Citation Nr: 21022203 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-24 016A DATE: April 15, 2021 ORDER Entitlement to increased disability ratings for bilateral hearing loss, rated as 10 percent disabling prior to September 3, 2020, and as 20 percent disabling thereafter, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior to September 3, 2020, the Veteran’s bilateral hearing loss manifested in no higher than Level I hearing impairment in the right ear and Level XI hearing impairment in the left ear on authorized VA audiology testing or qualifying compliant audiology testing. 2. For the period from September 3, 2020, onward, the Veteran’s bilateral hearing loss has manifested in no higher than Level III hearing impairment in the right ear and Level XI hearing impairment in the left ear on authorized VA audiology testing or qualifying compliant audiology testing. CONCLUSIONS OF LAW 1. For the period prior to September 3, 2020, the criteria for an initial rating in excess of 10 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100. 2. For the period from September 3, 2020, onward, the criteria for a rating in excess of 20 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to September 1975. These matters come before the Board of Veterans’ Appeals (Board) from an October 2013 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (2019); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2019); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his representative have raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). These issues were previously before the Board in June 2020, at which time they were remanded in order to obtain VA audiogram results dated April 28, 2014; to obtain any other updated VA treatment records; and to schedule the Veteran for an examination to determine the current severity of his bilateral hearing loss. Updated VA treatment records were associated with the claims file in July 2020, and the April 2014 VA audiogram results were associated with the claims file in September 2020. The Veteran was provided with a new VA Hearing Loss and Tinnitus examination in September 2020. Thus, the Board finds that there has been substantial compliance with its previous remand directives as it relates to the issue adjudicated herein. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). The Board acknowledges that additional VA treatment records and VA examinations have been associated with the claims file since the most recent Supplemental Statement of the Case was issued with respect to increased disability ratings for hearing loss in September 2020. This new evidence is relevant to claims of entitlement to service connection for low back sprain and attention deficit disorder, as well as claims of entitlement to increased ratings for vertigo and insomnia, that the Veteran has pursued since the most recent Board Remand. Crucially, however, these additional records do not contain the specialized audiometric measurements relevant to assessing the severity of the Veteran’s service-connected hearing loss. As such, this evidence is not relevant to the claim on appeal, and the Board may adjudicate the claim on the merits at this juncture. On a VA Form 10182 dated March 2021, the Veteran indicated that he was unemployable due to service-connected disabilities. Where a claimant, or the record, raises the question of unemployability due to a disability for which an increased rating is sought, then part of the increased rating claim is an implied claim of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU has been raised by the Veteran and accordingly, the issue has been addressed in the Remand section below. The Veterans seeks entitlement to increased ratings for his service-connected bilateral hearing loss, initially rated as 10 percent disabling under Diagnostic Code 6100. In a September 2020 Rating Decision, the RO increased the Veteran’s disability rating for bilateral hearing loss to 20 percent effective September 3, 2020. As such, the Board will assess the propriety of the 10 percent disability rating assigned prior to September 3, 2020, as well as the 20 percent disability rating assigned since September 3, 2020. Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. An exception to these rules occurs when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, so 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Veteran’s statements describing symptoms and conditions are competent evidence to the extent that one can describe one’s own experiences. However, these statements must be viewed in conjunction with the medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans’ Court.) The Board notes that it has reviewed all of the evidence in the Veteran’s record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record but does not have to discuss each piece of evidence.). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The Veteran’s bilateral hearing loss has been rated under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability ratings for hearing loss 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 disability ratings range from noncompensable 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 1,000, 2,000, 3,000 and 4,000 cycles per second. The Rating Schedule provides a table (Table VI) to determine for rating purposes a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including puretone thresholds and speech discrimination (using the Maryland CNC test). See 38 C.F.R. § 4.85. Examinations will be conducted without the use of hearing aids. The puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. 38 C.F.R. § 4.85. In determining the actual degree of disability, the objective examinations are more probative of the specific degree of the Veteran’s impairment than lay statements. Furthermore, the opinions and observations of the Veteran and other lay individuals alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2015). Where the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be based solely on puretone threshold testing. See 38 C.F.R. § 4.85, Table VIA. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the puretone decibel loss. The percentage rating is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). The provisions of 38 C.F.R. § 4.86(a) provide that 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. Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever result provides the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. If impaired hearing is service-connected in only one ear, in order 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 § 3.383. Here, the Veteran submitted a private audiological evaluation from clinician L. Kier, dated February 2013. However, this evaluation did not employ the Maryland CNC speech discrimination test and therefore cannot be utilized to rate his hearing loss. See 38 C.F.R. § 4.85(a) (an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC)). The Veteran was provided with a VA Hearing Loss and Tinnitus examination in September 2013, at which time the Veteran was diagnosed as having bilateral sensorineural hearing loss. At that time, relevant puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 40 65 60 LEFT 105 105 105 105 105 The Veteran’s average pure tone threshold for the right ear was 46.25 decibels. His average pure tone threshold for the left ear was 105 decibels. His word recognition score (using the Maryland CNC word list) was 96 percent in the right ear and zero percent in the left ear. Applying 38 C.F.R. § 4.85, Table VI, to the September 2013 VA audiology data, the Veteran’s right ear hearing loss was a Level I impairment, while his left ear hearing loss was a Level XI impairment. Applying the hearing levels from Table VI to Table VII, based on the results of the September 2013 examination findings, a 10 percent rating is derived. Significantly, as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more in the left ear, an exceptional pattern of hearing impairment is shown in this report. As such, the Board will consider the Roman numeral designation for hearing impairment under Table VIA, using only the puretone threshold average. However, under Table VIA, the Roman numeral designation for left ear hearing impairment is still XI. As such, a 10 percent rating would still be derived from Table VII. An April 2014 VA Audiology Consult Response indicated that the Veteran underwent another hearing evaluation. The results of the April 2014 hearing evaluation revealed relevant puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 45 55 45 LEFT 105+ 105+ 105+ 105+ 105+ The Veteran’s average pure tone threshold for the right ear was 44 decibels. His average pure tone threshold for the left ear was 105+ decibels. However, his word recognition score was attained using the CID W-22 and NU-6 world lists rather than the Maryland CNC word list. The Board has considered the provisions of 38 C.F.R. § 4.86, and finds that they do not apply to both ears as no exceptional pattern of hearing impairment is shown in the right ear. Neither does the April 2014 report present any other basis for finding that a rating can be assigned without Maryland CNC word recognition testing results. Accordingly, the Board notes that the April 2014 evidence does not provide sufficient information for a determination of a rating assignment. Parenthetically, even if the Board were to consider the Roman numeral designation for hearing impairment under Table VIA for both ears, using only the puretone threshold average, the Veteran’s right ear hearing loss would be a Level II impairment, while his left ear hearing loss would be a Level XI impairment. Applying the hearing levels from Table VIA to Table VII, a 10 percent rating would still be derived. The Veteran submitted another private audiological evaluation conducted by D. Chagoya, AuD, at Hear Again Hearing Aids in Corpus Christi, Texas, in July 2019. However, this evaluation did not employ the Maryland CNC speech discrimination test, instead employing the CID W-22 world list. As such, it cannot be utilized to rate his hearing loss. See 38 C.F.R. § 4.85(a). Most recently, the Veteran was provided with a VA Hearing Loss and Tinnitus examination in September 2020, at which time he was diagnosed as having bilateral sensorineural hearing loss. At that time, relevant puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 55 65 70 LEFT 105 105+ 105+ 105+ 105+ The Veteran’s average pure tone threshold for the right ear was 57.50 decibels. His average pure tone threshold for the left ear was 105 decibels. His word recognition score (using the Maryland CNC word list) was 90 percent in the right ear and zero percent in the left ear. Applying 38 C.F.R. § 4.85, Table VI to the September 2020 VA audiology data, the Veteran’s right ear hearing loss was a Level III impairment, while his left ear hearing loss was a Level XI impairment. Applying the hearing levels from Table VI to Table VII, based on the results of the September 2013 examination findings, a 20 percent rating is derived. Significantly, as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more in the left ear, an exceptional pattern of hearing impairment is shown in this report. As such, the Board will consider the Roman numeral designation for hearing impairment under Table VIA, using only the puretone threshold average. However, under Table VIA, the Roman numeral designation for left ear hearing impairment is still XI. As such, a 20 percent rating would still be derived from Table VII. Given the above, disability rating in excess of 10 percent is not warranted under the rating schedule for the Veteran’s bilateral hearing loss for the period prior to September 3, 2020. A rating in excess of 20 percent is not warranted under the rating schedule for the Veteran’s bilateral hearing loss for the period since September 3, 2020. The qualifying audiometry data of record accords with no ratings in excess of those currently assigned for these periods under Diagnostic Code 6100. The Board notes that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court held that an examining VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The VA examination reports of record include descriptions of the functional effects caused by the Veteran’s hearing loss. For instance, the September 2013 VA examination report indicated that, “he must ask people to repeat to understand, especially in background noise.” Additionally, the September 2020 VA examination report indicated that, “The veteran stated that he has the inability to hear people clearly, and knowing where sounds are coming from in the environment. He stated that he asking them to repeat themselves or clarification. He avoid social situations because of difficulty following conversations in noisy environments. Tendency to pretend when not hearing someone because of the fear of asking them to repeat themselves or clarification.” The Board observes that the Veteran’s diminishment of hearing acuity and speech recognition are contemplated by the schedular rating criteria for hearing loss. Additional references to the Veteran’s hearing loss disability are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s hearing loss disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. None of the other pertinent medical evidence of record presents findings significantly contrary to those in the most detailed evidence discussed above featuring specialized audiometric measurements of the Veteran’s hearing acuity. Nor does any other evidence of record otherwise probatively indicate that the criteria for an increase of the disability ratings for hearing loss are met in this case. Thus, as explained above, the Board’s analysis results in a finding that no increased rating is warranted for the Veteran’s hearing loss in this case. This case presents the Board with a situation in which all of the probative competent audiological evidence shows audiometric data that fail to meet the quantitative criteria for increased ratings. The audiometric reports of record reflect the testing and reporting of trained audiology professionals who are competent to prepare such reports. The Board notes that there is no indication that the audiometric reports of record are anything but reliable. The Board finds that the audiometric reports discussed above are highly probative evidence in evaluating the severity of the Veteran’s hearing loss. The pertinent examination reports discussed above are not contradicted by any other probative evidence (no evidence of record shows audiometric findings meeting the criteria for higher ratings for hearing loss in any portion of the rating period in this appeal). Thus, the Board finds the examination reports to be persuasive in showing that the Veteran’s hearing loss has not met the criteria for further increased ratings during the periods for consideration. The criteria for increased ratings for bilateral hearing loss have not been met. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in connection with the hearing loss disability, beyond those addressed in this decision. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As discussed above, the issue of entitlement to a TDIU has been raised by the record. Unfortunately, the Board finds that additional development is necessary before this claim can be adjudicated on the merits. Specifically, the RO has not sent the Veteran the required VCAA notice correspondence regarding a claim for entitlement to a TDIU. Similarly, a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) are not of record. As such, the RO should send the Veteran a VCAA notice correspondence and forms for his TDIU claim, and request that the Veteran fill out these TDIU forms and submit them back to VA. The matters are REMANDED for the following action: 1. Send the Veteran VCAA notice correspondence for his TDIU claim. This notice letter must include (1) a VA Form 21-8940, and (2) a VA Form 21-4192. Request that the Veteran fill out these TDIU forms and submit them back to VA. 2. After the above development has been completed, adjudicate the TDIU claim remaining on appeal. If the benefit sought is denied, then issue an appropriate Supplemental Statement of the Case and provide the Veteran and his representative with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.