Citation Nr: 18160395
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 10-09 368
DATE:	December 26, 2018
ORDER
Entitlement to an initial compensable rating for bilateral hearing loss is denied.
REMANDED
Entitlement to service connection for an acquired psychiatric disorder.
Entitlement to service connection for a headache disorder. 
Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.
FINDINGS OF FACT
The Veteran’s bilateral hearing loss is manifested by no worse than Level III hearing loss in both ears. 
CONCLUSIONS OF LAW
The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2018)
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the U.S. Army from August 1958 to February 1962.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2011 and a copy of the transcript is of record.  
In April 2012, the Board remanded the Veteran’s claims because he reported his bilateral hearing loss had worsened since his last VA examination.  Additionally, the Board concluded a claim for TDIU was raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Consequently, the Board remanded the case for the Veteran to receive a new VA examination for his bilateral hearing loss.  In addition, the case was remanded for the Agency of Original Jurisdiction (AOJ) to provide the Veteran with a VCAA letter detailing the evidence he could provide to support his TDIU claim.  
The Veteran’s VCAA letter was sent in November 2012 and received a VA examination in January 2013.  In a June 2016 decision, the Board determined the Veteran’s bilateral hearing loss and tinnitus did not impact his ability to obtain and maintain gainful employment; thus, his TDIU claim was denied.  The Board remanded his bilateral hearing loss claim to obtain his November 17, 2010 and November 22, 2011 VA treatment records that contained audiometric testing.  The case was also remanded for the Veteran to receive another VA examination.
The Veteran appealed the TDIU denial to the United States Court of Appeals for Veterans Claims (Court).  In November 2016, the Court granted a Joint Motion for Partial Vacatur and Remand filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the matter for readjudication.  The Veteran also received a new VA examination in June 2016.  Additionally, the AOJ attempted to locate his November 2010 and November 2011 audiometric tests, but found no records from the requisite VA treatment center for those dates.  Accordingly, the Board finds there has been substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998). 
In March 2017, the Board denied the Veteran’s claim for a compensable rating for his bilateral hearing loss and denied his TDIU claim.  The Veteran appealed to the Court.  In a March 2018 memorandum decision, the Court vacated the Board’s June 2016 decision and remanded the matter to the Board for further development and readjudication.  The Court concluded the Board failed to consider whether an extraschedular rating was warranted for the Veteran’s bilateral hearing loss based on the psychological symptoms the Veteran reported.  Additionally, the Court found that the Board had provided an inadequate statement of reasons or bases for its finding that his bilateral hearing loss and tinnitus had no impact on his employability.  More specifically, the Court found that the Board had failed to assess the probative value of the Veteran’s lay statements and relied solely on the June 2016 VA examiner’s opinion.
Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2018).  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant.  38 C.F.R. § 4.3 (2018).  
Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in January 2009.  Fenderson v. West, 12 Vet. App. 119 (1999).  
Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI (2018).  The assignment of disability ratings for hearing impairment is 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, 349 (1992).  
The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII.  38 C.F.R. § 4.85 (2018).  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86 (2018).  In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII.  Id.  The Veteran in this case does not have an exceptional pattern of hearing loss.
On the VA audiological evaluation in May 2009, pure tone thresholds, in decibels, were as follows: 
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	30	35 	50 	85 	95 
LEFT	 30	25 	45 	75 	90 
The average pure tone threshold was 66 in the right ear and 59 in the left ear.  Speech audiometry revealed speech recognition ability of 98 in the right ear and 96 in the left ear.  The May 2009 VA examiner described the functional effects of the Veteran’s hearing loss on his daily activities.  38 C.F.R. § 4.10 (2018); see also Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  The Veteran reported difficulty hearing women and children’s voices, but his hearing loss had no effect on usual daily activities.  Based on the November 2010 VA examination the Veteran had Level II hearing loss in both ears.
On the VA audiological evaluation in January 2013, pure tone thresholds, in decibels, were as follows: 
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	35	35 	70 	90 	95 
LEFT	 35	35 	60 	80	90 
The average pure tone threshold was 73 in the right ear and 66 in the left ear.  Speech audiometry revealed speech recognition ability of 96 in the right ear and 92 in the left ear.  Based on the January 2013 VA examination the Veteran had Level II hearing loss in both ears.  
The Veteran’s most recent audiological evaluation was at his VA examination in June 2016.  His pure tone thresholds, in decibels, were as follows: 
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	45 	40 	60	75 	95 
LEFT	40 	40 	75 	90 	95 
The average pure tone threshold was 68 in the right ear and 75 in the left ear.  Speech audiometry using the CNC test revealed speech recognition ability of 84 percent in the right ear and of 88 percent in the left ear.  The examination reflected that the Veteran had Level III hearing loss in both ears.
In addition to the audiological evaluates of record, the Board considers the Veteran’s lay statements.  At his December 2011 Board hearing, the Veteran stated that his doctor told him that his hearing was bad and gave him a new hearing aid.  The new hearing aid still was not effective has he continually saying “huh” to people.  He also had problems hearing different pitches and ranges, specifically had trouble with higher pitches.  He had to turn the television up louder and yelled when talking on the phone.  He felt unhappy and frustrated because of his inability to hear and believed his hearing loss caused headaches. 
The three VA examinations demonstrate a worsening of the Veteran’s hearing loss.  However, applying the Veteran’s hearing loss to Table VI and VII, all three examinations result in a noncompensable rating.  38 C.F.R. § 4.85.   
The Veteran has competently and credibly stated that his hearing loss has worsened during the appeal period.  The Veteran is competent to report symptoms such as difficulty hearing conversation and difficulty hearing high pitched sounds and his statements are credible.  At his December 2011 Board hearing, the Veteran credibly reported that he needed to turn the television up higher than normal to hear it, yelled when on the phone, and asked people to repeat themselves in conversation.  The functional impact that the Veteran describes, such as hearing high pitched noises, difficulty hearing conversations, and asking people to repeat themselves, are contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017). Furthermore, as discussed below, the Board instructed the VA to provide the Veteran with a VA examination to determine if the Veteran has an acquired psychiatric disorder or headache disability that are related to his bilateral hearing loss.  Consequently, discussion of whether an extraschedular rating must be considered is not necessary.  See Thun v. Peake, 22 Vet. App. 111 (2008).
His competent, credible subjective report of difficulty hearing cannot be the basis for an increased rating.  The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment.  Based upon the results from examinations discussed above, the Veteran’s disability is best captured by a noncompensable rating.

REASONS FOR REMAND
1. Acquired Psychiatric Disorder and Headache Disorder 
At the December 2011, the Veteran reported psychological symptoms due to his bilateral hearing loss, including feeling unhappy and feeling of depressed.  He also reported experiencing headaches due to his bilateral hearing loss.  In a March 2018 decision, the Court remanded the case for the Board to consider if the Veteran’s bilateral hearing loss disability rating required extraschedular consideration based on his psychological symptoms and headaches.  The Board finds, however, that since both psychiatric disabilities and headaches are covered by separate diagnostic codes in the Rating Schedule, it would be inappropriate to include the effects of these disabilities in an extra-schedular rating for hearing loss.  Rather, the Board will construe the claim as entitlement to secondary service connection for an acquired psychiatric disability and for headaches, as cause dor aggravated by the Veteran’ service-connected hearing loss.  Therefore, the Board finds a remand is necessary to determine if the Veteran should be separately rated for any psychiatric disorder or headache disability he may have due to his bilateral hearing loss. 
2. TDIU
In March 2018, the Court also determined the June 2016 VA examiner’s opinion concerning his bilateral hearing loss and tinnitus inadequate as the examiner failed to provide a rationale for his opinion.  Accordingly, the Board finds a remand is necessary for the VA examiner to provide an opinion on the Veteran’s employability that considers the entire claims file and the Veteran’s lay statements. 
The matters are REMANDED for the following action:
1. Schedule the Veteran for an examination with an appropriate clinician to first determine if the Veteran suffers from any acquired psychiatric disability.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 
If the Veteran is determined to have any acquired psychiatric disorder, the examiner must opine as to the following:
a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disability was caused or aggravated by his service-connected bilateral hearing loss.  
Aggravation is defined as worsening beyond the natural progression of the disability.
A complete rationale must be provided for any opinion offered.
2. Schedule the Veteran for an examination with an appropriate clinician to first determine if the Veteran suffers from a headache disability.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 
If the Veteran is determined to have a headache disorder, the examiner must opine as to the following:
a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s headache disability was caused on aggravated by his service-connected bilateral hearing loss.
Aggravation is defined as worsening beyond the natural progression of the disability.
A complete rationale must be provided for any opinion offered.
3. Provide the Veteran’s claims file to an appropriate clinician to address the functional effects that the Veteran’s service-connected disabilities have on his ability to secure or follow a substantially gainful occupation.  The entire claims file and a copy of this remand must be made available to the examiner for review.  A new examination is only required if deemed necessary by the examiner.  
Based on a review of the claims file, the examiner must provide a functional assessment of each of the Veteran’s individual service-connected disabilities on his ability to work, without consideration of his age or nonservice-connected disabilities.  The examiner must consider all the lay statements by the Veteran discussing his employability.  Specifically, the examiner should consider his December 2011 Board hearing testimony where the Veteran detailed how he had to stop working his job in the automobile business because he could not properly assess the cars or hear the auctioneer.     
The examiner must provide all findings, along with a complete rationale for any opinions provided.

 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Brunot, Associate Counsel  

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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