Citation Nr: 21029549 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-16 175 DATE: May 13, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss (BHL) prior to February 18, 2020, is denied. Entitlement to an initial disability rating of 80 percent for BHL from February 18, 2020 is granted. Entitlement to an initial disability rating in excess of 80 percent for BHL is denied. Entitlement to individual unemployability (TDIU) prior to January 27, 2016 is denied. FINDINGS OF FACT 1. Prior to February 18, 2020, the Veteran's BHL did not result in impairment greater than level III for the right ear and level II for the left ear. 2. From February 18, 2020, the Veteran's BHL resulted in impairment no greater than level XI for the right ear and level IX for the left ear. 3. Prior to January 27, 2016, the Veteran was gainfully employment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for BHL prior to February 18, 2020 have not been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 2. The criteria for an 80 percent rating for BHL from February 18, 2020 have been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 3. The criteria for an initial rating in excess of 80 percent for BHL have not been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 4. The criteria for TDIU prior to January 27, 2016 have not been met. See 38 U.S.C. § 501; 38 C.F.R. § 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Marine Corps from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that assigned a noncompensable rating for BHL, after granting service connection for the same. The matter was Remanded in April 2020 for additional development. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference. The transcript is associated with the claims file. A March 2021 rating decision increased the rating for BHL from noncompensable to 80 percent effective January 18, 202. The Veteran was also assigned a TDIU, effective from January 27, 2016. INCREASED RATING Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). See 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. See 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. See 38 C.F.R. § 4.86 (a). In that situation, 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. Further, when the average pure tone 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 in the higher numeral, and that numeral will then be elevated to the next higher numeral. See 38 C.F.R. § 4.86 (b). In a June 2016 VAX, the Veteran reported being unable to hearing normal voices and misunderstanding what people say. His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Maryland CNC Table VI Right Ear 45 70 75 95 71.25 84 III Left Ear 40 55 55 65 53.75 84 II Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation, of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In a January 2021 VAX, the Veteran asserted difficulty hearing in a group setting and misinterpreting others. His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Maryland CNC Table VI Table VIA Right Ear 70 90 95 105+ 90 18 XI VIII Left Ear 60 70 75 80 71 40 IX VI Applying the results to Table VI, the findings yield a numeric designation of Level XI in the right ear and Level IX in the left ear. Entering the resulting bilateral numeric designation, of Level XI for the right ear and Level IX for the left ear to 38 C.F.R. § 4.85, Table VII, equates to an 80 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown. As pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. See 38 C.F.R. § 4.86 (a). Applying the results to Table VIA, the findings yield a numeric designation of Level VIII in the right ear and Level VI in the left ear. Entering those results into Table VII, equates to a 40 percent rating. Treatment records have been reviewed and considered but do not support the assignment of a higher rating. In so deciding, the findings of the February 2020 private audio examination have been considered but are deemed inappropriate for rating purposes. It is simply unclear as to whether the testing procedures outlined under 38 C.F.R. § 4.85(a), to include the administration of the Maryland CNC Word recognition test, were utilized. In Swain v. McDonald, 27 Vet. App. 219 (2015), the United States Court of Appeals for Veterans Claims (Court) held that the Board erred by dismissing the results of private audiological examinations that included non-Maryland CNC test speech recognition results even after a VA examiner explicitly found such non-Maryland CNC results to be consistent with later Maryland CNC testing. The Court also determined that the assignment of an effective date should not be assigned mechanically" based on test results in an examination report, but rather "all of the facts should be examined to determine" the appropriate effective date. The findings of the February 2020 private audio test do suggest a shift in hearing acuity when compared to the earlier 2016 VA examination. The January 2021 VA examination did not include a discussion of the private examination. Coupled with the Veteran's February 2020 testimony regarding worsening of his hearing loss disability, and after resolving all doubt in his favor, the Board finds that the criteria for the assigment of an 80 percent rating for bilateral hearing loss is warranted from the date of the private examination, which was February 18, 2020. Consideration has been given to the Veteran's argument that his BHL was more severe than represented by the VAXs. However, he does not have either the education or training to offer a medical opinion challenging the adequacy of the testing, and as there is no competent evidence of record to support that his hearing loss was, in fact, more severe than indicated on examination, the Veteran's assertions are not probative. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The most probative medical evidence as to the severity of the Veteran's BHL for the period discussed herein are audiometric findings shown on the VAXs. As noted above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, and here that yields a noncompensable evaluation prior to February 18, 2020 and an 80 percent evaluation from February 18, 2020. The Board notes the Veteran's report of symptoms in the VAXs of being unable to hear normal voices, difficulty hearing in a group setting, and misinterpreting others. The functional impact that the Veteran describes, is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). His 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). Based on the evidence above, an initial compensable rating for BHL prior to February 18, 2020 and a rating in excess of 80 percent from February 18, 2020 is not warranted. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). The Veteran met the schedular requirements under 4.16 (a) prior to January 27, 2016. A review of the record noted that the Veteran had a combined service-connected disability evaluation of 60 percent effective November 6, 2015 (date of claim). The record demonstrated that his multiple service-connected disabilities were all designated as a result of "combat" and therefore the 60 percent evaluation will be considered as one disability under 38 C.F.R. § 4.16 (a)(4). See March 2021 Codesheet. He met the schedular criteria for TDIU effective November 6, 2015 (date of claim). Nevertheless, the Board finds that entitlement to a TDIU is not warranted prior to January 27, 2016. The Veteran submitted a completed VA 21-4192 in September 2020 showing that he was employed until January 26, 2016 with service electric cablevision. He worked 24 hours a week as a project manager. He earned $58,732.72, during the 12 months preceding his last date of employment. The September 2020 Income and Tax Statement are consistent with this finding. Such is well in excess of the 2015 poverty threshold. As the Veteran was able to obtain and maintain gainful employment consistent with his education and occupational experience TDIU is not warranted prior to January 27, 2016. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.