Citation Nr: 21012266 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-04 842 DATE: March 3, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial disability rating higher than 30 percent prior to January 22, 2020, for coronary artery disease (CAD) with aortocoronary bypass, status post-coronary artery bypass graft (CABG), is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s service-connected hearing loss manifested in no worse than level III in the right ear and level II in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.85 Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in April 2018. This matter was remanded for Agency of Original Jurisdiction (AOJ) development in May 2018 and August 2020 and has been returned to the Board at this time for further appellate review. The Board finds that there has been substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 168 (1998). Entitlement to a compensable disability rating for bilateral hearing loss is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate evaluations may be assigned for different periods of time based on the facts found when an initial evaluation is disputed following a grant of service connection. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing, together with the average hearing threshold level, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak v. Nicholson, 21 Vet. App. 447 (2007); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examination reports, however, are required to include full descriptions of the functional effects caused by a hearing disability. Martinak, 21 Vet. App. at 455. Other than in exceptional cases of hearing loss, VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In these circumstances, the hearing acuity level will be assigned using either Table VI or Table VIa, whichever yields the higher level. Id. VA will resolve reasonable doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding any material issue. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran was provided a VA audiological examination in March 2012. The audiometric test results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 30 60 65 LEFT 25 50 65 60 The average pure tone threshold for the right ear was 43.75 decibels. The average pure tone threshold for the left ear was 50 decibels. Maryland CNC speech recognition scores were 92 percent for the right ear and 90 percent for the left ear. These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The March 2012 VA examiner opined that the Veteran’s hearing loss impacted the Veteran’s ordinary conditions of daily life because he was unable to hear well. The results of the March 2012 audiometric testing do not support a compensable rating for bilateral hearing and equate to the assignment of Level I hearing loss for the right ear and Level II for the left ear, upon application of Table VI. In February 2013, the Veteran’s hearing was evaluated by a private medical provider. The audiometric test results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 60 65 LEFT 25 55 65 70 The average pure tone threshold for the right ear was 46.25 decibels. The average pure tone threshold for the left ear was 53.75 decibels. Maryland CNC speech recognition scores were 72 percent for the right ear and 88 percent for the left ear. These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The results of the February 2013 audiometric testing do not support a compensable rating for bilateral hearing and equate to the assignment of Level III hearing loss for the right ear and Level II for the left ear, upon application of Table VI. The Veteran’s hearing acuity was also assessed during a VA audiological examination in September 2020. The audiometric testing results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 70 60 LEFT 30 50 70 60 The average pure tone threshold for the right ear was 48.75 decibels. The average pure tone threshold for the left ear was 52.50 decibels. Maryland CNC speech recognition scores were 88 percent for the right ear and 90 percent for the left ear. These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The September 2020 VA examiner opined that the Veteran’s hearing loss impacted the Veteran’s ordinary conditions of daily life because he has difficulty understanding conversations and often asks others to repeat themselves. The results of the September 2020 audiometric testing do not support a compensable rating for bilateral hearing and equate to the assignment of Level II hearing loss for the right ear and Level II for the left ear, upon application of Table VI. The Board acknowledges the Veteran’s reports of difficulty hearing and understanding conversations, as well as asking people to repeat themselves, but this type of impairment is fully contemplated by the schedular rating criteria for bilateral hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Accordingly, entitlement to an initial compensable rating for bilateral hearing loss must be denied. REASONS FOR REMAND 1. Entitlement to an initial disability rating higher than 30 percent prior to January 22, 2020, for CAD, is remanded. Since the August 2020 Board remand, the RO determined that a clear an unmistakable error was made regarding the Veteran’s CAD claim. Accordingly, an October 2020 rating decision reflects that the Veteran was entitled to an earlier effective date for his service-connected CAD, specifically, August 31, 2010. In addition, the Veteran was granted a 100 percent rating for his CAD effective January 22, 2020. Accordingly, the time period on appeal regarding the Veteran’s claim for an increased rating for CAD is now August 31, 2010 to January 21, 2020. The record establishes that the Veteran had a pacemaker installed in April 2011 at McAllen Heart Hospital, however, there have been no attempts to associate the records from McAllen Heart Hospital with the claims file. Thus, the record is unclear as to whether the Veteran’s pacemaker surgery was due to his service-connected CAD. Because April 2011 is now part of the time period on appeal and the question of whether the pacemaker surgery was related to his service-connected CAD impacts the rating assigned for the Veteran’s service-connected CAD, remand is warranted to attempt to associate those records with the claims file. 2. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the rating assigned for the Veteran’s service-connected CAD, and therefore, is also remanded at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Ask the Veteran to identify any private treatment that he may have had for his service-connected CAD, particularly treatment at the McAllen Heart Hospital in 2011. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.