Citation Nr: 21013752 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-10 971 DATE: March 10, 2021 ORDER Entitlement to a rating in excess of 20 percent for bilateral hearing loss prior to March 9, 2017 is denied. REMAND Entitlement to a rating in excess of 50 percent for bilateral hearing loss from March 9, 2017 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level VI in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for bilateral hearing loss have not been 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 in the Special Philippine Scouts from May 1946 to March 1949, to include service during World War II. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), that awarded service connection for bilateral hearing loss and assigned a 20 percent rating for that disability, effective September 27, 2013 (the date his claim for service connection was received). These claims were previously before the Board in December 2016 for additional development, during which the RO issued an April 2017 rating decision awarding an increased 50 percent rating for the Veteran’s bilateral hearing loss, effective March 9, 2017. These matters were remanded again in August 2017 for further development. These matters have since returned to the Board for further appellate review. In a December 2020 supplemental statement of the case (SSOC), the RO included an issue regarding entitlement to an increased rating for bilateral hearing loss prior to September 27, 2013, essentially raising an issue regarding the propriety of the effective date of the award of service connection for bilateral hearing loss. However, the Veteran did not contest the effective date for the award of service connection in his April 2014 notice of disagreement with the March 2014 rating decision that awarded service connection. It also was not included as an issue in the December 2014 statement of the case and the Veteran did not indicate disagreement with it in his March 2015 VA Form 9, Substantive Appeal, or in any other written statement that could have been construed as a timely notice of disagreement with the March 2014 rating decision. Therefore, although the RO included this issue in the December 2020 SSOC, the Board does not have jurisdiction to address the issue, and it will not be addressed further.   Entitlement to a rating in excess of 20 percent for bilateral hearing loss prior to March 9, 2017 is denied. The Veteran contends that he is entitled to a higher rating for bilateral hearing loss. In its August 2017 remand, the Board instructed the RO to contact both EarTech and the Hearing and Aural Rehabilitation Center, Inc. to confirm whether either used the Maryland CNC test in audiometric testing. The record reflects that the RO sent clarification letters to both EarTech and the Hearing and Aural Rehabilitation Center, Inc. on October 23, 2020 and November 19, 2020 regarding whether the Maryland CNC was used in audiometric testing completed on the Veteran but received no replies. The Board finds the RO has substantially complied with its August 2017 remand instructions and has satisfied VA’s duty to assist in attempting to obtain the requested information. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). 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). Private audiometry was completed by EarTech in September 2013; however, the audiometry report does not reflect pure tone thresholds at 3000 Hertz. Additionally, as indicated above, it is unclear whether speech discrimination testing was done using the Maryland CNC Word List. Therefore, this audiometry is inadequate for evaluation purposes. The Veteran underwent a VA examination in March 2014. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 70 70 85 69 N/A LEFT 55 75 70 80 70 N/A The examiner noted that Maryland CNC testing was not appropriate for this Veteran due to “language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate.” The Veteran submitted a May 2016 private audiology report from Hearing and Aural Rehabilitation Center, Inc. However, this audiology report shows the Veteran did not provide responses for any of the tested frequencies, and therefore cannot be used to determine a rating for his bilateral hearing loss. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the Veteran’s left ear. Additionally, Maryland CNC testing was inappropriate for the Veteran. Because the March 2014 examiner explained why the Maryland CNC test was inappropriate, use of Table VIA is appropriate. 38 C.F.R. §§ 4.85, 4.86. Applying the results to Table VIA yields Level V in the right ear and level VI in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. Based on the evidence above, a rating in excess of 20 percent prior to March 9, 2017 for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, such as statements that the Veteran believes he is almost totally deaf. 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 20 percent prior to March 9, 2017 for 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 AND BASES FOR REMAND 1. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from March 9, 2017 is remanded. 2. Entitlement to TDIU is remanded. In a January 2021 written statement, the Veteran said that he now has “total hearing loss impairment” and requested a new VA examination. This statement indicates the Veteran’s hearing loss has worsened since his last VA examination, which was in March 2017. As such, the Board finds that a new VA examination is needed to determine the current severity of the Veteran’s bilateral hearing loss. The TDIU claim is intertwined with the above-remanded bilateral hearing loss claim because if the Veteran’s rating for bilateral hearing loss increases, he may be eligible for TDIU on a schedular basis. Therefore, it must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these issues are REMANDED for the following actions: Schedule the Veteran for an in-person VA audiological examination with a qualified examiner in order to determine the current severity of his bilateral hearing loss. The claims folder must be made available and be reviewed by the examiner in conjunction with the examination. The examiner should attempt to obtain useable Maryland CNC speech discrimination testing results to the best of their ability. If the examiner cannot obtain usable Maryland CNC results, an explanation must be provided. The examiner should also address the impact the Veteran’s bilateral hearing loss has on his activities of daily living and occupational functioning. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could   not be given due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.