Citation Nr: 21040710 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-18 761 DATE: July 6, 2021 ORDER Entitlement to an initial disability rating greater than 40 percent for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. FINDING OF FACT The competent evidence of record shows that the Veteran's bilateral hearing loss was manifested by no worse than Level VII hearing acuity for the right ear and Level VII hearing acuity for the left ear, with an exceptional pattern of hearing loss found in his right ear. CONCLUSION OF LAW The criteria for an initial disability rating greater than 40 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1962 to April 1968. As detailed below, the record indicates additional service beginning October 1960. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, granting service connection for bilateral hearing loss with a 10 percent disability rating, effective December 31, 2012. The Veteran filed a timely notice of disagreement (NOD) in November 2013, and in April 2015, the RO issued a statement of the case (SOC). The Veteran perfected his substantive appeal in June 2015. These matters have been remanded by the Board for further development in October 2015, April 2016, November 2019, and December 2020, and are again before the Board for adjudication. While these matters were pending before the RO, the RO issued a rating decision in December 2015, and granted a higher disability rating of 40 percent, effective December 31, 2012. The Board acknowledges that the Veteran has asserted that he began active duty service in October 1960. The Veteran has also indicated that, as requested, he has submitted a copy of a VA Form DD 214 reflecting this as part of a December 2020 Correspondence. The VA Form DD 214 in question does not appear to have been uploaded into the Veteran's claims file. On remand, the AOJ should attempt to update the Veteran's claims file to include any additional periods of active duty. See also Military Personnel Record dated September 30, 1966 (indicating date of enlistment of October 29, 1960). The Veteran's appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2020). 1. Entitlement to an initial disability rating greater than 40 percent for bilateral hearing loss is denied. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. Ratings for hearing impairment are 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 (1992). In this case, the Veteran seeks a compensable rating for his service-connected bilateral hearing loss. Specifically, the Veteran contends that his bilateral hearing loss is more severe than reflected by his currently assigned disability rating. The Veteran was afforded VA audiological examinations in October 2013, December 2015, and March 2021. Affording the Veteran the benefit of doubt, the Board will apply the results of the VA examination most favorable to Veteran, those of the March 2021 VA examination, to the entire period on appeal. Accordingly, puretone thresholds, in decibels, were at worst, as follows: HERTZ 1000 2000 3000 4000 RIGHT 60 75 85 90 LEFT 50 75 75 80 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 78 decibels for the right ear and 70 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 56 percent for the right ear and 60 percent for the left ear. Applying the test results of the March 2021 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level VIII for the right ear and Level VII for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a 40 percent disability rating for the Veteran's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII; Diagnostic Code 6100. The Board notes that the puretone thresholds for the Veteran's right ear on the March 2021 VA examination reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a), that is, the puretone threshold each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. Therefore, the Board has considered whether Section 4.86(a) would result in a more favorable rating. Under Table VIA, the Veteran has a Roman numeric designation of VII for his right ear. Using Table VII, the Veteran's Roman numeric designations of VII for his right ear and VII for his left ear corresponds to a 40 percent disability rating and results in an evaluation no higher than that afforded under Table VI. There are no other audiometric testing results during the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. In addition, private and VA treatment records do not indicate a disability more severe than reflected by the VA examination. The Board has carefully considered the Veteran's asserted difficulties and in no way discounts his assertions that his bilateral hearing loss should be rated higher. However, the valid VA examinations of record were conducted in accordance with the requirements for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85(a). Additionally, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann, 3 Vet. App. at 345. In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In reaching the above determinations, the Board has considered the Veteran's competent lay assertions. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's bilateral hearing loss. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Accordingly, the Board finds that an initial disability rating in excess of 40 percent for the Veteran's bilateral hearing loss is not warranted. The evidence preponderates against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities, on an extraschedular basis, is remanded. The Veteran is seeking entitlement to a TDIU. Specifically, he contends that although his employer allowed him to retain at desk at his place of employment, he has not used the desk in over twelve years. He cannot work due to his difficulty in understanding and hearing important vocal numbers. He further asserts that he has not received a check from his employment in over twelve years. See April 2021 Correspondence. The record also contains a February 2013 buddy statement, in which the Veteran's employer asserted that the Veteran was, at that time, earning 200 dollars per week. As noted above, this matter has been remanded to the AOJ for additional development in multiple Board decisions. Unfortunately, the Board finds that the requested development has not yet been substantially completed, and another remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, in an April 2016 decision, the Board remanded the issue and specifically requested that the AOJ schedule the Veteran for a VA social and industrial survey. The ultimate purpose was to elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. Following a review of the record, the Board notes that in a March 2018 deferred rating, the AOJ indicated that this requested development had not yet been done. There is no additional evidence that this request has been completed. Accordingly, a remand for a VA opinion regarding the Veteran's combined service-connected disabilities of bilateral hearing loss and tinnitus, medical history, education and employment history, day-to-day functioning, and social and industrial capacity is warranted. The Board further notes that the record indicates that the Veteran's employment during the appeal period, if any, may have been marginal. See February 2013 Buddy Statement. As such, on remand, the RO should consider whether the Veteran's employment during the appeal period constituted "marginal employment." Then, in light of the above, whether a referral to the Director for consideration of the matter under 38 C.F.R. § 4.16(b) is warranted. The matters are REMANDED for the following action: 1. The AOJ should obtain an opinion from a VA vocational or similar occupational specialist to evaluate the effect of all the service connected disabilitieson employability (the ability to obtain or maintain substantially gainful employment). Specifically, the VA examiner is directed to assess the extent of functional and industrial impairment resulting from each of the Veteran's service-connected disabilities. The opinion should address whether all the service-connected disabilities are so disabling as to render the Veteran unable to obtain or maintain substantially gainful employment, or to prevent training for such employment. A medical, educational, and employment history should be taken. The Veteran's age and the effects of nonservice-connected disabilities cannot be factors for consideration in making the determination; however, the effects of treatments and medications used to treat the service-connected disabilities should be considered in the opinion. The examiner should also take into account the Veteran's lay assertions throughout the record and the February 2013 buddy statement. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. 2. After all the above development has been accomplished, readjudicate the Veteran's TDIU claim with consideration of whether he is capable of more than marginal employment due to service-connected disabilities. In doing so, the AOJ should consider the February 2013 buddy statement, indicating that the Veteran was earning only 200 dollars a week. If warranted, the AOJ should also prepare an appropriate summary and refer to the Director of Compensation for consideration, the matter of entitlement to an extraschedular TDIU rating under 38 C.F.R. § 4.16(b). 3. If the benefit sought remains denied, furnish the Veteran a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.