Citation Nr: 21027092 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-42 151 DATE: May 4, 2021 ORDER 1. Entitlement to a compensable rating prior to February 5, 2018 for bilateral hearing loss is denied. 2. Entitlement to a rating in of 20 percent, but no higher, for bilateral hearing loss from February 5, 2018 until August 13, 2019 is granted. REMANDED Entitlement to service connection for vertigo, including as secondary to hearing loss and tinnitus, is remanded. Entitlement to service connection for headaches, including as secondary to hearing loss and tinnitus, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to February 5, 2018 the Veteran's hearing acuity was not shown to be higher than Level II in his right ear and Level III in his left ear. 2. From February 5, 2018 until August 13, 2019 the Veteran's hearing loss was not shown to be higher than Level IV in his right ear and Level V in his left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met prior to February 5, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a 20 percent rating for bilateral hearing loss, but no higher, have been met from February 5, 2018 until August 13, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July1966 to July1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Regional Office (RO) for Department of Veterans Affairs (VA). In February 2018, the Veteran testified before the undersigned Veteran's Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing is associated with the claims file. In August 2018, the Board remanded the Veteran's increased rating claim for bilateral hearing loss for further development. In a September 2020 Board decision the Veteran was assigned a 10 percent rating for bilateral hearing loss from August 13, 2019 to the present. The Board remanded the increased hearing loss clam prior to August 13, 2019 for additional development and requested further opinions to be obtained regarding separate ratings for the Veteran's headaches and vertigo. As the August 2019 VA examination for the Veteran's hearing loss noted that the condition would impact his employability and the Veteran meets the schedular requirement for a TDIU as of October 2020, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). 1. Entitlement to an initial compensable rating for bilateral hearing loss The period on appeal before the Board is from June 19, 2013 (the date VA received the Veteran's service connection claim for hearing loss) until August 13, 2019. The Board previously assigned a 10 percent rating for the Veteran's bilateral hearing loss from August 13, 2019 in the September 2020 Board decision. Following the Board's decision, the Veteran requested an increased rating in October 2020 and was granted an increased rating of 40 percent for bilateral hearing loss in a November 2020 rating decision. The Board notes that the development requested by the September 2020 remand regarding clarification of the private testing results has not been completed, however, the Board has resolved any reasonable doubt in favor of the Veteran and therefore there is no prejudice to the Veteran in adjudicating this matter at this time. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is 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, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Turning to the evidence of record, VA treatment records dated throughout the appeal period reflect the Veteran's complaints of bilateral hearing loss and the use of hearing aids. The Board notes that there were two audiogram assessments performed by VA treatment centers. One audiogram assessment was conducted prior to the appeal period in March 2013 and the other was conducted in January 2019. See June 5, 2013 and January 27, 2019 CAPRI records. However, these assessments do not include audiometric findings that indicate an exceptional pattern of hearing loss and were not conducted using the required Maryland CNC word list. An April 25, 2014 VA examination reveals that the Veteran reported difficulty hearing and understanding speech which required him to ask people to repeat themselves. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 75 95 65 92% LEFT 35 55 90 100 70 88% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A February 5, 2018 private examination from the ENT Institute reveals that the Veteran wore hearing aids and had difficulty with one on one communication. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 65 85 95 75 76% LEFT 45 60 95 110 78 80% Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level V in the left ear. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in right ear. Here, Table VIA yields the highest rating for the right ear. Applying the results to Table VIA yields Level VI in the right ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. The Board notes that it had previously remanded this matter for clarification of the proper Maryland CNC results from this testing. As these results have not been obtained the Board has used the results most favorable to the Veteran in deciding this matter. Based on the evidence above, a compensable rating for the Veteran's hearing loss prior to February 5, 2018, is not warrant and a rating in excess of 20 percent for the Veteran's bilateral hearing loss is warranted from February 5, 2018, until August 13, 2019. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's testimony that he had difficulty hearing people unless they were talking to him directly, that he had the police called by a neighbor due to the volume on his television being so high. The Board further considered the Veteran's request for extraschedular consideration in an August 2015 statement by his accredited representative. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board is cognizant that the Veteran relates functional effects of vertigo and headaches to his hearing loss, however the rating schedule does not contemplate effects other than difficulty hearing or understanding speech and the Board has remanded the matters of headaches and vertigo for further consideration. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating prior to February 5, 2018, and a rating in excess of 20 percent from February 5, 2018, until August 13, 2019, for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, 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 (1990). REASONS FOR REMAND 1. Entitlement to separate ratings for vertigo and headaches, including as secondary to hearing loss, and TDIU Although the Board regrets the additional delay, the prior remand directives were not complied with and therefore another remand is unfortunately required. See Stegall v. West, 11 Vet. App. 268 (1998). In regard to the Veteran's claims for entitlement to separate ratings for headaches and vertigo, the Board had requested that opinions be obtained regarding direct service connection. On remand, there was an opinion obtained regarding direct service connection as requested by the prior Board remand, however, this opinion did not note reports of headaches and dizziness within the Veteran's service treatment records. The Board notes that the Veteran has reported that these conditions began following a rocket blast during the Tet Offensive. As such, the Board finds that a remand is necessary for an addendum opinion to be obtained regarding these conditions. As noted above, the issue of a TDIU has been raised by the record. A request for a TDIU, reasonably raised by the record, is not a separate claim for benefits but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. Rice, 22 Vet. App. at 453-54. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The matters are REMANDED for the following action: 1. Obtain and associate any outstanding records, including VA treatment records, with the Veteran's claims file. The Veteran's records appear to be complete through September 2020. 2. Obtain an addendum opinion for the Veteran's vertigo and headache conditions from an examiner other than the one who offered the August 2019 opinion. The need for a further examination is left to the examiner's discretion. The claims folder must be made available to the examiner for review. The examiner is asked to review all pertinent records associated with the claims file, and to offer comments and an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that: (a.) The Veteran's vertigo disability was caused by or began during service. (b.) The Veteran's vertigo is caused by or related to his service-connected hearing loss or tinnitus. (c.) The Veteran's vertigo is aggravated by his service-connected hearing loss or tinnitus. (d.) The Veteran's headache disability was caused by or began during service. (e.) The Veteran's headache disability is caused by or related to his service-connected hearing loss or tinnitus. (f.) The Veteran's headache disability is aggravated by his service-connected hearing loss or tinnitus. The examiner is advised that aggravation need not be permanent in nature. As a final request, the examiner should consider whether any of the Veteran's other service-connected disabilities or the medications taken for same have caused or aggravated the Veteran's headache disorder. All opinions must be supported by a clear rationale and a discussion of the facts and medical principles involved is required. The examiner must specifically note the reports contained in the Veteran's service treatment records of dizziness on July 20, 1966 and headaches on April 10, 1970 in rendering an opinion. The examiner must also consider the Veteran's reports that these conditions began with an injury sustained during the Tet offensive. If the examiner finds any reason to doubt such reports a rationale and medical evidence should be offered to support such a conclusion. 3. Provide the Veteran an opportunity to submit a completed TDIU application form (VA Form 21-8940), as well as appropriate notice of the evidence necessary to substantiate a claim for TDIU benefits, and undertake any development deemed necessary with respect to the Veteran's TDIU claim 4. Request that the Veteran report his earned annual income for any year where he believes the combined effects of his service-connected disabilities have precluded him from working for the years 2014 to 2020 and include copies of his Federal Tax returns for each year with a statement that the copy is an exact duplicate of the return filed with the IRS. In the alternative, he may provide IRS Form 4506-T "Request for Transcript of Tax Return" for the years 2014 through 2020. The required form may be obtained at: https://www.irs.gov/pub/irs-pdf/f4506t.pdf MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John M. Middleton 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.