Citation Nr: 21028359 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-34 571 DATE: May 11, 2021 ORDER Entitlement to a higher rating for bilateral hearing loss, rated as noncompensable prior to June 19, 2015, as 20 percent from June 19, 2015, and as 40 percent from October 9, 2019, for substitution purposes, is denied. REMANDED A total disability rating based on individual unemployability (TDIU), to include extraschedular consideration, for substitution purposes, is remanded. FINDING OF FACT The Veteran's audiometric testing does not indicate a higher compensable rating for bilateral hearing loss disability was warranted for any time during the pendency of this appeal. CONCLUSION OF LAW The criteria for a higher compensable rating for bilateral hearing loss, for substitution purposes, have not been met at all times during the pendency of the appeal. 38 U.S.C. §§ 5121A, 1155, 5107; 38 C.F.R. §§ 3.102, 3.1010, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to October 1970, to include service in the Republic of Vietnam. The Veteran died in November 2020. The Appellant is the Veteran's surviving spouse and she has been properly substituted as the claimant in this appeal. See e.g., VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, received December 15, 2020; March 2021 Supplemental Statement of the Case (SSOC). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case to the RO for additional development in August 2018 and September 2020. The Board finds the RO substantially complied with the Board's remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 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). Increased Rating for Bilateral Hearing Loss The Appellant contends the Veteran is entitled to a higher compensable disability rating for bilateral hearing loss during all periods on appeal. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85(h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85(b). In instances where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85(h), Table VIA. Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. §§ 4.85(h); 4.86. After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85(h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85(e). Turning to the evidence, the claims file contains an August 2010 audiological examination conducted by Dr. L.R.S., a state-licensed otolaryngologist (ENT). On examination, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 55, 40, 60, and 70, and in the left ear were 65, 30, 45, and 55. The puretone threshold average in the right ear was 56 and in the left ear it was 49 decibels. Speech discrimination in the right ear was 85 percent and 90 percent in the left ear. The private examiner opined the Veteran's hearing loss was moderate to severe bilaterally. Unfortunately, the Board must afford the August 2010 audiological examination little probative weight because there is no indication that the examiner utilized the Maryland CNC speech discrimination test on the examination as required by VA regulations. See 38 C.F.R. § 4.85(a) (An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test). Nonetheless, the Board finds this is not prejudicial to the Appellant because the August 2010 private examination demonstrates a noncompensable (0%) rating was warranted under Table VII of 38 C.F.R. § 4.85, even if the Maryland CNC speech discrimination is assumed. On contract VA examination in July 2012, the Veteran reported that he could not understand people without the use of his hearing aids. The puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 60, 45, 60, and 65, and in the left ear were 65, 35, 55, and 65. The puretone threshold average in the right ear was 58 and in the left ear it was 55 decibels. Speech discrimination in the right ear was 92 percent and 90 percent in the left ear. Based on the July 2012 examination findings, for the right ear, the average pure tone threshold of 58 decibels, along with a speech discrimination percentage of 92 warrants a designation of Roman Numeral II under Table I of 38 C.F.R. § 4.85. For the left ear, the average pure tone threshold of 55 decibels, along with a speech percentage of 90 percent warrants a designation of Roman Numeral II under Table I of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral II, and the left ear is Roman Numeral II, the appropriate rating is 0 percent under Diagnostic Code 6100. The Veteran next submitted private treatment records from Dr. L.R.S. showing pure tone threshold averages of 50 decibels in the right ear and 52 decibels in the left ear with discrimination scores of 100 percent bilaterally. See Private Audiogram Results from Dr. L.R.S. from March 2013. However, as previously stated, an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). See 38 C.F.R. § 4.85(a). The March 2013 audiological examination does not indicate whether the Maryland CNC test was used and as such the Board must afford it little probative weight in the analysis of the claim. However, even if the Maryland CNC test is assumed, the pure tone threshold averages and speech discrimination scores equate to a noncompensable (0%) rating based under Table VII of 38 C.F.R. § 4.85 and thus the lack of probative weight afforded to the March 2013 private examination is not prejudicial to the Appellant in this matter. On VA examination in June 2015, the Veteran reported that his hearing became noticeably worse since 2011. He could no longer hear the alarm in the morning when his hearing aids were left out and the hearing aids issued by VA were working well when used. The puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 75, 65, 70, and 65, and in the left ear were 75, 55, 60, and 65. The puretone threshold average in the right ear was 69 and in the left ear it was 64 decibels. Speech discrimination in the right ear was 86 percent and 92 percent in the left ear. Under 38 C.F.R. § 4.86(a) when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Board will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Thus, the June 2015 shows the Veteran's puretone thresholds at each of the four specified frequencies above 55 decibels or more. Accordingly, under Table VI, the June 2015 audiometric findings correspond to Level III hearing loss in the right ear and Level II in the left ear. Under Table VIA, however, the June 2015 audiometric findings correspond to Level V hearing loss in the right ear and Level V in the left ear. In this case, the Roman numeral designation most favorable to the Veteran are found under Table VIA. Accordingly, the results under Table VIA will be used. A Roman numerical designation of V, bilaterally, equate to a 20 percent disability rating under Table VII. The Board notes the Veteran was awarded a 20 percent disability rating by the August 2015 rating decision rendered by the RO with an effective date of the date of the June 2015 VA examination. The Board also acknowledges the VAMC Redding Outpatient Clinic Audiogram from September 2016, associated with the claims file in October 2020, showing pure tone threshold averages of 62 decibels in the right ear and 68 decibels in the left ear with Maryland CNC discrimination scores of 76 percent bilaterally. Under Table VI, the September 2016 audiometric findings correspond to Level IV hearing loss in the right ear and Level IV in the left ear. These Roman numerical designations equate to a 10 percent disability rating under Table VII. However, the Board notes that the Veteran was receiving 20 percent disability rating from June 19, 2015 and throughout this period. Therefore, no increase in the Veteran's bilateral hearing loss is warranted during this time period based on the September 2016 VA audiological examination because he was already receiving a higher disability rating at the time of the examination. On VA examination in October 2019, the Veteran reported that he experienced a great deal of difficulty understanding speech, even while wearing his hearing aids and that he continued to misunderstand parts of conversations, rendering interactions with others "a struggle" and exacerbated by background noise and talking on the phone. The puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 70, 55, 75, and 70, and in the left ear were 70, 60, 70, and 70. The puretone threshold average in the right ear was 68 and in the left ear it was 68 decibels. Speech discrimination in the right ear was 64 percent and in the left ear was 56 percent. As stated, under 38 C.F.R. § 4.86(a) when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Board will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Thus, the October 2019 examination shows the Veteran's puretone thresholds at each of the four specified frequencies above 55 decibels or more. Accordingly, Table VI, the October 2019 audiometric findings correspond to Level VII hearing loss in the right ear and Level VIII in the left ear. Under Table VIA, the October 2019 audiometric findings correspond to Level V hearing loss in the right ear and Level V in the left ear. In this case, the Roman numeral designation most favorable to the Veteran under Table VI will be used. Those Roman numerical designations equate to a 40 percent disability rating under Table VII. The Board notes the Veteran was awarded a 40 percent disability rating by the June 2020 rating decision rendered by the RO with an effective date of the date of the October 2019 VA examination. The Board also considered the Veteran's service-connected bilateral hearing loss under 38 C.F.R. § 4.86 for other exceptional patterns of hearing impairment. However, based on audiometric testing results, the Veteran's bilateral hearing loss did not fit the requirements of an unusual pattern of hearing impairment where pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Therefore, other than as noted above in the June 2015 and October 2019 VA examinations, 38 C.F.R. § 4.86 is not for application in this case. Although the severity of his hearing loss appears to have increased somewhat during the appeal period, at no time did the Veteran's bilateral hearing loss meet the criteria for the assignment of a higher disability rating at any time during the appeal. It is important for the Appellant to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the finding against the claim for an increased rating at any time during the appeal. The Board is cognizant of the Veteran's reported difficulties in understanding speech and his need for hearing aids. See Veteran Correspondence from September 29, 2016, September 24, 2015, and August 26, 2013. Still, the "mechanical application" of the diagnostic criteria to the evidence at hand clearly establishes that the criteria for higher disability ratings are simply not met for the periods at issue. The Board also notes that while treatment records also document the Veteran's complaints and/or treatment for hearing loss, nothing in these records show his adverse symptomatology to be worse than what was reported at the above VA examinations. See e.g., Private Audiogram by Dr. L.R.S. dated July 30, 2013, received August 26, 2013; Private Treatment Records from Dr. L.R.S. for the period between August 4, 2010 and June 24, 2013; Treatment reports, VA Medical Center Martinez, VA Outpatient Clinic Redding, VA Outpatient Clinic Cypress Avenue, and VA Outpatient Clinic Yreka, from July 30, 2013 through November 9, 2020. Nonetheless, the Board finds the VA examiners opinions as to the severity of his hearing loss more probative than any lay claims to the contrary because the examiners as medical professionals have greater expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In summary of all the foregoing, the Board finds entitlement to a higher rating for bilateral hearing loss, rated as noncompensable prior to June 19, 2015, as 20 percent from June 19, 2015, and as 40 percent from October 9, 2019 is not warranted for any time during the pendency of the appeal for the reasons outlined above. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.86, Diagnostic Code 6100. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, for the reasons outlined above, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND The TDIU Claim The Veteran's VA Form 21-8940 (TDIU Application) shows that he was unemployed since 2010. See Veteran's VA Form 21-8940, received September 2015. A detailed review of the record shows the Veteran was in the Navy for 3.5 years and was around guns, artillery and other ship noises and that his hearing loss began when he returned home from Vietnam. Thereafter, he reported that he cut timber for 20 years and worked various jobs at McCloud lumber mill, including performing other "utility" jobs, working there prior to joining the military in 1966. See August 2013 Veteran Correspondence. He reported he wore hearing protection throughout his work there. See August 2010 Private Audiology Examination. The Veteran also reported simultaneously working for 30 years in the local Fire Department, 25 of which were spent as a Captain, eventually retiring due to nerve pain in his leg. See August 2013 Veteran Correspondence. The Veteran also reported he needed to move to Chester, California, after 20 years at McCloud lumber mill, in order to secure employment at a non-local lumber mill, after McCloud closed down. Id. He reported working at Chester mill for 6.5 years, where, he reported that he became concerned for his safety and the safety of his co-workers, due to his leg pain and service-connected hearing loss disability. Id. In this regard, given the 40 percent rating assigned for his service-connected bilateral hearing loss when combined with the additional problems reported by the Veteran in the ordinary conditions of life and work, the Board finds issues with safety stemming from the normal and hazardous dangers of his workplace environment, while performing non-sedentary employment. The Board also finds that the Veteran's bilateral hearing loss could cause a danger to co-workers in the workplace performing non-sedentary employment, given his past employment and educational background. However, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. In this regard, the Veteran does not have a single disability of 60 percent disabling, and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). In this regard, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Importantly, neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); see also Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (stating that "the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU" and "[o]n its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance). At present, the Board must make the initial determination as to whether referral to the Director of Compensation for an extraschedular TDIU rating under § 4.16(b) is warranted. See Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019) (the Board's initial finding that extraschedular referral for TDIU is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the ultimate decision to award an extraschedular TDIU rating). After weighing the medical and lay evidence of record, the Board finds that the criteria for referral of TDIU on an extraschedular basis are met. See 38 C.F.R. § 4.16(b). To date, the case has not been referred to the Director of Compensation Service for extraschedular consideration. Therefore, the Board remands entitlement to a TDIU for referral to the Director of Compensation Service, for extraschedular consideration and then adjudication under 38 C.F.R. § 4.16(b) by the RO. As such, the Board finds that remand is warranted. The matter is REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding VA and private medical records and associate them with the claims file. In particular, any workmen's compensation claims, Social Security claims, or any other claims for disability should be provided (if any), including any medical examination reports associated with those claims. If possible, the Appellant should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Thereafter, unless the AOJ finds that a fully favorable decision can be rendered, refer the claim to the Director of Compensation and Pension Service for consideration of whether a TDIU on an extraschedular basis is warranted. 3. Thereafter, readjudicate the appeal. If the benefits sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.