Citation Nr: 1300767 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-04 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which, in relevant part, denied the Veteran's claim for entitlement to a TDIU. The Board notes that the only issue certified for appellate consideration by the RO is entitlement to a TDIU, which the Veteran contends is due to his only service-connected disabilities of tinnitus and bilateral hearing loss, each of which are currently evaluated as 10 percent disabling. The United States Court of Appeals for Veterans Claims (Court) recently held that a request for TDIU 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. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Because the Veteran argued when he filed his claim for a TDIU that his hearing loss had worsened in severity, the Board finds that the Veteran's claim for a TDIU encompasses a claim for an increased rating for bilateral hearing loss. Thus, the issues on appeal have been characterized accordingly. A review of Virtual VA reveals no records relevant to the claims. FINDINGS OF FACT 1. Audiometric examination corresponds to no greater than a level VI hearing loss for the right ear and a level V hearing loss for the left ear. 2. The Veteran's service-connected disabilities include tinnitus, rated 10 percent disabling and bilateral hearing loss, rated 20 percent disabling; his combined disability rating is 30 percent. 4. The Veteran's service-connected disabilities are not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. From May 30, 2006, the criteria for the assignment of a 20 percent disability rating, but not higher, for a service-connected bilateral hearing loss disability are met. See 38 U.S.CA. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012). 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence in the Veteran's claims file, his Virtual VA file, and his multiple contentions. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in August 2006 of the information and evidence needed to substantiate and complete his claim for entitlement to a TDIU, to include evidence showing that his service-connected disabilities had increased in severity. The letter provided notice of what evidence was to be provided by him, and what part VA would attempt to obtain. It also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as warranted by law, affording him VA examinations. The Veteran underwent a VA general medical examination in May 2997 and a VA audiological examination in June 2007. Those examinations are adequate for the purpose of adjudication of the claims. The examination reports reflect that the May 2007 examiner reviewed the Veteran's reported medical history, and the June 2007 examiner reviewed his reported medical history and his electronic VA treatment records. The examiners recorded his current complaints, conducted appropriate examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examinations in combination with the other evidence of record are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges that the most recent audiological examination of record is dated in 2007. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's hearing loss since he was last examined. The Veteran has not reported receiving any recent treatment specifically for the condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The examination reports are thorough, supported by VA and private treatment records, and provide the data required to appropriately rate the Veteran's service-connected bilateral hearing loss disability and its effects on his occupational functioning as required for his claim of entitlement to a TDIU. There is no rule as to how current an examination must be. Thus, the Board concludes the examinations in this case are adequate upon which to base a decision. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Factual Background In May 2006, the Veteran claimed entitlement to a TDIU due to his service-connected bilateral hearing loss and tinnitus disabilities. He admitted that he had lost many months of work over the years due to non service-connected illness and stated that he was forced to retire due to multiple medical problems, to include his service-connected hearing loss and tinnitus disabilities. He stated that his occupation in law enforcement as a detective was dangerous and absolutely required that he possess normal hearing. From 1993 until 2006, he worked under the auspices of the Narcotics Enforcement Team. His hearing loss affected every aspect of his job. Specifically, it was dangerous for him to be involved in field operation and investigations because he could not hear if someone were behind him or if his life was threatened. Allegedly due to his impaired hearing, he could no longer function in that capacity and he was eventually assigned a desk job with the narcotic division's office. He experienced continued problems due to hearing loss as his duties required that he conduct interviews where he had difficulty understanding verbal communications and obtaining valid information even with hearing aids. Ultimately, he was no longer able to perform the law enforcement-related occupational duties required of him. He stated that his hearing loss had severely worsened through the years to the point that it affects every aspect of his life. He last worked full time on October 5, 2005. In a subsequent May 2006 claim for service connection for fibrosis, the Veteran indicated that he is totally disabled due to pulmonary and subsequent heart problems. VA treatment records dating since September 2003 show that at that time, the Veteran had a hearing deficit, however, his ability to communicate was within normal limits. During an October 2005 history and physical, it was noted that the Veteran had been diagnosed with chronic obstructive pulmonary disease and he was afraid that he would no longer be able to work. It was noted that he received private impatient treatment on October 8, 2005, and at the time of discharge, treatment included home oxygen. Without oxygen, he could only walk about fifty feet before getting out of breath. He had difficulty helping with household chores and was completely exhausted after showering and getting ready for bed. Such symptoms had been progressing over the past year. "Slight decreased hearing" was noted during clinical neurological evaluation at that time. It was noted that he had not been able to work since his October 2005 hospitalization and that he would need to discontinue working if he was continued on oxygen treatment. Private treatment records reflect that the Veteran received inpatient treatment from October 8-11, 2005 due to a four day history of wheezing, coughing and a fever. Hypoxemia one day prior to his discharge resulted in his need for continued at home oxygen use following his discharge from inpatient treatment. Significantly, discussion with the Veteran's wife indicated that his breathing problems seemed to worsen during work where he was exposed to the odor of things like marijuana and other substances as a caretaker of the evidence department in the Sheriff's Office. He also did many other jobs as part of his occupation and there was question as to his ability to carry out his functions with his respiratory problems this size and his joint and back problems. Discharge diagnoses included acute asthmatic bronchitis that did not respond to outpatient therapy, secondary shortness of breath, a possible allergy to odors/agents in his work environment, dyslipidemia, hypoxemia, and others as per his past medical and surgical history (negative for hearing loss). The Veteran was again admitted for private inpatient treatment on November 1, 2005, for acute asthmatic bronchitis that had not responded to outpatient therapy since October. Treatment records noted diminished auditory acuity which his wife said was worse even with use of hearing aids. It was again noted that breathing problems seemed to be triggered by environmental agents that he may be exposed to occupationally. Two days later, his discharge diagnoses included pneumonia, cardiomegaly, leukocytosis secondary to pneumonia, hypokalemia and hyponatremia secondary to dieresis, and hypoproteinemia. In December 2005, a VA primary care record noted a history of hearing loss for which the Veteran used a hearing aid. He had marked problems with conversation. During a subsequent December 2005 VA audiology consultation, the Veteran complained of decreased hearing with insufficient volume in his left hearing aid and constant bilateral tinnitus. He stated that he was retiring from his job as a police officer that week because he felt that his hearing had decreased to the point where he no longer felt comfortable working. Puretone audiometric testing revealed a mild sharply sloping to severe sensorineural hearing loss bilaterally and word discrimination scores were "good" at 96 percent in the right ear and 92 percent in the left ear, respectively. It was noted that the Veteran would likely experience communication difficulties in most listening environments and hearing aids were recommended for effective medical management. Face-to-face communication at close speaking distance was also recommended. New hearing aids were ordered the left hearing aid was found to be defective and sent for repair. In March 2007, a statement received from the Veteran noted post-service occupations as a truck driver and in law enforcement. In May 2007, the Veteran was afforded a VA general medical examination in connection with his claim of entitlement to a TDIU. Following physical examination, his diagnoses included hearing impairment, a pancreatic islet cell tumor status-post surgical removal with residual diabetes mellitus, L5-S1 foraminal stenosis with a left herniated disc and mild to moderate degenerative disc disease of the lumbar spine, hypertension, chronic obstructive pulmonary disease, sleep apnea, erectile dysfunction and gastroesphageal reflux disorder. With the exception of the diagnosed lumbar spine disorders, the examiner opined that the aforementioned diagnoses and conditions would not affect the Veteran's ability to perform physical or sedentary employment. Regarding the lumbar spine disorders, the examiner opined that they would affect the Veteran's ability to perform physical but not sedentary employment. Regarding the Veteran's diagnosed hearing impairment, the examiner stated that he was doing well with use of hearing aids and there were no effects on his activities of daily living. The examiner requested that an audiology examination be performed and he deferred to the audiologists opinion regarding any impairment in the Veteran's occupational functioning due to hearing loss. The Veteran underwent a VA audiology examination in June 2007. Puretone audiometric testing revealed a mild sloping to moderate severe sensorineural hearing loss in the right ear and a mild sloping to moderate severe sensorineural hearing loss in the left ear. Maryland CNC speech recognition scores were 88 percent bilaterally. The examiner opined that the Veteran's hearing loss alone should not render him unemployable. She stated that gainful employment may be possible with state of the art amplification, assistive technology, vocational rehabilitation, or medical intervention. In March 2008, the Veteran stated that he is unemployable solely due to his bilateral hearing loss. He stated that his profession required that he hear with acuity to prevent danger to himself and his partners. Even with the use of state-of-the-art amplification, he indicated that he still did not have adequate hearing which his job required. He stated that hearing aids cannot be used in all environments such as in extremely humid conditions causing perspiration which caused his hearing aids to omit a high pitched squeal which was not okay during required covert activities. He stated that his inability to hear forced him into early retirement and has affected every aspect of his livelihood and profession. He felt that the record submitted made that point clear. In August 2008, a statement received from Sheriff JMT indicated that during the course of the Veteran's twelve and a half years of employment with the Sheriff's Office, he observed his hearing decrease significantly. He moved the Veteran to several different jobs to eliminate any danger posed to himself and his co-workers. He personally observed the Veteran become unable to perform law enforcement tasks due to his very significant hearing loss. He felt that the Veteran created a substantial risk to himself and his fellow officers prior to his disability retirement. Additionally, a Statement of Employment Information received from Sheriff JMT stated that the Veteran worked full-time at the Sheriff's Office where he performed law enforcement type work since September 1993. His last date of employment was December 31, 2005. He was moved to administrative type duties on an unspecified date due to his inability to perform law enforcement related duties. He had missed thirty days during the last year of his employment. He retired on disability due to "health" and he received disability retirement benefits. In February 2009, the Veteran asserted that the medical evidence and statements from his past employer show that he had to retire due to his service-connected hearing loss disability. Analysis I Increased Rating Historically, service connection was granted for a left ear hearing loss in 1996 and a right ear hearing loss and tinnitus in 1997. As noted in the Introduction, the current appeal stems from a May 2006 claim for entitlement to a TDIU wherein the Veteran asserted that his hearing loss had worsened significantly. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz; and 70 decibels or more at 2000 Hertz). 38 C.F.R. § 4.86. In this case, the only audiometric testing during this appeal occurred during the June 2007 VA audiological examination. On that occasion, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 70 70 70 70 LEFT 65 65 65 60 Puretone threshold averages were 70 decibels in the right ear and 64 decibels in the left ear. Speech audiometry showed a speech recognition ability of 88 percent bilaterally. Application of the results from the June 2005 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level III hearing loss bilaterally. Where hearing loss is at level III bilaterally, a 10 percent evaluation is assigned under Table VII. 38 C.F.R. § 4.85 (2012). Additionally, because the puretone threshold at each of the four specified frequencies is 55 decibels or more bilaterally, findings on this examination warrant consideration under 38 C.F.R. § 4.86 for an exceptional pattern of hearing impairment. Under these circumstances, the rating specialist is to determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. Application of the results from the June 2007 examination to Table VIa in 38 C.F.R. § 4.86 yields findings of Level VI hearing loss in the right ear and Level V hearing loss in the left ear. Where hearing loss is at Level VI in the worse right ear and Level V in the better left ear, a 20 percent evaluation is assigned under Table VIa. 38 C.F.R. § 4.86 (2012). The Board finds that the Veteran's bilateral hearing loss warrants a 20 percent rating. Based upon the rating criteria for exceptional patterns of hearing impairment, under table VIa, the Veteran's right ear, at its worst, has a designation of VI, and his left ear, at its worst, has a designation of Level V. Under Table VII, his bilateral hearing impairment warrants a 20 percent evaluation effective May 30, 2006, which is the date of receipt of the claim in which the Veteran first reported that his hearing loss had increased significantly. 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. The Board has considered the lay statements provided by the Veteran. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, there is no evidence of a change in the Veteran's hearing since the June 2007 VA examination and, therefore, nothing to suggest that an additional VA examination would be beneficial. The probative medical evidence does not show the Veteran's hearing loss has ever reached the criteria necessary for an evaluation in excess of 20 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected hearing loss are inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports difficulty understanding speech in certain situations. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. The simple fact that the Veteran's hearing disability does not satisfy the numerical criteria for the assignment of disability rating in excess of 20 percent under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. II. TDIU It is the established policy of VA 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "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." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities resulting from common etiology are considered as one disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). The Veteran in this case is service-connected for the following disabilities: tinnitus, rated as 10 percent disabling and bilateral hearing loss, rated as 20 percent disabling. His combined rating is 30 percent. Thus, he does not meet the minimum schedular requirements for TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Services, 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 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). On review of the record, the Board finds the Veteran is not unemployable by reason of his service-connected hearing loss and tinnitus disabilities and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus unwarranted. The Veteran has maintained that he is unemployable due to the effects of his service-connected bilateral hearing loss and tinnitus and his non service-connected pulmonary and heart conditions. The record contains contemporaneous medical evidence and opinions that he is not unemployable solely due to his bilateral hearing loss and tinnitus disabilities. Specifically, the Veteran's May 2006 claim states that the date that he last employed full time was October 5, 2005. This date corresponds with the October 2005 inpatient treatment records that show that he was hospitalized on October 8, 2005, for respiratory illness and he reported that he had been sick with a respiratory illness since approximately four days prior. Treatment records during this time show that occupational environmental conditions aggravated his respiratory condition. At that time, there was question as to his ability to carry out his occupational functions with his respiratory problems and his joint and back problems for which service connection is not in effect. There was no mention of his bilateral hearing loss and tinnitus disabilities. He was again hospitalized for a non service-connected respiratory condition in November 2005 and it was again noted that environmental agents at work seemed to aggravate his respiratory condition. Although it was noted that the Veteran had impaired hearing, even with use of hearing aids, there was no mention that his hearing loss affected his occupational functioning. Although December 2005 VA treatment records note that the Veteran experienced marked problems with conversation, and the Veteran indicated that he was quitting work due to his hearing loss, his left hearing aid was also found to be dysfunctional at that time. Moreover, as previously noted in his claim for a TDIU, he had not worked full-time since more than two months prior and the contemporaneous medical treatment records strongly suggest that it was due to non service-connected disability as opposed to service-connected bilateral hearing loss and tinnitus. Further, which a December 2005 audiological consult indicated that the would likely experience communication difficulties in most listening environments, the audiologist stated that hearing aids were recommended for "effective medical management." Finally, at the time of the May 2007 VA general medical examination, the examiner noted that the Veteran's hearing loss seemed to be doing well with his use of hearing aids. He also found that the Veteran's non service-connected lumbar spine disorders would affect his ability to perform physical but not sedentary employment. Moreover, the audiologist who conducted the June 2007 audiological examination opined that the Veteran's hearing loss alone should not render him unemployable. She stated that gainful employment may be possible with state of the art amplification, assistive technology, vocational rehabilitation, or medical intervention. The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. In reaching this conclusion, the Board has considered the Veteran's and his employer's lay assertions that his service-connected hearing loss and tinnitus disabilities render him unable to work. However, the Board finds the credibility of those assertions to be questionable given that it conflicts with the contemporaneous medical evidence of record showing that he stopped working in full time due to a respiratory disability. Moreover, the Veteran's supervisor has stated that the Veteran was forced to retire due to hearing loss, however, the August 2006 employment information statement submitted by his supervisor cites "health" for the cause of the Veteran's disability retirement. While the Board acknowledges that the word "health" can certainly encompass hearing loss, the Board finds such an intent highly unlikely given the circumstances surrounding the Veteran's health picture at the time of his retirement. In this regard, the Board recognizes that the Veteran is competent to describe his symptomatology, to include the symptoms and limitations posed by his service-connected hearing loss. Additionally, his supervisor is competent to report his first hand observations suggesting that the Veteran's hearing deteriorated during his employment. However, given the various nonservice-connected disabilities present, the Board places far more probative weight on the comtemporaneous medical evidence and the opinions of the May and June 2007 VA general medical and audiological examiners in determining whether his service-connected hearing loss and tinnitus disabilities render him unemployable. As noted, the VA examiners undertook a detailed review of his documented medical records and performed complete medical and audiological examinations. Thereafter, the audiologist opined that the Veteran's hearing loss and tinnitus alone should not render him unemployable. Moreover, while it may be true that the Veteran's hearing loss and tinnitus interfered with his occupational functioning in law enforcement related duties, it has not been shown by the credible evidence that those disabilities, either alone or in combination, prevent him from engaging in all types of full-time employment. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU at any time, and that referral for consideration of entitlement to TDIU on an extraschedular basis is not required. In sum, the Board has found the Veteran to not be unemployable due to service-connected disabilities. Accordingly, the criteria for referral of the claim for consideration of a TDIU on an extraschedular basis are not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER From May 30, 2006, entitlement to a 20 percent evaluation, but not higher, for bilateral hearing loss is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs