Citation Nr: 21021871 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-55 840 DATE: April 14, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for restrictive lung disease with asbestosis is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s hearing loss has been manifested by no worse than Level VI and Level V hearing impairment in the right and left ears, respectively. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 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 August 1961 to August 1965. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent disability rating for the Veteran’s hearing loss and a 10 percent disability rating for restrictive lung disease with asbestosis. The Board remanded the appeal in January 2020. On a November 2016 VA Form 9, the Veteran requested a Board hearing prior to adjudication. The Board scheduled the Veteran for August 2019 hearing and notified the Veteran in July 2019, but the Veteran failed to report for the hearing. Notice of the hearing was sent to his last known address, and the Veteran’s claims file contains no returned mail or address change request since the notification was sent. To date, he has not shown good cause for his “no show,” and has not requested another hearing. Accordingly, the Board considers the hearing request to be withdrawn. 38 C.F.R. § 20.704(d). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss is denied. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. See 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, “staged” ratings may be assigned for such different periods of time. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. In evaluating hearing loss impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss evaluations range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests, in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. In cases of exceptional hearing impairment, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined, separately for each ear, from either Table VI or Table VIA (“Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average”), whichever results in the higher numeral. 38 C.F.R. § 4.86(a). The provisions for exceptional patterns of hearing impairment for using Table VIA apply in the Veteran’s case but do not result in higher numerals compared to Table VI, as further detailed below. Table VII, “Percentage Evaluation for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). The Veteran contends, on an April 2015 claim form, that his hearing loss warrants an increased rating. The Veteran was afforded VA examinations with puretone audiometry measurements and Maryland CNC Test results in April 2015 and another one in November 2020, in accordance with the Board’s January 2020 remand instructions. In April 2015, the examiner reported the following puretone threshold measurements in decibels (dB): HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 65 60 75 85 71.25 LEFT 75 60 60 75 67.5 The average puretone threshold was 71.25 dB in the right ear and 67.5 dB in the left ear. Speech discrimination using the Maryland CNC Test revealed scores of 80 percent in the right ear and 86 percent in the left ear. Given that the measurements of puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) were 55 dB or more, Table VIA may be used to determine numeric designations based only on puretone threshold averages. See 38 C.F.R. § 4.86. According to Table VIA, the Veteran’s puretone threshold averages correspond to the numeric designations of VI in the right ear and V in the left ear. Using Table VII to determine the percentage evaluation for hearing impairment with these numeric designations results in a 20 percent rating for the Veteran’s hearing loss. Because using Table VI results in lower Roman numerals for the Veteran’s hearing impairment in both ears (IV in the right ear and III in the left ear), Table VIA will be used here to determine the disability rating, instead of Table VI, in order to be more favorable to the Veteran. See 38 C.F.R. § 4.86. In November 2020, the examiner reported the following puretone threshold measurements in dB: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 55 60 70 75 65 LEFT 65 50 60 65 60 The average puretone threshold was 65 dB in the right ear and 60 dB in the left ear. Speech discrimination using the Maryland CNC Test revealed scores of 72 percent in the right ear and 68 percent in the left ear. Given that the measurements of puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) were 55 dB or more in the right ear, Table VIA may be used to determine numeric designations based only on puretone threshold averages for the right ear. See 38 C.F.R. § 4.86. According to Table VIA, the Veteran’s puretone threshold averages correspond to the numeric designation of V in the right ear. Because using Table VI results in the same Roman numeral of V for the Veteran’s right ear, it does not matter if Table VI or Table VIA is used for the right ear. See 38 C.F.R. § 4.86. Table VI must be used for the left ear because, unlike the right ear, no exceptional pattern of hearing impairment was shown. Using Table VI for the left ear results in a numeric designation of V. See 38 C.F.R. § 4.85(b). Using Table VII to determine the percentage evaluation for hearing impairment with the numeric designation of V for both ears results in a 20 percent rating for the Veteran’s hearing loss. See 38 C.F.R. § 4.85(e). The Board notes that the Veteran’s VA treatment records show complaints of hearing loss throughout the years, but none of these records include speech discrimination or puretone threshold measurements. The evidentiary record does not reasonably raise the prospect that the Veteran’s disability is not and cannot be adequately rated under the rating schedule. Despite the Veteran’s subjective complaints of worsening hearing loss, after mechanical application of the reported speech discrimination scores and the audiometric results showing puretone threshold averages to the corresponding to numeric designations for each ear, the Board finds that the 20 percent rating, and no more, for hearing loss is appropriate here. See 38 C.F.R. § 4.85, 4.86, Table VI, Table VIA, Table VII. Therefore, because the preponderance of evidence weighs against the Veteran’s claim, a rating in excess of 20 percent for hearing loss is not warranted, and the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for restrictive lung disease with asbestosis is remanded. On an April 2015 claim form, the Veteran contends that an increased rating for asbestosis is warranted. At the outset, the Board notes that the Veteran’s respiratory disability has been rated under Diagnostic Code (DC) 6833, which provides for a 10 percent rating when the FVC is 75- to 80-percent predicted or DLCO (SB) is 66- to 88-percent predicted. The criteria for the next higher rating of 30 percent requires lower FVC or DLCO (SB) values, i.e., FVC of 65- to 74-percent predicted or DLCO (SB) of 56- to 65-percent predicted. VA afforded the Veteran examinations in May 2015 and another one in January 2021, after the Board’s January 2020 remand. Both examination reports include FVC values. The May 2015 report included measurements from a May 2015 PFT that showed 76 percent predicted for FVC pre- and post-bronchodilator. The Board notes that the May 2015 examination report apparently mixed up the FVC and FEV1 values from the May 2015 PFT, and thus, the May 2015 examination report incorrectly shows that the FVC as 78 percent instead of 76 percent. The January 2021 report included measurements from a May 2020 PFT that showed 66 percent predicted for FVC pre-bronchodilator and 69 percent predicted post-bronchodilator. The January 2021 report also includes a DLCO value reported as 34 precent. At first glance, these relatively low values seem to indicate that a rating in excess of 10 percent is warranted for the Veteran’s asbestosis according the DC 6833 criteria. However, the examiner explained that the Veteran has multiple nonservice-connected conditions (to include obstructive sleep apnea, borderline pulmonary hypertension, COPD, and obesity causing hypoventilation syndrome) which are significant enough to overshadow the Veteran’s currently claimed condition of restrictive lung disease. The examiner stated that the Veteran’s most recent pulmonary studies in May 2020 show minor restrictive defect, and more significant obstruction and oxygen diffusing abnormality, which is most likely secondary to his COPD. Nevertheless, the January 2021 examiner’s opinion does not preclude finding that the Veteran’s service-connected respiratory disability has increased in severity to a degree, however small, that could possibly warrant a higher rating. Therefore, the January 2021 opinion is inadequate for the Board to adjudicate the claim, and the Board thus finds that remand is warranted for an addendum opinion, and examination with PFT if deemed necessary, to determine if the Veteran’s service-connected respiratory disability has increased to a degree such that a higher rating should be assigned, despite the effects of nonservice-connected conditions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from November 2020 to the present. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner (for respiratory disability) to review the Veteran’s file. The necessity of in-person examination and tests such as a PFT is left to the discretion of the examiner. The examiner should describe the severity of the Veteran’s service-connected respiratory disability, currently characterized as restrictive lung disease with asbestosis, to include indicating, to the extent possible, the effects of such disability on FVC and DLCO (SB) measurements noted in the record, apart from the effects of nonservice-connected conditions (such as obstructive sleep apnea, borderline pulmonary hypertension, COPD, and obesity causing hypoventilation syndrome). See May 2015 and May 2020 PFTs. The examiner should provide a complete rationale for any conclusions made, to include explaining why any of the information above cannot be provided if it is so determined. The examiner should consider all medical and lay evidence of record. 3. After the above development and any other development deemed necessary is completed, readjudicate the claim. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.