Citation Nr: 21023580 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-26 910 DATE: April 21, 2021 ORDER Prior to July 2, 2019, entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. From July 2, 2019, entitlement to a rating in excess of 30 percent for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 20 percent prior to June 24, 2019, and in excess of 40 percent thereafter, for degenerative joint disease, lumbar spine is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to July 2, 2019, the Veteran’s bilateral hearing loss was manifested by no worse than level III hearing loss in the right ear, and no worse than level IV hearing loss in the left ear. 2. As of July 2, 2019, the Veteran’s bilateral hearing loss was manifested by no worse than level VI hearing loss in the right ear, and no worse than level VI hearing loss in the left ear. CONCLUSIONS OF LAW 1. Prior to July 2, 2019, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. From July 2, 2019, the criteria for a rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to July 1984 and from February 2003 to December 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, these matters were previously before the Board in October 2018, when they were remanded for additional development. During the pendency of the appeal, a July 2020 rating decision granted an increased 30 percent rating for the Veteran’s bilateral hearing loss, effective July 2, 2019. The July 2020 rating decision also granted an increased 40 percent rating for the Veteran’s service-connected degenerative joint disease, lumbar spine, effective June 24, 2019. See July 2020 Rating Decision – Narrative. As these ratings are not the maximum allowable, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Lastly, in his June 2016 substantive appeal, the Veteran indicated that he was seeking service connection for posttraumatic stress disorder (PTSD), in addition to the issues listed on the April 2016 statement of the case (SOC). See June 2016 VA Form 9; April 2016 SOC. However, VA’s adjudication regulations require that all claims be filed on a standard form. See 38 C.F.R. § 3.151. Thus, as the Veteran did not include the additional claims of entitlement on his initial claim, and did not subsequently submit the claims on the prescribed form, a claim for these benefits has not been received. Accordingly, the only issues on appeal are entitlement to a rating in excess of 10 percent prior to July 2, 2019, and in excess of 30 percent thereafter, for bilateral hearing loss and entitlement to a rating in excess of 20 percent prior to June 24, 2019, and in excess of 40 percent thereafter, for a lumbar spine disability. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Prior to July 2, 2019, entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. 2. From July 2, 2019, entitlement to a rating in excess of 30 percent for bilateral hearing loss is denied. As an initial matter, the Veteran filed his claim for entitlement to a rating in excess of 10 percent for bilateral hearing loss on April 22, 2011. See March 2011 VA Form 21-4138 Statement in Support of Claim. During the pendency of the appeal, a July 2020 rating decision granted an increased 30 percent rating for bilateral hearing loss, effective July 2, 2019. See July 2020 Rating Decision – Narrative. Evaluations of defective hearing range from noncompensable to 100 percent for service-connected hearing loss. These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech recognition testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. The regulations provide that in cases of exceptional hearing loss, 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 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. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that 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 for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The assignment of disability ratings for hearing impairment are arrived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Turning to the evidence of record, the Veteran’s wife submitted a functional report, dated in December 2010, in connection with the Veteran’s claim for Social Security Administration (SSA) disability benefits. In the report, the Veteran’s wife stated that the Veteran had been wearing hearing aids constantly since 2005. See June 2019 Medical Treatment Records – Furnished by SSA. In February 2011, the Veteran endorsed a hearing deficit and requested new hearing aids due to increased noise and boom sounds. On physical examination, the examiner reported that the Veteran’s tympanic membranes were intact. However, no audiometric testing was conducted at that time. See June 2020 CAPRI. In a July 2011 statement, the Veteran indicated that his service-connected bilateral hearing loss had worsened since it was last evaluated. In this regard, the Veteran stated that he was hardly able to hear due to the ringing in his ears. See July 2011 VA Form 21-4138 Statement in Support of Claim; July 2011 VA Form 21-4142 Authorization for Release of Information. The Veteran underwent a VA examination in April 2012. The examiner noted the following audiometric testing results: HERTZ 1000 2000 3000 4000 Right 35 40 55 55 Left 45 65 65 65 The average puretone threshold was 46 decibels in the right ear and 60 decibels in the left ear. Speech recognition scores were 80 percent bilaterally. During the examination, the Veteran reported difficulty understanding speech, especially in noise, and stated that he had to read lips. See April 2012 VA examination. In May 2012, the Veteran was referred for an audiology consultation to obtain new hearing aids. In this regard, the examiner noted that the Veteran had been issued hearing aids five years before and found no significant changes in the Veteran’s medical history since last issue. In addition, the examiner found that, as the Veteran underwent audiometric testing in connection with the April 2012 VA examination, new testing was not needed at that time. See June 2020 CAPRI. In his August 2013 notice of disagreement (NOD), the Veteran reported that his hearing was approximately 80 percent gone. In the June 2016 substantive appeal, the Veteran stated that he could hardly hear. He also endorsed tinnitus, which persisted all day and all night. See June 2016 VA Form 9. An audiology note, dated in May 2019, shows that the Veteran was seen for a hearing aid evaluation. The Veteran reported longstanding bilateral tinnitus and stated that he had noticed a “sloshing sound” in his left ear when he shook his head during the preceding year. After performing an audiometric assessment, the examiner reported that the Veteran’s external auditory canals were clear with intact tympanic membranes bilaterally. The examiner further noted that puretone air conduction thresholds were measured and were within 10 decibels of the thresholds recorded during the April 2012 VA examination, with the exception of a 15 decibel decrease at 1000 Hz and 2000 Hz in the right ear and a 15 decibel decrease at 1000 Hz. However, there is no indication the Veteran underwent speech recognition testing at that time. The examiner determined that the overall reliability of testing was good and recommended binaural hearing aids. See June 2020 CAPRI. The Veteran underwent a VA examination in July 2019. The examiner noted the following audiometric testing results: HERTZ 1000 2000 3000 4000 Right 60 75 80 80 Left 65 80 80 80 The average puretone threshold were 74 decibels in the right ear and 76 decibels in the left ear. Speech recognition scores were 96 percent in the right ear and 68 percent for the left ear. During the examination, the Veteran stated that his bilateral hearing loss and tinnitus made him want to isolate himself because he would become distracted and found it hard to understand others. See July 2019 C&P examination. The Board will first address the period on appeal prior to July 2, 2019. In this regard, and after a review of the evidence of record, the Board finds that a disability rating in excess of 10 percent is not warranted. As an initial matter, the Board finds that the May 2019 VA treatment audiological examination report lacks probative value because it does not include any speech recognition test results, which is a requirement for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85(a). As a result, a Roman numeral cannot be designated for hearing impairment of the right and left ears pursuant to Table VI. Table VIA, which provides a Roman numeral level based on puretone thresholds only, without inclusion of speech recognition scores, may only be used when the examiner certifies that use of the speech recognition test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or when an exceptional pattern of hearing loss is present. 38 C.F.R. § 4.85(c). As stated above, during the April 2012 VA examination, the Veteran exhibited an average puretone threshold of 46 decibels and an 80 percent speech recognition score in the right ear and an average puretone threshold of 60 decibels and an 80 percent speech recognition score in his left ear. See April 2012 VA examination. Based on these findings, using Table VI, the Veteran has Level III hearing in the right ear and Level IV hearing in the left ear. Applying these results to Table VII indicates that a 10 percent rating is warranted. The Board further notes that no exceptional pattern of hearing loss was demonstrated during the initial period on appeal. In this regard, the Board emphasizes that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Therefore, a rating in excess of 10 percent rating is not warranted prior to July 2, 2019 as the currently assigned rating accurately reflects the Veteran’s disability picture as contemplated under the VA rating criteria. Turning to the period on appeal as of July 2, 2019, the Board finds that a disability rating in excess of 30 percent is not warranted during the aforementioned period. In this regard, during the July 2019 VA examination, the Veteran exhibited an average puretone threshold of 74 decibels and a 96 percent speech recognition score in the right ear and an average puretone threshold of 76 decibels and a 68 percent speech recognition score in his left ear. See July 2019 C&P examination. Based on these findings, using Table VI, the Veteran has Level II hearing in the right ear and Level VI hearing in the left ear. Applying these results to Table VII indicates that a 10 percent rating is warranted. However, as all audiometric readings were 55 decibels or more, the Board must also apply the July 2019 audiometric testing results to Table VIA. In this regard, when the puretone threshold averages are considered using Table VIA, the Veteran has Level VI hearing loss bilaterally. Applying these results to Table VII, a 30 percent rating is warranted. C.F.R. § 4.86(a). The Board acknowledges, and has considered, the Veteran’s description of the problems caused by his hearing difficulties. Martinak v. Nicholson, 21 Vet. App. 447 (2007). While the Board acknowledges that the Veteran’s bilateral hearing loss offers some challenges in communication, his VA hearing evaluations simply do not demonstrate his hearing loss manifested to a level in excess of 10 percent prior to July 9, 2019, or in excess of 30 percent thereafter. Further, it has not been shown that the Veteran’s hearing loss affects him in a way not contemplated by the rating criteria. Thus, to the extent the Veteran may argue or suggest that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make that assertion. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As indicated, the rating of hearing loss disabilities requires audiometric testing that is administered and interpreted by a professional. Thus, the preponderance of the evidence is against a rating in excess of 10 percent prior to July 2, 2019, and in excess of 30 percent thereafter. The claims are denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 20 percent, prior to June 24, 2019, and in excess of 40 percent thereafter, for degenerative joint disease, lumbar spine is remanded. VA medical records dated from December 2012 to December 2015 show that the Veteran was receiving chiropractic treatment from a non-VA provider for his lumbar spine disability. However, these records are not associated with the Veteran’s claims file. In addition, a January 2020 physician note shows that the Veteran requested a referral to a non-VA chiropractor for his chronic lower back pain, and a subsequent February 2020 medical record shows that the Veteran was referred for a chiropractic consultation. However, these private treatment records are also not associated with the Veteran’s claims file. See June 2020 CAPRI. As such, the Board finds that a remand is required to obtain these records. Entitlement to TDIU is remanded. In July 2020, the RO deferred the issue of TDIU for submission of a completed VA Form 21-8940. In September 2020, a completed form was received, in which the Veteran stated he could not work due to his service-connected disabilities, to include his hearing loss and lumbar spine. As the Veteran has indicated he cannot work due to his disabilities on appeal, TDIU per Rice has been raised and will be considered as part of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the claims file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to include any private records relating to chiropractic treatment for the Veteran’s lumbar spine disability, dated from December 2012 to December 2015 and from January 2020 to the present. 2. Thereafter, if the benefits sought are not granted in full, readjudicate the claims on appeal, to include the claim for TDIU. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, 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.