Citation Nr: 21010613 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-54 842 DATE: February 25, 2021 ORDER Prior to May 21, 2019, entitlement to a compensable rating for bilateral hearing loss, is denied. From May 21, 2019 to January 22, 2020, entitlement to a rating in excess of 10 percent disabling for bilateral hearing loss, is denied. From January 22, 2020, entitlement to a compensable rating for bilateral hearing loss, is denied. REMANDED Entitlement to a total disability rating based on individual employability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 21, 2019, the Veteran’s bilateral hearing loss disability manifested no worse than level I hearing loss in the right ear, and no worse than level VI hearing loss in the left ear. 2. From May 21, 2019 to January 22, 2020, the Veteran’s bilateral hearing loss disability manifested no worse than level I hearing loss in the right ear, and no worse than level VII hearing loss in the left ear. 3. From January 22, 2020, the Veteran’s bilateral hearing loss disability manifested no worse than level I hearing loss in the right ear, and no worse than level VII hearing loss in the left ear. CONCLUSIONS OF LAW 1. Prior to May 21, 2019, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86 DC 6100. 2. Effective May 21, 2019 to January 22, 2020, the criteria for a rating in excess of 10 percent disabling for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86 DC 6100. 3. From January 22, 2020, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86 DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to June 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by a Department of Veterans Affairs Regional Office (RO). In August 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the claims file. The Board remanded this case in November 2019 and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination and updated VA medical records. The Board notes that the requested VA examination was obtained in February 2020 and that updated VA medical records have been associated with the claims file. Thus, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In a June 2020 rating decision, the RO granted service connection for the right ear. The claim for an increased rating for left ear hearing loss became a claim for entitlement to a higher rating for bilateral hearing loss with a 10 percent rating assigned effective May 21, 2019, and a non-compensable rating effective January 22, 2020. Lastly, the Board notes that during the August 2019 Board Hearing, the Veteran related that “it’s difficult to find a job with the hearing loss…I can’t find a job outside of trucking that’ll hire me.” Based on the above exchange, the Board finds a claim for a TDIU has been raised by the record and is part of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Bilateral Hearing Loss The Veteran was granted service connection for left ear hearing loss in February 1999. He filed a claim for an increased rating evaluation for the left ear in December 2015. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). As the Veteran was granted service connection for right ear hearing loss in June 2020, the issue before the Board is now a claim for an increased rating for bilateral hearing loss. Currently, the Veteran’s bilateral hearing loss has been rated as 0 percent disabling prior to May 21, 2019; 10 percent disabling from May 21, 2019 to January 22, 2020; and 0 percent disabling from January 22, 2020 to present. The Veteran has appealed his assigned ratings. The criteria for rating hearing impairment requires consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) with the results of puretone audiometry tests. The results are charted on Table VI and Table VII, as set forth in the Rating Schedule. In order to establish entitlement to a higher rating for hearing loss it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. 38 C.F.R. § 4.85. Hearing tests will be conducted without hearing aids. The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Turning to the evidence of record, a November 2015 assessment with a private audiologist revealed the following results: Hertz 1000 2000 3000 4000 Right 30 15 NT 15 Left 80 75 NT 65 Puretone threshold averages cannot be determined as testing was not completed at the 3000 hz level. The Veteran also took a speech audiometry test at the time, showing 100 percent word recognition in the right ear and 68 percent word recognition in the left; however, the record did not specify which word list was used for the exam. See December 2015 Medical Treatment Record - Non-Government Facility. The Veteran was provided a VA exam in February 2016. Right ear thresholds were well within normal limits and were not recorded. The left ear's audiometric results were as follows: Hertz 1000 2000 3000 4000 Left 65 65 65 75 Puretone average in the left ear was 67.5. The Veteran also received a speech discrimination score of 92 percent for his left ear. See February 2016 C&P Exam. In an October 2016 letter, the Veteran reported that his hearing loss was life-changing in all aspects, including his relationships. A May 21, 2019 VA audiometric evaluation reported the following results: Hertz 1000 2000 3000 4000 Right 30 20 25 20 Left 80 85 85 80 Puretone averages were 24 in the right ear and 83 in the left ear. It was specifically indicated that the testing results were not adequate for rating purposes. The Veteran was also found to have 96 percent speech recognition in the right ear and 28 percent speech recognition in the left ear; however, the CIDW-22 was used instead of the Maryland CNC word list. See June 2020 CAPRI and June 2020 CAPRI, page 85. During an August 2019 hearing before the undersigned, the Veteran testified that he has been completely deaf in his left ear ever since leaving service. He reported being unable to hear anything when spoken to from the left side. He related that, despite being given a hearing aid for his left ear, he had to turn up the volume so high that it hurt. He also challenged his past audiometric testing results, saying that his results 4 years prior scored him at 98 percent hearing recognition, which he said was not possible. Furthermore, he found it odd that four years later he suddenly had 20 percent hearing recognition. The Veteran further attested that his hearing loss had gotten worse since his 2016 hearing exam. See pages 3, 4, 8. In February 2020 the Veteran was provided a VA examination, which revealed the following results: Hertz 1000 2000 3000 4000 Right 30 20 20 20 Left 70 80 80 80 Puretone averages in the right ear were 23 and left ear 78. The Veteran was also tested using the Maryland CNC word list and found to have speech discrimination scores of 94 percent and 72 percent in the right and left ears, respectively. See February 2020 C&P Exam. After a review of the evidence of record, the Board finds that a compensable rating prior to May 21, 2019, a rating in excess of 10 percent disabling from May 21, 2019 to January 22, 2020, and a compensable rating from January 22, 2020, is not warranted. The November 2015 private exam and May 2019 VA exam did not indicate usage of the Maryland CNC word list when evaluating speech discrimination. Ordinarily, as both a puretone audio test and a speech discrimination test under the Maryland CNC are required to qualify as a valid examination for evaluating hearing impairment, this would leave the February 2016 and February 2020 C&P exams as the only evaluations of record adequate for rating purposes. See 38 C.F.R. § 4.85(a). However, in cases of exceptional patterns of hearing impairment, hearing may be evaluated based on puretone thresholds only. See 38 C.F.R. § 4.86. As the Veteran’s pattern of hearing loss in his left ear is 55 decibels or more at frequencies of 1000, 2000, 3000, and 4000 Hz in the 2016, 2019, and 2020 exams, the Board is able to consider these exams when evaluating the Veteran’s claim for increased ratings. However, as the 2015 exam did not test the Veteran’s hearing at 3000 Hz; that exam is not adequate for rating purposes. Turning to the results of the February 2016 C&P exam, the Board notes that the right ear results were found to be within normal limits but not recorded. Therefore, the Board assigns the right ear the lowest designation level, I, for this exam. The findings for the left ear correlate to a designation of level V. Those results provide a non-compensable rating under DC 6100. Turning to the results of the May 21, 2019 VA exam, the findings correlate to a designation of level I for the right ear, and level VII for the left ear. Those results again provide a non-compensable rating under DC 6100. Finally, turning to the results of the February 2020 C&P exam, the findings correlate to a designation of level I for the right ear, and level VI for the left ear, if using Table VI. Those results provide a non-compensable rating under DC 6100. If using Table VIA, the findings correlate to a designation of level VII for the left ear. Those results, too, provide a non-compensable rating under DC 6100. Therefore, according to the audiometric examinations conducted during the period on appeal, the Board finds that a compensable rating is not warranted prior to May 21, 2019. Additionally, the Board finds that a compensable rating is not warranted from January 22, 2020, to present. The Board notes that the Veteran’s hearing loss is currently rated as 10 percent disabling from May 21, 2019 to January 22, 2020. The audiometric results of record do not support this rating; however, it is the practice of the Board to refrain from disturbing favorable results for the Veteran. The Board emphasizes that disability ratings for hearing impairment are 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). Therefore, at any time during the period on appeal, the currently assigned non-compensable and 10 percent evaluations are the highest ratings that reflect the Veteran’s disability picture as contemplated under the VA rating criteria. To the extent the Veteran may argue or suggest that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make that assertion. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As indicated, the rating of hearing loss disabilities requires the administration of audiometric testing that is administered and interpreted by a professional. Consequently, the preponderance of the evidence is against any increased ratings during the period on appeal. The claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND TDIU As noted above, during the August 2019 Board hearing, the Veteran and his representative raised the issue of entitlement to a TDIU. Specifically, the Veteran testified that his hearing loss disability made it difficult for him to find work outside of trucking. However, February 2020 medical records seem to indicate that the Veteran is currently employed, as his hearing loss “causes” problems for him at work, in the present-tense. See February 2020 C&P Exam, page 5. As such, further development of the TDIU claim is necessary to adequately adjudicate this issue on appeal. Therefore, the Veteran should be afforded an opportunity to furnish information about his employment history during the period on appeal to include income he earned or currently earns from any such employment, the number of hours worked and any special circumstances (i.e. protected environment such as a family business or sheltered workshop), so that the Board may make a determination about whether this employment constitutes marginal employment for VA purposes. The matter is REMANDED for the following actions: 1. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with instructions to complete and return the form as to the period of time to the present the Veteran has been working. The Veteran should be specifically requested to provide information as to the income earned from his employment, specify the number of hours per week for any part-time employment, and any special circumstances attendant to such employment. 2. Then, the AOJ must readjudicate the remaining issue on appeal. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, 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.