Citation Nr: 1316281 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 13-04 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from March 1952 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January and September of 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that remand of the Veteran's claim is warranted for additional development. Specifically remand is needed to obtain a VA ear, nose and throat (ENT) examination and medical opinion regarding the Veteran's employability from an ENT specialist. The Veteran was service-connected for bilateral hearing loss and tinnitus effective May 26, 2010. At that time, his bilateral hearing loss was evaluated as 60 percent disabling and his tinnitus was evaluated as 10 percent disabling for a combined disability rating of 60 percent. In a February 2012 rating decision, the RO reduced the disability rating for the Veteran's bilateral hearing loss from 60 percent to 50 percent; however, the combined rating remained 60 percent. The Veteran did not appeal this reduction. The Veteran is now seeking a TDIU claiming he cannot work because of his bilateral hearing loss and tinnitus. The evidence shows the Veteran has a high school diploma. According to his DD 214, prior to service the Veteran was employed as a bulldozer operator from 1949 to 1952. In service, he was in the Army Artillery and served with B Battery, 10th Antiaircraft Artillery Automatic Weapons Gun Battalion at Fairchild Air Force Base in Washington. From January 1968 until May 1993, the Veteran worked for a Ford dealership as its service manager. He retired in May 1993 and he has not been employed since then; nor has he sought employment claiming that no employer would hire him with his severe service-connected disabilities. The Veteran initially underwent VA audiological examination in conjunction with his claim for service connection in July 2010. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 70 100 105 LEFT 40 50 85 110 120 Puretone threshold averages were 77.50 decibels in the right ear and 86.25 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 48 percent in the right ear and of 50 percent in the left ear. The Veteran underwent a second VA audiological examination in September 2011, in conjunction with his claim for a TDIU. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 75 90 100 LEFT 40 45 80 95 115 Puretone threshold averages were 73.75 decibels in the right ear and 83.75 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 76 percent in the right ear and of 44 percent in the left ear. The VA examiner noted that there was "significant effects" on occupation and that the disability's impact on occupation activities was "hearing difficulty." She did not, however, discuss the specific functional effects the Veteran's hearing loss and tinnitus would have on his occupational and social/recreational activities. In rendering an opinion as to the Veteran's employability, the examiner opined that unemployability due to hearing loss and tinnitus is not caused by or a result of acoustic trauma during military service. Her reasoning was that there is nothing related to hearing loss or tinnitus to preclude gainful employment. The Board does not find the examiner's reasoning to be adequate because it is summarily stated without sufficient explanation as to why gainful employment is not precluded. In addition, in September 2011, the Veteran underwent a VA general medical examination. Although in the history and physical examination parts of his report, the examiner did not discuss the Veteran's hearing loss and tinnitus, he only provided a diagnosis of hearing loss. In commenting on the Veteran's employability, the examiner noted that the Veteran is seeking unemployability because of hearing loss and stated that he cannot talk on the phone. The examiner noted that the Veteran's claims file had been reviewed, and his audiologic exam was interpreted as mild-to-profound sensorineural hearing loss and poor speech discrimination. He noted, however, that the Veteran was able to converse in a normal tone using hearing aids and, with the hearing aids, he was very capable of carrying on with normal tone of conversation in the examiner's office. Although the Veteran stated he cannot talk on the phone, the examiner opined that he would be capable of sedentary employment at a job that did not require phone use. Although the examiner clearly felt the Veteran was able to communicate well with his hearing aids on a face-to-face basis, the Board notes that there is no indication that this examiner had any special expertise in determining the Veteran's residual functioning due to his hearing loss. In support of his claim, the Veteran submitted a statement in November 2010. This statement was clearly written for him as it is stated in the third person; however, it states that, even with his new hearing aids, he does not hear but maybe one quarter of what is said and, because of this, he is unaware of much that goes on around him. In addition, in support of his claim, the Veteran submitted the October 2011 report of a private audiologist who conducted an audiological examination and gave an opinion as to the Veteran's occupational functional capacity. Her impression after the audiological evaluation was that the Veteran has mild to profound sensorineural hearing loss bilaterally with very poor speech discrimination. In her report, she indicated that speech reception thresholds were obtained at 20 decibels bilaterally. Word recognition was 36 percent in the right ear and 40 percent in his left ear when using the Maryland CNC test. She stated that the Veteran's severe hearing loss poor word recognition have essentially rendered him unemployable in her opinion. She stated he needs to avoid working in any environment in which there is noise, which may exacerbate his hearing loss. He should also avoid any environment which requires normal hearing or good speech understanding. Additionally, these limitations would prevent verbal communication face-to-face as well as by telephone. She further stated that his condition would pose a significant safety risk in any job involving transportation/driving or being around heavy or moving machinery. She concluded that the Veteran's service-connected hearing loss would significantly impair his employability in most job assignments without adaptation. In January 2012, the RO returned the Veteran's claims file to the VA audiologist who conducted the September 2011 VA examination and asked her to consider whether the difference in speech discrimination scores shown by the private audiologist represent a significant deterioration in the Veteran's speech recognition. In response, the September 2011 VA examiner opined that the decreased word recognition on the private examination is not caused by or a result of significant deterioration in auditory acuity/speech recognition. She stated that the difference in those obtained by the private audiologist and those obtained at the September 2011 VA examination is not due to physiological changes within the Veteran's auditory system but rather are due to presentation level for the word lists. She stated that a performance intensity function was not obtained on the private examination and best word recognition performance was not obtained. The presentation level was 60 dBHL and his auditory threshold at 2000 Hz is 70-75 dBHTL. She indicated that testing protocol requires a performance intensity function be performed or that the examiner test at at least a 5 dB sensation level above the worst threshold from 500 -2000 Hz. This was not done on the private exam and thus speech performance was worse. On the VA examination, the best word recognition score was obtained at 85 dBHTL for the right ear and 90 dBHTL for the left ear. Had the private audiologist increased the presentation level of the speech stimuli she would have obtained a higher recognition score. The decreased word recognition on the private exam is due to insufficient audibility of the speech stimuli, not physiologic deterioration of the auditory system. She concluded by saying that the VA examination should be used for rating purposes because the private examination did not follow speech recognition protocols. The Board understands what the VA examiner is saying; however, it notes that there appears to be a discrepancy between the three examinations of record when it comes to the speech recognition scores. The speech recognition scores obtained by the private audiologist, although still lower, are more consistent with those obtained by the July 2010 VA examiner, while the September 2011 VA examination shows a significantly higher speech discrimination score in the right ear than either of these other examinations (i.e., 76 percent compared to 48 percent in July 2010 and 36 percent in October 2011). However, the speech recognition scores for the left ear, which actually appears to be the Veteran's worst ear, are pretty consistent scores (i.e. 50 percent in July 2010, 44 percent in September 2011 and 40 percent in October 2011). Thus, the September 2011 VA examiner's explanation for the differences between her examination's speech recognition scores and those obtained by the private audiologist does not fully explain the discrepancies between the VA examinations. Thus, the Board finds that a VA ENT examination is warranted to obtain a medical opinion by a specialist that takes into account these inconsistencies and reconciles them and provides a complete rationale as to whether the Veteran is unable to secure or follow substantially gainful employment because of his service-connected hearing loss and tinnitus. In doing so, it is important that the examiner elicit from the Veteran and discuss the functional effects of his service-connected bilateral hearing loss and tinnitus as this has never been fully addressed by previous VA examiners. In doing so, the examiner should also discuss whether the Veteran has the residual functional capacity with accommodation, such as hearing aids, to secure and follow substantially gainful employment. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA ENT examination to be conducted by an ENT specialist. The examiner must review the claims file along with this remand, and such review should be acknowledged in his report. The examiner should elicit from the Veteran information relating to the functional effects his bilateral hearing loss and tinnitus has on his daily activities, including work and social/recreational activities. In his/her report, the examiner should fully describe the functional effects caused by the Veteran's service-connected bilateral hearing loss and tinnitus, specifically the impact any such effects have on the Veteran's employability. Such functional effects may include, but are not limited to, whether, and to what extent, the Veteran's hearing loss and tinnitus decrease his ability to communicate effectively with other people and whether the Veteran requires the assistance of another person, lip reading or sign language to carry on conversations with other people. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities (i.e., bilateral hearing loss and tinnitus), either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. In doing so, the examiner is asked to reconcile the apparent inconsistencies among the prior examinations with regards to the Veteran's speech discrimination scores. He should also discuss the Veteran's residual functional capacity after accommodation and discuss how this would affect his employability. The examiner is advised that "substantially gainful" employment means work that is more than marginal and permits an individual to earn a "living wage" consistent with his education and occupational experience. A complete explanation should be given of the reasons for any opinion expressed and conclusions reached set forth in a legible report. 2. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).