 4.85 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1980 to October 1986. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal for bilateral hearing loss was previously before the Board in March 2019 and July 2020. In both decisions, the Board remanded the matter for further development. The Board finds that its pertinent remand directives (to issue a supplemental statement of the case from the March 2019 remand and to obtain a new examination from the July 2020 remand) have been completed and the matter has been properly returned to the Board for adjudication. Of note, issues considered in previous decisions have either been finally denied by the Board (for an increased rating for a back disability) or have been granted by the RO (for service connection for a psychiatric disorder) such that the issues listed above are all that remain for appellate consideration. Finally, the Board finds that a TDIU claim has been reasonably raised by the record and asserts jurisdiction over the matter at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009) Increased Rating 1. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss Disability ratings are determined by the applications of the 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). With hearing loss disabilities, evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85, the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the Puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85, by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment. When the Puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 dB 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. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Further, when the Puretone threshold is 30 decibels or less at 1,000 Hz and 70 dB or more at 2,000 Hz, 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. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral. The Veteran’s VA treatment records reflect the Veteran has trouble understanding speech while watching television. His VA treatment records document he wears hearing aids. In February 2013, at an audiology consultation, the Veteran’s air conduction testing results were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 40 70 70 51.25 96% LEFT 20 65 75 70 57.5 92% The February 2013 VA audiologist concluded the Veteran had mild to severe sensorineural hearing loss. The VA audiologist noted the Veteran’s speech recognition ability was excellent for the right ear and good for the left ear; the VA audiologist found the impedance test results were consistent with normal middle ear function bilaterally. This level of threshold average and word recognition correspond with Level I in the right ear and Level II in the left ear in Table VI. A non-compensable rating is derived from Table VII which does not provide the scores required for an increased evaluation. The Veteran underwent VA examinations in October 2012, May 2015, and September 2020. In the VA examinations, the Puretone thresholds were recorded as follows: October 2012 results HERTZ 1000 2000 3000 4000 Avg CNC 20 35 60 60 44 88% 10 55 60 60 46 92% The October 2012 VA examination reflects this level of threshold average and word recognition correspond with Level II in the right ear and left ear in Table I. A non-compensable rating is derived from Table VII. May 2015 results HERTZ 1000 2000 3000 4000 Avg CNC 25 45 65 65 50 96% 25 65 70 65 56 100% The May 2015 VA examination results above reflect this level of threshold average and word recognition correspond with Level I in the right ear and left ear in Table VI. A non-compensable rating is derived from Table VII. September 2020 results HERTZ 1000 2000 3000 4000 Avg CNC 25 55 70 65 53.75 94% 25 65 75 65 57.5 94% In June 2020, the Veteran’s representative submitted a brief stating the Veteran’s hearing was more severe than what was presented during his prior VA examination in May 2015. As a result, the Veteran underwent an additional VA examination. As shown above, the September 2020 VA examination reflects this level of threshold average and word recognition correspond with Level I in the right ear and Level II in the left ear in Table VI. A non-compensable rating is derived from Table VII. The assignment of disability ratings for hearing impairment is derived from a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, the mechanical application does not yield a rating greater than 20 percent for the Veteran’s level of bilateral hearing loss during the appeal period. The Board has considered the Veteran’s statements regarding the severity of his symptoms. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered above. Thus, although the Board is sympathetic to the Veteran’s complaints, it finds that entitlement to an increased evaluation has not been demonstrated in this case. 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, which has not been demonstrated by the available audiological results. The appeal seeking a rating greater than 20 percent for bilateral hearing loss is hereby denied. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities is remanded. As discussed above, a TDIU claim has been raised by the record. The Veteran reported he stopped working due to his back pain. He attempted other roles upon retirement in December 2015, but was unable to continue working in those roles. He reported he worked as an electrician in 2017 and 2018, but stopped due to his back disability, a disability in which he is service connected. Additionally, in the November 2020 rating decision, the Veteran was granted service connection for depressive disorder with an evaluation of 70 percent. The VA examiner noted the Veteran would have difficulty adapting in a worklike setting and difficulty adapting to work and stressful situations. As such, further development is necessary prior to the adjudication of this appeal. Of note, the Veteran has not yet been provided with VA Form 21-8940, nor has any development been undertaken with respect to his employment history. Such action is now required. The matter is REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-8940. Obtain a statement from the Veteran regarding his work history, to include a statement as to his current employment status. All actions to obtain the requested information should be documented in the claims file. 2. Thereafter, complete any development necessary regarding the claim of entitlement to a TDIU, to include the provision of VA Form 21-4192 to his last identified employers. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.