Citation Nr: 21040255 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 19-27 864 DATE: July 2, 2021 ORDER Entitlement to a disability rating in excess of 30 percent prior to August 24, 2020 and in excess of 50 percent thereafter for bilateral hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 30 percent prior to August 7, 2020 and in excess of 50 percent thereafter for posttraumatic stress disorder (PTSD) with chronic sleep impairment, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's bilateral hearing loss manifested at worst by level V hearing in the right ear and level IV hearing in the left ear prior to August 24, 2020, and by level VIII hearing in both ears thereafter. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent prior to August 24, 2020 and in excess of 50 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1951 to January 1953 and from October 1953 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2018 and March 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran and his cousin testified at a videoconference hearing before the undersigned. A transcript of the hearing is associated with the claims file. In February and December 2020, the Board remanded the issue of whether the reduction in disability rating from 30 percent to 10 percent, effective May 1, 2018, for bilateral hearing loss was proper. A January 2021 rating decision found a clear and unmistakable error was made in the reduction of disability evaluation for bilateral hearing loss from 30 percent to 10 percent, and a 30 percent disability evaluation was reinstated from May 1, 2018. Entitlement to a disability rating in excess of 30 percent prior to August 24, 2020 and in excess of 50 percent thereafter for bilateral hearing loss The Veteran filed a claim for increased rating for bilateral hearing loss on August 26, 2017. At the time of the February 2020 Board hearing, the Veteran's cousin testified the Veteran's hearing has definitely been worse. The Veteran explained he can hear but cannot understand what is being said. The Veteran's cousin testified he believed that over the phone the Veteran was just saying yes that he is understanding, but he knows that he is not, so he has to go see him in person to talk to him. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). 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. 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. 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. 38 C.F.R. § 4.86(b). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows at a September 2017 VA examination: September 27, 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 45 40 60 49 64 LEFT 50 35 50 55 48 72 Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board notes that while the results of this examination corresponded to a 10 percent rating, the Veteran was previously assessed at a 30 percent rating, based on an earlier VA examination, from November 2014, prior to the period on appeal. The Veteran underwent another VA examination in January 2018, with the following results: January 19, 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 60 50 50 55 53.75 none LEFT 55 50 55 65 65 none However, word discrimination scores were not available, and the examiner did not indicate that the use of a speech discrimination score was not appropriate for the Veteran. Therefore, these results are not adequate for rating purposes. 38 C.F.R. § 4.85. During the examination, the Veteran reported he has significant difficulty hearing and understanding speech. He also reported he needed to turn the television volume up to hear it. The Veteran underwent another VA examination in August 2020 with the following results: August 24, 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 60 60 55 55 57.5 48 LEFT 60 55 60 55 57.5 48 Applying the results to Table VI, the findings yield a numeric designation of Level VIII in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran reported that even with hearing aids he had a difficult time understanding others, especially on the phone. Based on the evidence above, a rating in excess of 30 percent prior to August 24, 2020 and in excess of 50 percent from August 24, 2020 for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing and understanding speech. 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 30 percent prior to August 24, 2020 and in excess of 50 percent thereafter 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). REMANDED Entitlement to an initial rating in excess of 30 percent prior to August 7, 2020 and in excess of 50 percent thereafter for PTSD with chronic sleep impairment, is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Board previously remanded the PTSD increased rating claim in February and December 2020. In December 2020, the issue of TDIU was also remanded. 1. Entitlement to an initial rating in excess of 30 percent prior to August 7, 2020 and in excess of 50 percent thereafter for PTSD with chronic sleep impairment. The December 2020 Board remand instructed the RO to associate with the claims file Detroit Vet Center records dated from August 2017 to the present. The record reflects the RO sent the Veteran a February 2021 subsequent development letter noting that the Board requested records dated from August 2017 to the present from the Detroit Vet Center. In March 2021, a "medical records request reject notice" was added to the file, which indicated the provider listed is not private and must be worked through the traditional process. The Board notes that the Veteran completed the General Release for Medical Provider Information, VA Form 21-4142a, with information from treatment at the VA medical center. However, it appears there may have been some confusion as the Veteran included dates in the future when asked for dates of treatment. Additionally, the Board notes that the date of the treatment records from the Detroit Vet Center was already specified as being from August 2017 to the present. The Board notes it was not clear what, if anything, was needed from the Veteran to obtain the Detroit Vet Center records. The form VA 21-4142 that was sent to the Veteran along with the letter indicating that the Vet Center records were wanted, specifically states, in all capital letters, "you should not complete this form unless you want the VA to obtain private treatment records on your behalf." Vet Center records are not private treatment records, but rather are records deemed in the constructive possession of VA. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Remand is warranted to obtain these records and to ensure substantial compliance with the prior remand. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to a TDIU is remanded. The claim for TDIU is intertwined with the development ordered above pertaining to the claim for PTSD, and therefore must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain the Veteran's treatment records from the Vet Center in Detroit for the period from August 2017 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain them would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Veteran must then be given an opportunity to respond. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.