Citation Nr: 21013318 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-28 807 DATE: March 9, 2021 ORDER A compensable rating for left ear hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s left ear hearing loss was manifested by hearing acuity of no worse than Level III hearing impairment. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Subsequently, in February 2020, the Board remanded for further development. In accordance with these remand directives, updated VA treatment records and a new VA audio examination were obtained. As such, the Board finds substantial compliance regarding the hearing loss issue, but the TDIU matter will be addressed in the remand section below. The 2020 Board remand included the issue of service connection for hypertension. While in remand status, an August 2020 rating decision granted service connection for this disability; therefore, it is no longer in appellate status as part of this appeal. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, 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. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Entitlement to a compensable rating for left ear hearing loss The Veteran contends that his left ear hearing loss disability is severe enough to warrant a compensable disability rating. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). This is the case here, as the Veteran’s right ear is not service-connected, so it will be assigned a Roman Numeral designation of I to assess via Table VII. Turning to the evidence of record, a January 2014 VA examination reveals that the Veteran reported that he had trouble understanding what people were saying, especially when there was background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 35 40 45 39 92% LEFT 45 45 60 65 54 86% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A November 2016 VA examination reveals that the Veteran continued to report that he had trouble understanding people when there was background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007).   The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: November 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 50 60 70 54 88% LEFT 50 60 90 80 70 84% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A March 2020 VA examination reveals that the Veteran reported that he could not use the phone with his left ear and he could not hear well unless he was facing the speaker. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: March 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 35 45 55 44 88% LEFT 65 45 70 85 66 84% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s left ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, to include the Veteran’s reports of trouble understanding people when there was background noise and not being able to use the phone with his left ear. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities is remanded. The Veteran asserts that his service-connected disabilities have rendered him unemployable and the evidence shows he last worked in October 2006. See 03/08/2013 VA Form 21-8940; 05/12/2017 Medical Treatment Records-Furnished by SSA. The Veteran was granted service connection for hypertension during the appeal period, but he still does not meet the schedular percentage threshold for consideration of a TDIU per 38C.F.R. §4.16(a). Even if the percentage requirements for a TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis under 38 C.F.R. § 4.16(b) but the Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) and, thus, the TDIU claim, on an extraschedular basis, was remanded to the RO for referral to the Director of Compensation Service for consideration of an extraschedular TDIU rating. However, after developing the other claims, the RO simply denied the claim without referral to the Director, Compensation Service, per the 2020 Board remand directives. See 2/21/2020 Board Decision, at 11; 11/03/2020 Appellate Brief, at 2. Without substantial compliance, the RO is to refer the TDIU matter to the Director of Compensation Service for extraschedular consideration, in compliance with the prior remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). (CONTINUED ON THE NEXT PAGE)   This matter is REMANDED for the following action: Refer the Veteran’s TDIU matter to VA's Director of Compensation and Pension for extraschedular consideration, pursuant to 38 C.F.R. § 4.16(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.