Citation Nr: 21010197 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-27 289 DATE: February 24, 2021 ORDER A rating in excess of 30 percent for bilateral hearing loss prior to November 17, 2016 is denied. A 40 percent rating, but no higher, for bilateral hearing loss from November 17, 2016 is granted. A rating in excess of 40 percent for bilateral hearing loss from November 17, 2016 is denied. A rating in excess of 30 percent for COPD is denied. REMANDED Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. Prior to November 17, 2016, the Veteran’s hearing loss was manifested by Level VII hearing impairment in the left ear and Level VI in the right ear hearing loss. 2. From November 17, 2016, the evidence is clear that the Veteran’s hearing loss was manifested by Level VII hearing impairment in the left ear and Level VIII in the right ear hearing loss, but no higher. 3. The Veteran's service-connected COPD was manifested by a post-bronchodilator FEV-1 of 58 percent and a pre-bronchodilator FEV-1/FVC of 96 percent. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral hearing loss prior to November 17, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for a 40 percent rating for bilateral hearing loss from November 17, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 3. The criteria for a rating in excess of 40 percent for bilateral hearing loss from November 17, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 4. The criteria for a rating in excess of 30 percent disabling for COPD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.97, Diagnostic Codes 6602, 6604. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1970 to March 1972, including combat service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge and the Silver Star. The Veteran presented sworn testimony at a hearing before the undersigned in November 2016. In the November 2018 Board decision, the Board granted service connection for right ear hearing loss and remanded the issues of entitlement to a compensable rating for left ear hearing loss, entitlement to a rating in excess of 30 percent for COPD and entitlement to a TDIU for additional development. In an April 2019 rating decision, the RO combined the Veteran’s right and left hearing loss to reflect bilateral hearing loss and granted an increased evaluation from noncompensable to 30 percent disabling for bilateral hearing loss, effective June 8, 2015. In October 2019, the Veteran was afforded a contemporaneous hearing loss VA examination. In an April 2019 rating decision, the RO granted a 40 percent disability rating for bilateral hearing loss, effective October 30, 2019, the date of the VA examination. Increased Rating 1. Increased Rating for Bilateral Hearing Loss. The Veteran, through his representative, asserts that his bilateral hearing loss, currently evaluated as 30 percent from June 8, 2015 and 40 percent from October 30, 2019, warrants a higher evaluation. See August 2020 Appellate Brief. The Veteran’s bilateral hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 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. Prior to November 17, 2016 The Veteran asserts that his bilateral hearing loss warrants a rating in excess of 30 percent prior to October 30, 2019. See August 2020 Appellate Brief; see also June 2015 VA 21-526EZ, Fully Developed Claim. At the August 2015 VA hearing examination, the Veteran had pure tone threshold of 40, 70, 70 and 70 decibels in the right ear and pure tone thresholds of 50, 60, 70 and 80 decibels in the left ear at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 63 decibels in the right ear and 65 decibels in the left ear. Speech recognition ability was 64 percent in the right ear, and 56 percent in the left ear. 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 VI and the left ear hearing loss, at its worst, is assigned a numeric designation of VII. These test scores do not show that the Veteran met the criteria for a rating in excess of 30 percent for his bilateral hearing loss prior to November 17, 2016. Therefore, the Board finds that the claim for a rating in excess of 30 percent for his service-connected bilateral hearing loss prior to November 17, 2016 is denied. A 40 percent rating from November 17, 2016. The Veteran asserts that his bilateral hearing loss warrants a rating in excess of 40 percent. See August 2020 Appellate Brief. The Veteran’s bilateral hearing loss is rated at 30 percent for June 8, 2015 and at 40 percent from October 30, 2019. Since the Veteran testified at his November 2016 Board hearing that his hearing disability had worsened since his last VA examination in August 2015, the question for the Board is whether the Veteran's bilateral hearing disability warrants a rating higher than 40 percent from the date of claim to the Veteran's hearing date, pursuant to Swain v. McDonald, 27 Vet. App. 219, 224 (2015). As previously noted, in November 2018, the Board remanded this issue for additional development, to include a contemporaneous VA examination. At the October 2019 VA hearing examination, the Veteran had pure tone thresholds of 55, 90, 90, and 95 decibels in the right ear and pure tone thresholds of 65, 70, 95, and 100 decibels in the left ear at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 84 decibels in the right ear and 83 decibels in the left ear. Speech recognition ability was 94 percent in the right ear, and 96 percent in the left ear. With application of the above test results to 38 C.F.R. § 4.85, Table VI, 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 III. Because the pure tone thresholds at each of the four frequencies were higher than 55 decibels in both ears, each ear’s values are applied to Table VIa. See 38 C.F.R. § 4.86 (a). Applying the values for the right ear and left ear to Table VIa results in a Level VIII Roman numeral designation for the right ear and a Level VII Roman numeral designation for the left ear. Application of these Roman numeral designations to Table VII results in a 40 percent rating, but not higher. As previously stated, the Board finds that an award of 40 percent disability rating from the date of the November 17, 2016 Board hearing is appropriate as the Board hearing represents the first factually ascertainable increase in the Veteran's disability. As held by the Court in Swain, 27 Vet. App. 219, the effective date is governed by when the increase is factually ascertainable, not by when proper testing for rating purposes is actually conducted. In other words, a delay in obtaining a rating-compliant examination following evidence of worsening should not lead to the Veteran being denied a higher rating. Additionally, the Board denies a rating in excess of 40 percent prior to November 17, 2016 as the most competent evidence of record prior to the Board hearing, the August 2015 VA examination does not show left ear impairment of Level VII hearing impairment in the left ear and right ear impairment above Level VI. Therefore, the Board finds that the claim for a rating in excess of 40 percent for service-connected bilateral hearing loss from November 17, 2016 is denied. 2. Entitlement to a rating in excess of 30 percent for COPD. The Veteran seeks a rating in excess of 30 percent for his service-connected COPD. Specifically, the Veteran testified that his COPD had worsened since his last VA examination in August 2015. See November 2016 Hr’g Tr. The Veteran's service-connected COPD is rated at 30 percent under 38 C.F.R. § 4.97, Diagnostic Codes 38 C.F.R. § 4.97, Diagnostic Code 6604. Under Diagnostic Code 6604, a 30 percent rating is assigned for Forced Expiratory Volume in one second (FEV-1) of 56- to 70-percent predicted, or the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 56 to 70 percent, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 56- to 65-percent predicted. A 60 percent rating is assigned for FEV-1 of 40- to 55-percent predicted, or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40- to 55-percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned for FEV-1 less than 40 percent of predicted value, or FEV-1/FVC less than 40 percent, or DLCO (SB) less than 40-percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or cor pulmonale (right heart failure), or right ventricular hypertrophy, or pulmonary hypertension (shown by Echo or cardiac catheterization), or episode (s) of acute respiratory failure, or requires outpatient oxygen therapy. 38 C.F.R. § § 4.9, Diagnostic Code 6604. Pulmonary function tests (PFTs) are generally required to evaluate COPD. If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. When the PFTs are not consistent with clinical findings, evaluate based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. When evaluating based on PFTs, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § § 4.96 (d). The Veteran contends that his current symptoms associated with his COPD is greater than the currently assigned evaluation. See July 2020 Appellate Brief. The Veteran was examined for his COPD in November 2019. The examiner noted a diagnosis of COPD and noted that he required intermittent use of inhalational bronchodilator and daily use of inhalational anti-inflammatory medication. The November 2019 VA examination reflects a pulmonary function test (PFT) which measured a forced expiratory volume (FEV-1) of 50, a forced vital capacity (FVC) of 79, with the ratio of FEV-1 to FCV (FEV-1/FCV) of 47 percent, and FEV-1 was to 50 percent. PFT findings for DLCO was to 55 percent predicted. Post-bronchodilator findings showed FVC of 92 percent predicted, FEV-1 to 58 percent predicted and FEV-1/FVC to 47 percent. The VA examiner stated that the Veteran’s FEV-1 result most accurately reflected the Veteran's level of disability. The Board finds that the evidence of record does not support a rating in excess of 30 percent for the Veteran's COPD. The medical evidence of record shows the Veteran's respiratory symptoms have met the criteria for a 30 percent disability rating throughout the period on appeal, based on the measures identified by doctors as the best evaluators of his degree of disability. Further, as COPD has its own code, Diagnostic Code 6604, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (held that where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to a rating in excess of 30 percent for COPD, that doctrine is not applicable. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 3.102. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran asserts that his service-connected bilateral hearing and COPD disabilities have rendered him unemployable. See February 2020 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. At the November 2019 Respiratory VA examination, the Veteran reported that he continues to have daily issues with shortness of breath. He stated that his breathing is worse with activity such as mowing his lawn or during periods of hot or cold weather. He coughs daily, with sputum. He uses an albuterol inhaler occasionally and corticosteroid inhaler daily. The November 2019 VA examiner found the Veteran’s service-connected COPD impacted his ability to work. The examiner stated that the Veteran’s shortness of breath precludes the Veteran’s ability to perform employment that requires prolonged or vigorous physical exertion such as heavy lifting or manual labor. See November 2019 Respiratory Conditions DBQ. The Veteran was last employed as a technical writer. He obtained a master’s degree and additionally completed nursing coursework. The Veteran stated that his hearing disability made his ability to work in nursing difficult. He purchased an amplified stethoscope but still had difficulty hearing the sound of patient’s heartbeats and lungs well enough to accurately assess his patient’s condition. See February 2020 Correspondence; see also November 2016 Hr’g Tr. Additionally, the Veteran testified that his COPD had worsened which caused him to be more fatigued and his hearing disability and COPD disability are preventing him from obtaining and following substantially gainful employment. Id at 19. The Veteran does not currently meet the percentage thresholds for schedular TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board finds that extraschedular consideration of TDIU is warranted. See 38 C.F.R. § 4.16 (b). On remand, the claim for TDIU should be referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: 1. Notify the Veteran that he may again submit lay statements from himself and any individual who has first-hand knowledge of the nature, extent, and severity of his service-connected bilateral hearing loss and COPD and their impact on his ability to work. Additionally, the Veteran is invited to submit a detailed job description of his last job as a nurse, to include any physical and manual labor involved with the duties of the profession. An appropriate amount of time should be allowed for the Veteran to respond. 2. Refer the Veteran’s case to VA’s Director, Compensation Service, for extraschedular consideration of the Veteran’s TDIU claim pursuant to 38 C.F.R. § 4.16(b). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.