Citation Nr: 21021308 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-29 334 DATE: April 12, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss before January 29, 2020 is denied. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from January 29, 2020 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Before January 29, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. 2. Beginning January 29, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level VII in the right ear and no worse than Level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss before January 29, 2020, 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 (DC) 6100. 2. The criteria for a rating in excess of 30 percent for bilateral hearing loss as of January 29, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to April 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the appeal period, the Veteran submitted a formal application for a TDIU where he indicated that his service-connected disabilities, including his hearing loss, preclude employability. Accordingly, the issue of entitlement to a TDIU has been added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (per curiam). In February 2019, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran’s claims file. In June 2019 and October 2020, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. 1. Entitlement to a compensable disability rating for bilateral hearing loss before January 29, 2020 is denied. 2. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from January 29, 2020 is denied. Hearing loss is rated “by a mechanical application of the rating schedule.” Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To obtain a rating, the Veteran must undergo a battery of purely objective hearing tests from a state-licensed audiologist. 38 C.F.R. § 4.85. Those tests result in numbers representing the Veteran’s objective hearing loss, which are then plugged into tables in VA’s regulation to provide a rating percentage under Diagnostic Code (DC) 6100. In July 2020, the RO increased the Veteran’s disability rating to 30 percent, effective January 29, 2020. This split the Veteran’s hearing loss rating into two stages. Thus, the issue on appeal is twofold: whether a compensable rating is warranted before January 29, 2020 (the first stage) and whether a higher rating is warranted from January 29, 2020 (the second stage). During the first stage of the appeal period, the Veteran reported to an examination to determine the current nature and severity of his hearing loss. As part of his examination, he underwent an audiometric test. In May 2012, his Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 20 45 55 36 92 LEFT 20 20 35 55 33 94 Functionally, the Veteran reported that his hearing loss makes it difficult to understand people, especially if there is background noise and that he is constantly asking people to repeat themselves. He reported much the same in a March 2013 Audiology Note. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). In addition to the May 2012 VA examination, the Veteran also underwent audiometric testing at his local VA medical center in March 2013 and March 2016. However, the results are not valid for rating purposes because the VA audiologist used the Northwestern University Auditory Test Number 6 (NU-6) word list instead of the Maryland CNC. By regulation, an examination for hearing impairment for VA purposes “must include a controlled speech discrimination test (Maryland CNC).” 38 C.F.R. § 4.85(a). “There is no disput[ing] that § 4.85(a) . . . requires use of the Maryland CNC test to determine the degree of a veteran’s hearing loss, unless the examiner certifies that use of the test is not appropriate.” Swain v. McDonald, 27 Vet. App. 219, 222 (2015). Here, neither audiologist indicated that the use of the test is not appropriate. Instead, both audiologists noted that the testing results were not adequate for rating purposes. With that in mind, the Board finds the criteria for a compensable rating not met. Under Table VI, the May 2012 examination results yield a numeric designation of Level I in the right ear and Level I in the left ear. Combining the two using Table VII results in a noncompensable percent disability rating. Lastly, no exceptional pattern of hearing impairment is shown. During the second stage of the appeal period, the Veteran reported to an examination in February 2020. The examiner recorded the following objective findings: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 70 90 95 78 72 LEFT 50 70 80 95 74 76 At the examination, the Veteran advised that his hearing loss impacts the ordinary conditions of his daily life, including ability to work. Specifically, the Veteran described difficulty hearing and understanding speech. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 455-56. There are no other audiometric findings of record during this stage of the appeal. Accordingly, the Board finds that a rating in excess of 30 percent not warranted. Mechanically applying the Veteran’s examination findings yield a numeric designation of VI in the right ear and V in the left ear under Table VI. However, hearing loss is considered in an exceptional pattern when “the puretone thresholds 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). Here, the puretone threshold results for the Veteran’s right ear satisfy this definition. In that case, “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.” Id. Under Table VIa, an average puretone threshold of 78 for the right ear corresponds to a numeric rating of VII—a higher numeral than the Veteran’s Table VI rating. Plugging VII for the right ear and V for the left ear into Table VII equates to a 30 percent disability rating. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s testimony at his hearing that his disability causes him sometimes to miss a word or part of a sentence. When that happens, he’ll fill in a word, and that can result in miscommunication. The Veteran is competent to report his experienced symptoms, and the Board in no way discounts his testimony regarding his hearing difficulty. However, hearing loss is rated by the mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. at 349. Accordingly, the Board finds the most probative evidence of record is against assigning a compensable rating before January 29, 2020, or a rating in excess of 30 percent after that. The Board has considered the doctrine of reasonable doubt, but, 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, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran is currently in receipt of a 70 percent combined rating for, among other things, posttraumatic stress disorder (PTSD) with depression (50 percent). During the appeal period, he reported to two mental health examinations. Neither examiner diagnosed the Veteran with PTSD. The first diagnosed the Veteran with an adjustment disorder with mixed anxiety and depressed mood (in partial remission). And the second diagnosed the Veteran with other specified bipolar and related disorder. Without a mental health examination addressing the nature and severity of the Veteran’s PTSD with depression, the Board cannot make a fully-informed decision on his TDIU claim. For this reason, the case must be remanded to obtain an examination to determine the Veteran’s PTSD-related symptoms and whether they can be differentiated from his nonservice-connected mental health conditions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician regarding the current severity of his PTSD with depression. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of the disability on employment. The examiner should identify all limitations or functional impairment caused solely by PTSD with depression. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.