Citation Nr: 23048827 Decision Date: 09/06/23 Archive Date: 09/06/23 DOCKET NO. 20-03 311 DATE: September 6, 2023 ORDER Entitlement to an evaluation in excess of 0 percent for the period on appeal prior to February 27, 2020, and a rating in excess of 10 percent thereafter for a bilateral hearing loss disability is denied. REMANDED Entitlement to an initial evaluation in excess of 20 percent for service-connected left shoulder strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. For the period prior to February 27, 2020, the Veteran's hearing impairment has manifested at worst to a Level I impairment in the right ear and a Level I impairment in the left ear. 2. For the period from February 27, 2020 forward, the Veteran's hearing impairment has manifested at worst to a Level IV impairment in the right ear and a Level V impairment in the left ear. CONCLUSION OF LAW The criteria for an evaluation in excess of 0 percent prior to February 27, 2020, and a rating in excess of 10 percent thereafter for a bilateral hearing loss disability have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1985 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2018 to November 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). When a veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board finds that the issue of entitlement to a TDIU has been raised by the record because the Veteran alleged in an January 2020 VA Form 9s that his service-connected hearing loss and left shoulder disabilities have impacted his employability. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38U.S.C. §§1114(s), (l), (k); 38C.F.R. §3.350(a), (b), (i). The Board finds that consideration of SMC is not inferred by the record, and as such will not be discussed. For the reasons explained below, the issues of entitlement to an increased rating for the left shoulder and entitlement to a TDIU are being remanded for further development. Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38C.F.R. §4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Increased Rating for Hearing Loss Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R.§ 4.85. "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38C.F.R. §4.86(a). Also, when the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). Evidence and Analysis The Veteran is seeking an increased rating for his bilateral hearing loss disability. He contends that his hearing loss disability is more severely disabling than contemplated by the current assigned ratings. Turning to the evidence of record, the Veteran was afforded a VA audiological examination in May 2018. The results of the examination, as measured by a puretone audiometry test, were as follows: ?? ?? ?? HERTZ?? ?? ?? ?? 500?? 1000?? 2000?? 3000?? 4000?? RIGHT?? 10 15 55?? 60? 65 LEFT?? 5?? 10 55 55 60 ?? Based on these results, the average puretone threshold was 49 decibels for the right ear and 45 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 92 percent in the right ear and 100 percent in the left ear as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level I for the left ear pursuant to 38C.F.R. §4.85. As to functional impairment, the Veteran reported that he had problems communicating, especially with background noise. He reported that he did not attend social situations and people would get annoyed with him at work. The Veteran was afforded another VA audiological examination in February 2020. The results of the examination, as measured by a puretone audiometry test, were as follows: ?? ?? ?? HERTZ?? ?? ?? ?? 500?? 1000?? 2000?? 3000?? 4000?? RIGHT?? 20 30 65?? 65? 70 LEFT?? 15? 20 60 55 65 ?? Based on these results, the average puretone threshold was 58 decibels for the right ear and 50 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 80 percent in the right ear and 72 percent in the left ear as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level IV Roman numeral designation for the right ear and a Level V for the left ear pursuant to 38 C.F.R. § 4.85. As to functional impairment, the Veteran reported that communication was almost impossible and this was one of his main reasons for retiring. 1. Entitlement to an evaluation in excess of 10 percent for the period on appeal prior to February 27, 2020 for a bilateral hearing loss disability. During this period on appeal the May 2018 VA examination reflects that the Veteran has a Level I hearing impairment in the right ear and a Level I hearing impairment in the left ear. When the Level I and Level I designations are mechanically applied to Table VII, the result is a 0 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 345. During this period on appeal, none of the results reported in the Veteran's claims file meet the requirements for evaluation based on an exceptional pattern of impairment. 38 C.F.R. § 4.86(a)(b). In addition to objective test results, the functional effects of a hearing disability must be discussed for an audiological examination report to be adequate. Martinak, 21 Vet. App. at 455. The May 2018 examiner discussed the functional effects of the Veteran's hearing disability in the audiological examination report. The VA examiner noted the Veteran's reported problems communicating, especially with background noise, his avoidance of social situations and his difficulties at work. Thus, the functional impact of the Veteran's hearing loss was considered by the VA examiner. No other medical evidence concerning the Veteran's bilateral hearing loss, specifically valid audiograms beyond the one discussed, is of record for the period on appeal. The Board has considered the Veteran's lay statements, in which he contends difficulty hearing generally, and difficulty understanding speech with background noise. Further, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record for this period on appeal consists of the May 2018 audiological examination. The results of this examination indicate that the Veteran's hearing loss is at a non-compensable rating. See 38 C.F.R. § 4.85. For these reasons, the Veteran's claim for an increased rating in excess of 0 percent for bilateral hearing loss for this period is denied. All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned rating for the period on appeal for the Veteran's bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 2. Entitlement to an evaluation in excess of 10 percent after February 27, 2020, for a bilateral hearing loss disability. During this period on appeal the February 2020 VA examination reflects that the Veteran has a Level IV hearing impairment in the right ear and a Level V hearing impairment in the left ear. When the Level IV and Level V designations are mechanically applied to Table VII, the result is a 10 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 345. During this period on appeal, none of the results reported in the Veteran's claims file meet the requirements for evaluation based on an exceptional pattern of impairment. 38 C.F.R. § 4.86(a)(b). The February 2020 examiner discussed the functional effects of the Veteran's hearing disability in the audiological examination report. Martinak, 21 Vet. App. at 455. The VA examiner noted the Veteran's reports that communication was nearly impossible due to his hearing loss disability. Thus, the functional impact of the Veteran's hearing loss was considered by the VA examiner. No other medical evidence concerning the Veteran's bilateral hearing loss, specifically valid audiograms beyond the one discussed, is of record for the period on appeal. The Board has considered the Veteran's lay statements, in which he contends difficulty hearing generally, and difficulty with communication, and this being one of the main reasons for him retiring. Further, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record for this period on appeal consists of the February 2020 audiological examination. The results of this examination indicate that the Veteran's hearing loss is at a compensable rating of 10 percent. See 38 C.F.R. § 4.85. For these reasons, the Veteran's claim for an increased rating in excess of 10 percent for bilateral hearing loss for this period is denied. All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned rating for the period on appeal for the Veteran's bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Conclusion on bilateral hearing loss disability In light of the foregoing, the Board finds that the criteria for the assignment of a disability rating in excess of the currently assigned 0 percent rating for the Veteran's bilateral hearing loss disability for the period prior to February 27, 2020, and in excess of 10 percent from February 27, 2020, forward have not been more nearly approximated. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. In reaching this conclusion, the evidence persuasively stands against finding in favor of the claim in that it is not in "approximate balance" or "nearly equal" to the evidence that supports the claim. See Lynch v. McDonough, No. 20-2067 (Fed. Cir. 2021) (holding "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other). Although the rule does not require that the evidence be in exact equipoise, there is still no doubt to resolve in the appellant's favor. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claim is denied. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 20 percent for left shoulder strain is remanded. The Veteran contends that his service-connected left shoulder strain is more severely disabling than reflected in the currently assigned 20 percent rating. After a review of the record, the Board notes that the Veteran has not had a VA examination to determine the severity of his service-connected left shoulder disability since August 2018. Thus, a remand is warranted to afford him a new VA examination to assess the current nature, extent, and severity of his service- connected left shoulder disability. 2. Entitlement to total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is remanded. As mentioned earlier, the Board has inferred the claim of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In the instant case, the Board first notes that the Veteran has not completed a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). The record reflects that the RO made a request for the Veteran to complete and return this form in February 2020. The Veteran has not completed the form nor presented any additional evidence regarding his employment history. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In the instant case the Veteran does not have any single service-connected disability that is rated at 60 percent, nor does he have a combined rating for two or more service-connected disabilities of at least 70 percent with at least one disability rated at 40 percent. Therefore, at this time the Board finds that he does not meet the schedular requirements for TDIU. The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the outcome of the Veteran's claim for increased ratings regarding his left shoulder disability, as remanded herein. Rice v. Shinseki, 22 Vet. App. 447 (2009) (finding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation). Therefore, the Board cannot adjudicate the Veteran's TDIU claim until the development requested for the claim for increased ratings is accomplished. Also, as noted above, the Veteran does not currently meet the percentage threshold requirements for TDIU for the period on appeal. VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). However, the Board is prohibited from assigning TDIU based on 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, after development upon remand, if the Veteran does not meet the threshold criteria for TDIU for any period on appeal, and there is evidence of unemployability due solely to service-connected disabilities, then the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration of a TDIU. Finally, on remand, the Board notes that the Veteran should have an opportunity to provide an updated employment history for the entire period on appeal since December 2017, including submitting any leave and earnings statements, tax documents and Social Security records. The Veteran should also be given an additional opportunity to submit a VA-Form 21-8940. However, the Veteran is reminded that the "duty to assist" is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. Schedule the Veteran for a new VA examination by a qualified examiner to determine the current nature and severity of his service-connected left shoulder disability. The claims folder must be made available to the examiner in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner should describe the nature and extent of the Veteran's service-connected left shoulder disability. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's disability, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald,28?Vet. App.?158(2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin,29?Vet. App.?26(2017), the examiner(s) is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 3. Send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Verification, to be fully completed and returned to VA. If VA does not receive these completed documents, the issue will be adjudicated based upon the evidence of record. (Continued on the next page) ? 4. If for any period on appeal that Veteran does not meet the threshold criteria for TDIU there is evidence of unemployability due solely to service-connected disabilities refer the matter to the Director, Compensation Service, for extraschedular consideration of a TDIU. 5. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the issues that have been remanded. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental SSOC and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board Ardie A. Bland Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.