Citation Nr: 21029188 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-19 820 DATE: May 12, 2021 ORDER Entitlement to an initial rating of 10 percent for bilateral hearing loss is granted. REMANDED Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran had Level III hearing acuity in the right ear and Level V hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial rating of 10 percent for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1965 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a January 2021 rating decision granted an increased rating for bilateral hearing loss from zero to 10 percent disabling, effective November 17, 2020. The issues have been characterized accordingly. The Veteran testified before the undersigned Veterans Law Judge in a May 2021 video conference hearing. At the hearing, the Veteran raised a claim for TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Such is not a separate claim, but a part of the claim on appeal. Increased Rating Entitlement to an initial rating of 10 percent for bilateral hearing loss. The Veteran seeks an increased rating for his bilateral hearing loss rated non-compensable prior to November 17, 2020, and 10 percent thereafter under DC 6100. Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The VA Schedule for Rating Disabilities (Rating Schedule) provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including Puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment in each ear. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Preliminarily, the Board notes that the Veteran was unable to report to VA audiological examinations in February 2016 and January 2018 due to incarceration. See May 2021, Board hearing. The United States Court of Appeals for Veterans Claims (Court) has long held that incarcerated veterans are entitled to the same care and consideration given to their fellow veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)). As VA failed to provide the Veteran with a VA audiological examination while he was incarcerated and there are no other relevant audiological tests of record, the Board will rely on the January 2021 VA examination for rating purposes. In the January 2021 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 35 40 50 70 LEFT 30 40 60 75 The average puretone thresholds were 49 in the right ear and 51 in the left ear. Speech audiometry revealed speech recognition ability of 76 percent in the right and 72 percent in the left ear. Applying the results of the January 2021 examination to Table VI produces a finding that the Veteran had Level III hearing acuity in the right and Level V hearing acuity in the left ear, warranting a 10 percent rating. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86. The Board acknowledges the Veteran's reports that his hearing loss results in having to read lips and use the closed caption feature on the television. This functional impairment is contemplated in the Rating Schedule. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Therefore, an initial rating of 10 percent is warranted for the Veteran's bilateral hearing loss during the appeal. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran seeks a rating in excess of 10 percent for bilateral hearing loss. In the May 2021 Board hearing, the Veteran testified that his hearing has gotten worse requiring him use closed captions when looking at television and to read lips when people are speaking to him. Thus, the Board finds that an updated VA examination is needed for the Veteran's service-connected bilateral hearing loss, as the January 2021 VA examination may not be reflective of the Veteran's current level or nature of his bilateral hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). Moreover, the Veteran asserted that bilateral hearing loss has also impacted his mental health. As this additional problem is not contemplated by the rating schedule for hearing loss, a nexus opinion is warranted to address the etiology of any psychiatric disorder secondary to service-connected bilateral hearing loss. See Morgan v. Wilkie, 31 Vet. App. 162 (2019) (explaining that VA's duty to maximize benefits may require it to consider secondary service connection as part of an increased rating claim). Additionally, because the Veteran's TDIU claim is inextricably intertwined with the claim remaining on appeal, appellate consideration of entitlement to TDIU rating is deferred pending resolution of the remaining claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records since November 2020 and associate them with the Veteran's claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of his bilateral hearing loss, to include any psychiatric impairment, and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Contact the Veteran and request that he complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. Schedule the Veteran for a VA examination(s) (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his bilateral hearing loss. Any medically indicated tests should be accomplished. The examiner should identify and describe the nature and severity of all manifestations of service-connected bilateral hearing loss, to include any psychiatric disabilities resulting from bilateral hearing loss. The examiner should also comment on the functional impairment resulting from bilateral hearing loss. 5. Schedule the Veteran for a VA examination(s) (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine whether he has any psychiatric disorder, and if so, whether it is at least as likely as not that any psychiatric impairment is a manifestation of his bilateral hearing loss as well as whether it is at least as likely as not that any psychiatric disability found to be present was caused or aggravated by his service-connected bilateral hearing loss. The examiner should identify all psychiatric disorders found to be present and acknowledge and discuss the Veteran's competent report that he is depressed as a consequence of his service-connected bilateral hearing loss. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.