Citation Nr: 22014384 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-34 531 DATE: March 12, 2022 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. 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 has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. CONCLUSION OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, Tables VI, VI(A), VIII, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to April 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA), Veterans Benefits Administration (VBA), Regional Office (RO). The RO granted the Veteran's claim for service connection for bilateral hearing loss but assigned a non-compensable rating. The Veteran appealed this issue and entitlement to a TDIU to the Board. In a June 2019 decision, the Board denied both issues. The Veteran appealed the Board's decision to the Court of Appeals for Veterans' Claims (Court) and in a March 2020 order, pursuant to a Joint Motion for Remand (JMR), the Court set aside the Board's June 2019 decision and remanded both issues back to the Board. In August 2020, the Board remanded the issues in order to provide the Veteran an opportunity to provide any pertinent information regarding relevant treatment for his service-connected disabilities and to afford him a VA examination. The requested development has been completed and the issues are again before the Board for further appellate review. 1. Entitlement to an initial compensable rating bilateral hearing loss. In this post-remand case, the Veteran seeks an initial compensable rating for his service-connected bilateral hearing loss. Disability ratings are determined by evaluating the extent to which a claimant'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 Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, 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. Ratings for hearing loss disability range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests, in conjunction with the average hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal 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 degree of disability resulting from service-connected defective hearing is mechanically determined by applying the numeric designations assigned to the rating schedule after audiometric evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Results of the evaluations are analyzed using Tables VI, VIA and VII, identified in 38 C.F.R. § 4.85. The Veteran was afforded an original VA audiological examination in February 2017. The Veteran reported difficulty hearing people, soft spoken words, and works spoken on television and movies. He also reported straining to the point of asking for repetition. Examination findings showed the puretone thresholds for the right ear at 1000 Hertz (Hz) was 25, with a 60 decibel (dB) loss at 2000, a 65dB loss at 3000, and a 65dB loss at 4000. The average loss was 53.75dB in the right ear. The right ear exhibited a 96 percent speech discrimination score. Table VI under 38 C.F.R. § 4.85 provides a Level I for the right ear based on puretone threshold average and speech discrimination percentage. The left ear puretone threshold of 1000 Hz showed a 25dB loss, with a 60dB loss at 2000 Hz, 65dB loss at 3000 Hz, and a dB loss of 65 at 4000 Hz. The average decibel loss was 53.75 in the left ear. The left ear exhibited a 90 percent speech discrimination score. Table VI provides a Level II for the left ear based on its puretone threshold average and speech discrimination percentage. Accordingly, a noncompensable evaluation is proper and was derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I, the better ear, with column II, the poorer ear. Accordingly, an evaluation of 0 percent is warranted under Diagnostic Code 6100 given the Veteran had an average decibel loss of 53.75 with 96 percent speech discrimination in the right ear and the left ear had an average decibel loss of 53.75 with 90 percent speech discrimination. Furthermore, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In May 2018, the Veteran was seen for an annual audiological evaluation. Puretone testing revealed normal hearing between 250-1000Hz, mild sensorineural loss at 1500Hz, dropping to moderately-severe sensorineural hearing loss between 2000-8000Hz. Word recognition was 92 percent for right and left ears. Following the Court's JMR and Board's remand, the Veteran was afforded an additional VA examination in July 2021. Examination findings showed the puretone thresholds for the right ear at 1000 Hertz (Hz) was 35, with a 70 decibel (dB) loss at 2000, a 70dB loss at 3000, and a 70dB loss at 4000. The average loss was 61.25dB in the right ear. The right ear exhibited a 94 percent speech discrimination score. Table VI under 38 C.F.R. § 4.85 provides a Level II for the right ear based on puretone threshold average and speech discrimination percentage. The left ear puretone threshold of 1000 Hz showed a 40dB loss, with a 70dB loss at 2000 Hz, 70dB loss at 3000 Hz, and a dB loss of 65 at 4000 Hz. The average decibel loss was also 61.25 in the left ear. The left ear exhibited a 90 percent speech discrimination score. Table VI provides a Level III for the left ear based on its puretone threshold average and speech discrimination percentage. Accordingly, a noncompensable evaluation is proper and was derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II, the better ear, with column III, the poorer ear. Accordingly, an evaluation of 0 percent is warranted under Diagnostic Code 6100 given the Veteran had an average decibel loss of 61.25 with 94 percent speech discrimination in the right ear and the left ear had an average decibel loss of 62.25 with 90 percent speech discrimination. Furthermore, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Accordingly, given the results from Table VII under 38 C.F.R. § 4.85, entitlement to an initial compensable rating under Diagnostic Code 6100 for bilateral hearing loss is not warranted. 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). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. During the pendency of the Veteran's appeal, he asserted that his service-connected bilateral hearing loss caused him to retire from his job as a salesman. This statement raised the issue of entitlement to a TDIU as part and parcel of his appeal seeking an increased evaluation for his service-connected bilateral hearing loss. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). As noted in the Introduction, the Board's prior denial of the Veteran's appeal seeking a TDIU was remanded by the Court in reliance on the parties' agreement in a Joint Motion for Remand. In pertinent part, the Court-endorsed Joint Motion noted that the Board's denial did not include a full discussion of the Veteran's prior educational and occupational history in finding that his service-connected disabilities did not preclude him from securing and maintaining a substantially gainful occupation, as per Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). To the above point, the Board cannot undertake the discussion deemed necessary in the Court-endorsed Joint Motion because the Veteran has not provided VA with the information necessary to complete this analysis. Particularly, the Veteran has not submitted a completed VA Form 21-8940 which details his complete educational and occupational history, to include what types of products and media were involved in his most recent occupation as a salesman. The Board observes that the Veteran has been provided several copies of this form and instructions on how to complete such; however, he has not done so. In short, the Veteran's inaction has frustrated the Board's ability to readjudicate his appeal, as analysis of such cannot be completed without the information held by the Veteran. On remand, the AOJ must provide the Veteran with a VA Form 21-8940, and the Veteran is encouraged to cooperate with the AOJ's instructions on completing and submitting this form in totality, as his failure to do so result in a finding that he has abandoned this appealed issue. 38 U.S.C. §§ 3003(a), 5103; 38 C.F.R. § 3.158; Morris v. Derwinski, 1 Vet. App. 260, 264 (1991); Jernigan v. Shinseki, 25 Vet. App. 220, 230 (2012). Further, the Veteran's combined evaluation does not meet the schedular criteria of 38 C.F.R. § 4.16(a). Nonetheless, the Board finds that the Veteran's assertion that his service-connected bilateral hearing loss has prevented his continued participation in his former occupation as a salesman triggers VA's duty to refer the matter to the Director of Compensation Service for an advisory opinion addressing this matter in the first instance. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *The Veteran is encouraged to cooperate with the AOJ's efforts to compile information concerning the totality of his educational and occupational history. 2. After completing any development which reasonably flows from the information provided by the Veteran, the AOJ must refer the Veteran's TDIU claim to the Undersecretary for Benefits or the Director of the Compensation Service for appropriate action as per 4.16(b). 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.