Citation Nr: 21021655 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-54 634 DATE: April 13, 2021 ORDER For the rating period prior to November 16, 2018, a rating in excess of 10 percent for bilateral hearing loss is denied. For the rating period from November 16, 2018 to February 20, 2020, a rating of 60 percent, but no higher, for bilateral hearing loss is granted. For the rating period beginning February 21, 2020, a rating in excess of 60 percent for bilateral hearing loss is denied. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound status is remanded. FINDINGS OF FACT 1. During the rating period prior to November 16, 2018, entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability could not be established with the examination conducted in August 2017 as results were unreliable. 2. Beginning November 16, 2018, the Veteran’s hearing loss disability was found to be profound and was manifested by, at worst, Level VII hearing impairment in the right ear and Level XI hearing impairment in the left ear on qualifying testing adequate for VA rating purposes. CONCLUSIONS OF LAW 1. For the rating period prior to November 16, 2018, the criteria for entitlement to a rating in excess of 10 percent bilateral hearing loss are not met. 38 C.F.R. § 3.655 (2020). 2. For the rating period from November 16, 2018 to February 20, 2020, the criteria for a rating of 60 percent, but no higher, for bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100 (2020). 3. For the rating period beginning February 21, 2020, the criteria for a rating in excess of 60 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable service in the Missouri Army National Guard, with a period of active duty for training from September 1978 to February 1979. The Veteran also served from January 1980 to December 1980, but was discharged from service under “other than honorable conditions.” This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board remanded the claims for (1) an increased rating for left ear hearing loss; (2) service connection claim for headaches; (3) service connection claim for balance conditions; (5) service connection for right ear hearing loss; and (6) entitlement to SMC. In a June 2020 rating decision, the RO granted service connection for both a balance condition and headaches. Additionally, the Veteran’s hearing loss disability was recharacterized as “bilateral hearing loss (previously left ear hearing loss),” essentially granting service connection for right ear hearing loss. Accordingly, those issues have been resolved in the Veteran’s favor and are no longer before the Board for consideration. As it pertains to the increased rating claim for hearing loss, the Board remanded the claim in January 2020 because the August 2017 Statement of the Case (pertaining to the hearing loss rating claim) had been returned to VA as undeliverable. Therefore, the Board found that there was no indication that the RO apprised the Veteran of its issuance of the second SOC. The claim was remanded in order to allow the RO to fulfil its duty to notify and assist, and to reissue the SOC for the Veteran’s hearing loss increased rating claim, so as to afford the Veteran an opportunity to timely respond and/or appeal this issue. The Board notes that following the January 2020 remand, the RO issued a supplemental statement of the case (SSOC) instead of providing notice to the Veteran of the August 2017 SOC. The United States Court of Appeals for Veterans Claims (Court) has held that the filing of a substantive appeal is not a jurisdictional requirement, that the filing of a timely substantive appeal may be waived, and that where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557-58 (2003); see also Archbold v. Brown, 9 Vet. App. 124, 132 (1996). In this case, the RO has taken action to indicate that such filing has been waived by providing the SSOC. Moreover, the Veteran’s representative has submitted argument following the June 2020 SSOC, further indicating the Veteran’s impression that an appeal has been perfected for this issue. Thus, the Board finds that this issue is currently on appeal. Moreover, the Board is granting a 60 percent rating for hearing loss beginning November 16, 2018, essentially as specifically requested by the Veteran. See March 2021 correspondence from representative. As such, there is no prejudice to the Veteran in adjudicating the claim at this time. Further, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The medical evidence of record indicates that the Veteran’s disabilities may impact his ability to obtain or maintain substantially gainful employment. In light of the Court’s holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue on appeal. Laws and Analysis for Bilateral Hearing Loss Disability Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In this case, the Board has considered all the evidence of record, lay and medical, as it bears on the issue of rating. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation). When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. 38 C.F.R. § 4.85. 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. 38 C.F.R. § 4.86 (a). Each ear is evaluated separately. Id. When the puretone 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 from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86 (b). That numeral is then elevated to the next higher Roman numeral. Id. Each ear is evaluated separately. Id. The Veteran is currently in receipt of a 10 percent disability rating under Diagnostic Code 6100 for bilateral hearing loss for the period prior to February 21, 2020. He is in receipt of a 60 percent rating for bilateral hearing loss beginning February 21, 2020. The Veteran maintains that his bilateral hearing loss disability warrants a 60 percent evaluation beginning November 15, 2018. See March 2021 correspondence from representative. As it pertains to the rating period prior to November 16, 2018, the evidence indicates that the Veteran was scheduled for a VA audiological examination in May 2015, but failed to report to the evaluation. The Veteran was afforded another VA examination in August 2017. The report indicates that test results were found by the examiner to be “inconsistent and do not appear to reflect the Veteran’s maximal effort.” According to the examiner, previous test results indicated that the Veteran did have some hearing loss, but not to the degree that he was admitting. The examiner further indicated that there was “poor interest reliability across today’s examination.” Test results were noted to be considered “invalid and unreliable.” When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination; and the examination was scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. The Board also notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The evidence prior to November 2018 does not include a reliable audiological examination as required to assess the severity of the Veteran’s hearing loss disability. As such, a rating in excess of 10 percent is not warranted for the appeal period to November 16, 2018. As it pertains to the rating period from November 16, 2018 to February 20, 2020, the Board finds that the evidence is at least in equipoise as to whether a 60 percent rating for bilateral hearing loss is more nearly approximated. In this regard, the evidence includes a private audiological report and statement from Dr. Manthei, dated November 16, 2018. At that time, Dr. Manthei indicated that the Veteran had “profound” mixed hearing loss in the left ear and “moderate” conductive hearing loss in the right ear. It was further noted that the Veteran had “essentially no word recognition in the left ear” and would not benefit from a hearing aid. Dr. Manthei’s evaluation did not report speech discrimination scores using the Maryland CNC test; however, puretone thresholds at the test frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 30, 40, 45, and 40, respectively. In the left ear, thresholds at the test frequencies of 1000, 2000, 3000, and 4000 Hertz were 110, 120, 120, and 120, respectively. The evidence also includes a February 2020 VA audiological examination. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 80 85 85 LEFT 105+ 105+ 105+ 105+ Speech discrimination scores of 96 percent in the right ear and 68 percent in the left ear were noted. The results of the February 2020 VA examination reveal that the Veteran has an exceptional pattern of hearing impairment in both ears. Specifically, puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) was 55 decibels or more. As such, the Roman numeral designation from Table VIA would yield a numeric designation of (VII) in the right ear (79 decibel puretone threshold average) and numeric designation of (XI) in the left ear (105+ decibel puretone threshold average) in the left ear. The numeric designation for the right ear (VII) along with the numeric designation for the left ear (XI), entered into Table VII, produce a 60 percent evaluation for hearing impairment. The Board finds that the February 2020 audiometric findings are consistent with the report and statement provided by Dr. Manthei in November 2018, which indicated that the Veteran had “profound” mixed hearing loss with essentially no word recognition in the left ear and “moderate” conductive loss in the right ear. Further, the Board finds it unlikely that the Veteran’s hearing loss disability suddenly worsened on the day of the February 2020 VA examination. For these reasons, the Board finds that, for the rating period from November 16, 2018 to February 20, 2020, a 60 percent rating for hearing loss is warranted. The Board further finds that a rating in excess of 60 percent for the entire rating period beginning November 16, 2018 is not warranted. There are no other audiological testing results of record that would result in a rating in excess of 60 percent. Thus, based upon the mechanical application of the audiological results to the rating criteria, at no point during the period beginning November 16, 2018, has the Veteran’s hearing loss warranted a rating in excess of 60 percent. REASONS FOR REMAND TDIU and SMC As indicated, a claim for a TDIU has been raised by the record. The Veteran has not been provided with the notice requirement for a TDIU claim. Therefore, on remand, the RO should send the Veteran proper notice, afford him the opportunity to file a formal claim for TDIU, and then adjudicate this matter in the first instance to avoid any prejudice to him. Additionally, remand is required to assist the Board in determining whether the Veteran is unemployable solely due to one service-connected disability for purposes of determining whether entitlement to a SMC under 38 U.S.C. § 1114 (s), 38 C.F.R S 3.350(i) is warranted. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (where the Court held that 38 U.S.C. § 1114 (s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating). For example, a March 2020 VA headaches examination report indicated that the Veteran’s headache disability impacted his ability to work in that the Veteran “can not concentrate at work when having bouts of headache. Can not drive when having headache followed by dizziness.” Thus, the possibility has been raised that an award of TDIU could be based on a single disability, e.g., headaches or balance condition, and the Veteran could have separate disabilities independently rated as 60 percent or more (e.g., hearing loss), thus warranting SMC at the housebound rate. On remand, the Veteran shall be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. This form will provide VA with information relevant to his work history, education, training, and the Veteran’s assertions regarding which disability or disabilities render him unemployable. The matters are REMANDED for the following actions: 1. Send the Veteran the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete and submit VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Then, readjudicate the claims for (a) entitlement to a TDIU (to include based on a single disability or combination of disabilities); and (b) entitlement to SMC based on the Veteran’s need for aid and attendance or housebound status. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.