Citation Nr: 21040694 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-49 545 DATE: July 6, 2021 ORDER For the period of the claim prior to September 19, 2016, entitlement to a rating in excess of 90 percent for bilateral hearing loss is denied. From September 19, 2016, entitlement to a 100 percent rating for bilateral hearing loss is granted. From September 19, 2016, entitlement to special monthly compensation under 38 U.S.C. § 1114(k) for deafness is granted. From July 9, 2014, entitlement to a total compensable disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. For the period of the claim prior to September 19, 2016, the probative evidence revealed hearing impairment no worse than Level IX in the right ear and Level XI in the left ear. 2. Beginning September 19, 2016, the Veteran's hearing impairment manifested in total deafness, with Level XI hearing impairment in both ears. 3. From the date of claim for increase for hearing loss, the probative evidence of record demonstrates that his service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. For the period of the claim prior to September 19, 2016, the criteria for a rating in excess of 90 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). 2. Beginning September 19, 2016, the criteria for a 100 percent rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.86, Diagnostic Code 6100 (2020). 3. Beginning September 19, 2016, the criteria for special monthly compensation based on deafness in both ears have been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(5). 4. From July 9, 2014, the schedular criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (a), 4.18, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to December 1967. These matters come before the Board of Veterans' Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran and his daughter testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. Entitlement to a disability rating for bilateral hearing loss in excess of 90 percent for the period of the claim prior to January 1, 2019 2. Entitlement to a disability rating for bilateral hearing loss in excess of 80 percent from January 1, 2019 to August 6, 2019 Service connection for bilateral hearing loss was established in an October 2012 rating decision and assigned a 50 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective October 20, 2011. The Veteran filed the present claim for an increased rating for bilateral hearing loss in July 2014. In the March 2015 rating decision that is the subject of this appeal the RO assigned a 90 percent rating, effective July 9, 2014. In a September 2017 rating decision, the RO proposed a reduction in the rating for bilateral hearing loss from 90 percent to 80 percent from January 1, 2019 due to a finding of clear and unmistakable error, noting that an 80 percent evaluation for hearing loss should have been assigned at the time of the March 2015 rating decision. It was noted that audiometric test findings during the March 2015 VA examination were improperly reported on the rating decision as 105 decibels at the 3000 Hertz frequency in the right ear rather than 100 decibels, and that additional medical records do not support a higher evaluation. An October 2018 rating decision then reduced the rating for bilateral hearing loss from 90 percent to 80 percent, effective January 1, 2019 (the first of the month following 60 days from the date of the October 2018 rating decision). The Veteran did not file a notice of disagreement with that decision, and the rating reduction issue is not before the Board. However, the appeal for an increased rating remains pending during that period. In an August 2019 decision, the RO denied a rating higher than 90 percent prior to January 1, 2019 and 80 percent prior to August 6, 2019; granted a 100 percent evaluation for bilateral hearing loss, effective August 6, 2019; and granted entitlement to special monthly compensation (SMC) based on deafness in both ears under 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(5), effective August 6, 2019. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). See 38 C.F.R. § 4.85. To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness. See 38 C.F.R. § 4.85 and Tables VI, VIA, and VII (Diagnostic Code 6100). Section 4.86 provides an alternative rating method which may be used for certain defined "exceptional patterns of hearing impairment." 38 C.F.R. § 4.86. An examination for hearing loss must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC test) and a puretone audiometry test. 38 C.F.R. § 4.859(a). Examinations must be conducted without the use of hearing aids. Notably, section 4.85(c) indicates that Table VIA, "Numeric designation of Hearing Impairment Based Only on Puretone Threshold Average," will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. The Veteran seeks a maximum (100 percent) disability rating for his bilateral hearing loss for the period on appeal. He asserts, in essence, that a higher rating should be assigned prior to August 6, 2019 because he is and has been legally deaf in both ears since before August 2019 and requires the use of cochlear implant in his left ear since 2014 and right ear since November 2016, prior to which time he wore hearing aids. See November 2020 Board hearing transcript and March 2015, October 2016, September 2017 and August 2019 statements. He further testified that he was unable to hear anything during the March 2015 VA examination without the use of his cochlear implants and stopped driving an automobile because he could not hear the traffic. The Veteran's daughter testified that the Veteran could not understand any spoken language prior to receiving his cochlear implants; that she did not initially realize the severity of the Veteran's hearing loss because the Veteran had been reading lips to understand; and that the Veteran could not hear the March 2015 VA examiner unless they were facing one another. The Veteran further asserts that his hearing loss did not improve at the time of the rating reduction and when implementing the reduction the RO should have considered the severity of his hearing loss in the higher puretone thresholds as shown by word recognition scores during the March 2015 VA examination. See October 2017 statement and November 2020 Board transcript. After reviewing the record, the Board finds that an increased rating for bilateral hearing loss in excess of 90 percent from July 9, 2014 to September 19, 2016 is not warranted. During the March 2015 VA examination, audiometric testing revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 80 100 100 105+ 96 LEFT 105+ 105+ 105+ 105+ 105 The examiner noted that speech recognition testing using the Maryland CNC word list could not be performed in either ear due to language difficulties, cognitive problems, and/or inconsistent word recognition scores that make combined use of puretone average and word recognition scores inappropriate. Thus, based on only puretone threshold averages as permitted under Table VIA of the Rating Schedule, the puretone threshold results during the March 2015 audiometric testing correspond with a numeric designation of Level IX hearing impairment in the right ear and Level XI in the left ear. Where hearing loss is at Level IX in one ear and Level XI in the other, an 80 percent rating is assigned under Table VII. 38 C.F.R. § 4.85, Table VIA, VII. The record includes VA treatment records that show the Veteran received cochlear implants in the left ear in June 2014 and in the right ear in November 2016; reported a history of progressively worsening hearing loss since 2011; and show an impression of declining hearing acuity, as noted in March 2014, June 2014 and October 2014 VA treatment reports. Additionally, the Veteran submitted a January 2018 private ear conditions disability benefits questionnaire (DBQ) that indicates a diagnosis of bilateral deafness; the questionnaire did not include audiometric test findings. The Board also reviewed private audiological evaluations in March 2016, September 2016, November 2016 and October 2017 that were submitted by the Veteran that include a notation of bilateral profound sensorineural hearing loss in the 250 to 8000 Hertz frequencies. The March 2016 report accompanying the audiology examination stated that the Veteran was struggling to understand speech and language. However, the private audiometric testing results were in graph form only and do not include a value for 3000 Hertz; thus, they are not valid for rating purposes under 38 C.F.R. § 4.85(a). The Board has carefully reviewed and considered the Veteran's statements regarding the functional impairment of his hearing loss on his daily life, including difficulty hearing sounds and inability to understand speech unless face to face, even with assistive devices; difficulty interacting with others or engaging in church or social activities due to his hearing impairment; and relying heavily on visual cues, lip reading and contextual information to understand conversation, as described during the March 2015 VA examination; VA treatment in March 2014 and June 2014; an private treatment in March 2016. See Martinak v. Nicholson, 21 Vet. App. 447, 454-56 (2007). However, the findings on authorized VA examination are of greater probative value as to the severity and level of impairment of his bilateral hearing loss, and the VA examiner addressed the effects of the Veteran's hearing loss on his daily activities and occupational functioning. See Id. Moreover, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold averages and speech discrimination, or solely on puretone threshold averages when, in cases such as this, speech discrimination testing may not be appropriate. Consequently, the Board predicates its determination based on the results of the valid audiology examination of record, specifically, the March 2015 VA examination for the period prior to September 19, 2016. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As the only valid audiogram for rating purposes was the VA examination in March 2015 for the period prior to September 19, 2016, the most probative evidence is against a rating in excess of 90 percent during this period of the claim. In reaching its determination, the Board considered the Veteran's assertions in his March 2015 notice of disagreement that the March 2015 VA examiner did not conduct a speech recognition test and thus the examination is inadequate. However, as discussed above, the examiner concluded that speech recognition testing was not appropriate in either ear due to language difficulties, cognitive problems, and/or inconsistent word recognition scores. Thus, the March 2015 VA examination is adequate. Turning to the period of the claim from September 19, 2016, the written private report from that date, when considered with the accompanying September 19, 2016 audiogram graph, reflects results consistent with the findings on VA examination in August 2019. In this regard, the report for the private audiological evaluation conducted on September 19, 2016 indicated he was unable to recognize any spoken language without lip reading and was only able to detect the sound at 105 decibels in the right ear with no response in the left ear. The graph results from the audiogram, while not valid for rating purposes, reflect puretone thresholds of 110 decibels or worse at 1000 through 4000 Hertz. Based on those findings, the Veteran received a cochlear implant in his right ear in November 2016. An October 2017 follow-up report noted that without the use of his cochlear implant processing units, the Veteran has no access to environmental sounds or any sounds of speech. An October 2017 audiogram revealed puretone thresholds of 110 or greater at all tested frequencies. The August 2019 VA examination that was the basis for the award of the 100 percent evaluation by the RO revealed puretone thresholds of 105+ decibels in all relevant frequencies bilaterally and a zero percent speech recognition score. Upon review, the Board concludes that the findings on the September 19, 2016 audiological evaluation when considered with the accompanying medical report are fully confirmed by the subsequent August 2019 authorized VA audiometric testing that revealed total deafness in both ears. While the audiometric test results in September 2016 are not valid for rating purposes, the private treatment records from September 19, 2016 and October 2917 also indicate the Veteran suffered from total deafness. Thus, after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's private audiological testing results on September 19, 2016 and in October 2017 were fully confirmed by authorized VA examination on August 6, 2019. As such, it is factually ascertainable that the level of impairment present on VA examination in August 2019 was present on September 19, 2016. Thus, entitlement to a 100 percent rating is warranted from September 19, 2016. 3. Entitlement to SMC under 38 U.S.C. § 1114(k) for deafness Regarding special monthly compensation (SMC) ratings, the Board notes that the rating criteria on Table VII in 38 C.F.R. § 4.85 indicates that entitlement to SMC must be reviewed when the hearing loss disability is rated at 100 percent. Turning to the SMC ratings, a Veteran who, as the result of a service-connected disability has deafness in both ears shall receive SMC under the provisions of 38 U.S.C. § 1114(k). Deafness of both ears "will be held to exist where examination in a Department of Veterans Affairs authorized audiology clinic under current testing criteria shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule." 38 C.F.R. § 3.350(a)(5). As a result of the increased rating above, the Veteran is service-connected for bilateral hearing loss rated at 100 percent disabling from September 19, 2016 forward, which is the equivalent of deafness in both ears for purposes of 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(5). Accordingly, entitlement to SMC (k) based on deafness, is granted from September 19, 2016. 4. Entitlement to a TDIU prior to September 19, 2016 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status may not be considered when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned on a schedular basis when the schedular rating is less than total, when, in the judgment of the rating agency, the disabled person is 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, or 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period on appeal prior to September 19, 2016, the Veteran is service-connected for bilateral hearing loss, rated as 90 percent disabling from July 9, 2014 and tinnitus, rated as 10 percent disabling. The Veteran's combined disability rating of 90 percent meets the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) from July 9, 2014. The record indicates that the claim for a TDIU was raised in a March 2015 VA examination due to his bilateral hearing loss. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran filed a formal claim for a TDIU in November 2020. He testified at the November 2020 Board hearing that he cannot hear any sounds without his bilateral cochlear implants; discerns conversations by reading lips; and quit driving an automobile because he cannot hear traffic. He stated that because of his hearing problems, he was asked to retire early from employment in 2002, rather than be forced to leave the position, and while he later worked in another position for 10 years, he has not been employed in any capacity since 2014. A December 2020 VA Form 21-4192 completed by the Veteran's most recent employer indicated that the Veteran worked full-time as a Reservoir Superintendent from 2004 to 2013 and his employment was terminated in December 2013 due to his hearing problems. The March 2015 VA examiner indicated the Veteran's hearing loss functionally impairs his ability to hear conversation unless face-to-face and prevents social interactions due to his inability to hear sounds when in group situations or with background noise. VA treatment records note the Veteran's hearing difficulties cause him to isolate, avoid social interactions and negatively affect relationships; and that he quit volunteer positions due to difficulty hearing. A March 2016 private audiologist indicated the Veteran struggles to understand speech and language. A September 2016 private audiologist indicated that Veteran was unable to understand any spoken language in the right ear through listening alone even with hearing aids, utilizes spoken language as his primary mode of communication, relies heavily on visual cues, lip reading and contextual information to understand. Thus, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected hearing loss and tinnitus as likely as not render him unable to maintain gainful employment from the July 9, 2014 date of claim for increased rating for hearing loss See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, entitlement to a TDIU is granted, effective July 9, 2014. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.