Citation Nr: 1317779 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 12-18 120 ) 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 disability (TDIU) between December 9, 2009, and June 2, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to December 1945. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2011 rating decision in which the RO denied the benefit sought on appeal. The Veteran filed a notice of disagreement in May 2011. A statement of the case was issued in July 2012 and the Veteran perfected his appeal with the filing of a substantive appeal the same month. In July 2011, during the pendency of the appeal, the RO awarded an increased 100 percent schedular rating for service-connected bilateral hearing loss effective June 3, 2011. The award rendered the request for TDIU from that date forward moot, and warrants recharacterization of the claim remaining on appeal as one TDIU for the limited period reflected on the title page. In April 2013, a Deputy Vice Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). A May 2013 review of the Virtual VA paperless claims processing system did not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. For the period from December 9, 2009, to June 2, 2011, service-connected bilateral hearing loss was rated as 90 percent disabling, and tinnitus was rated as 10 percent disabling; as of December 9, 2009, the combined rating was 90 percent. 2. For the period in question, the Veteran met the percentage requirements for award of a schedular TDIU, and the overall evidence suggested that his service-connected disabilities-primarily hearing loss-precluded substantially gainful employment, employment consistent with his educational and occupational background. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for the award of a TDIU rating by reason of service-connected hearing loss and tinnitus, for the period from December 9, 2009, to June 2, 2011, are met. 38 U.S.C.A. §§ 501, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development requirement, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary waste of VA time and resources. Factual Background Service connection for hearing loss was established in a July 2003 rating action, at which time a 40 percent rating was assigned, effective from August 2002. The award was based, in part, on findings made upon VA examination of June 2003. That examination report indicated that the Veteran had difficulty hearing female voices and had worn hearing aids for several years. Average puretone air conduction thresholds for the 1000, 2000, 3000, and 4000 hertz frequencies was 79 in the right ear and 81 in the left ear. Speech audiometry revealed speech recognition ability of 64 percent in the left ear, and 68 percent in the right ear. Severe, profound, bilateral sensorineural hearing loss in all frequencies above 1,000 hertz was diagnosed. In a November 2003 rating action, service connection was established for tinnitus, for which a 10 percent rating was assigned effective from August 2002. On December 9, 2009, the Veteran filed an increased rating claim for hearing loss, indicating that the disability had increased in severity since last evaluated. The Veteran underwent VA audiological evaluation in January 2010. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT XX 40 95 100 105 LEFT XX 55 105 110 110 Average puretone air conduction thresholds for the 1000, 2000, 3000, and 4000 hertz frequencies was 85 in the right ear and 95 in the left ear. Speech audiometry revealed speech recognition ability of 30 percent in the left ear, and 40 percent in the right ear. Profound, bilateral sensorineural hearing loss was diagnosed. The VA audiologist indicated that the Veteran's hearing loss caused severe communication problems and the need for hearing aids. Tinnitus was described as mild. In a January 2010 rating action, an increased evaluation of 90 percent was assigned for hearing loss, effective from December 9, 2009, the date of the increased rating claim. In November 2010, the Veteran filed a TDIU claim, on a VA Form 21-8940. He indicated that his profound hearing loss prevented him from securing or following a substantially gainful occupation. He indicated that he had last worked full-time in February 1989 as a regional sales manager. The Veteran further indicated that the Veteran had a college education and no further training. Another VA audiological evaluation was conducted in February 2011. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT XX 50 100 100 100 LEFT XX 65 105 105 105 Average puretone air conduction thresholds for the 1000, 2000, 3000, and 4000 hertz frequencies was 88 in the right ear and 95 in the left ear. Speech audiometry revealed speech recognition ability of 44 percent in the left ear, and 32 percent in the right ear. Moderate to profound, bilateral sensorineural hearing loss with poor speech recognition was diagnosed. In a March 2011 rating action, a 90 percent evaluation for bilateral hearing loss was continued. The file contains a June 2011 report from a private hearing health care center indicating that the Veteran had been seen on June 2011, for an audiometric evaluation. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT XX 70 100 105 105 LEFT XX 75 110 110 110 Average puretone air conduction thresholds for the 1000, 2000, 3000, and 4000 hertz frequencies was 95 in the right ear and 101.25 in the left ear. Speech audiometry revealed speech recognition ability of 4 percent in the left ear, and 20 percent in the right ear. Severe to profound, bilateral high frequency hearing loss was diagnosed. In an addendum provided on July 7, 2011, it was noted that the Veteran was experiencing more difficulty understanding conversations. The doctor of audiology opined that the Veteran's severe to profound hearing loss and bilateral tinnitus had essentially rendered him unemployable. It was explained that the Veteran needed to avoid working in any environment in which there was noise which could exacerbate his hearing loss. It was observed that these limitations would prevent verbal communication face-to-face, as well as by telephone, even with the use of amplification. It was also noted that his condition would pose a safety risk in any job setting involving transportation/driving, or being around heavy or moving machinery. The doctor summarized that the Veteran's hearing loss would significantly impair his employability in most job assignments with or without adaptation and/or amplification. In a July 2011 rating action, the RO granted the maximum, 100 percent rating for bilateral hearing loss, effective June 3, 2011. A VA evaluative report for purposes of unemployability was issued in June 2012. The Veteran indicated that he worked at a paint store as a salesman for 38 years, until he retired in 1989. He stated that he had difficulty hearing during his entire sales career and described his retirement as mandatory pursuant to company policy, which was not his choice and not the result of his hearing loss. During much of the interview, the Veteran wore ear insert phones, with some difficulties conversing. The audiologist summarized that the Veteran had demonstrated that he felt, at the time of his retirement, that he could have kept working if not prohibited by policy. The audiologist concluded that he saw no reason that this would prevent the Veteran from obtaining and holding employment based on hearing loss. Analysis The Veteran is in receipt of service-connected compensation benefits for hearing loss and tinnitus. He was granted a 100 percent schedular rating for bilateral hearing loss in a July 2011 rating decision, effective from June 3, 2011 forward. The Veteran contends that a TDIU should be awarded prior to the assignment of the 100 schedular rating, going back to the date of the increased rating claim for hearing loss, filed on December 9, 2009. A TDIU rating is assigned, where the schedular rating is less than total, when service-connected disabilities result in such impairment of mind or body that the average person is so disabled that he is precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(a), the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability are met and in the judgment of the rating agency such service-connected disability renders the Veteran unemployable. Here, for the period in question, service connection was in effect for bilateral hearing loss, rated as 90 percent disabling, and tinnitus, rated as 10 percent disabling. As of December 9, 2009, the combined rating was 90 percent. Thus, for the period in question, the percentage requirements of 38 C.F.R. § 4.16(a) clearly were met. 38 C.F.R. § 4.25, 4.26. Thus, the remaining question is whether, for this time frame, the Veteran's service-connected disabilities-primarily hearing loss-rendered him unable to obtain to obtain or retain substantially gainful employment. The central inquiry is whether a veteran's service-connected disabilities, alone, are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In adjudicating a claim for benefits, VA is responsible for determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the above, the Board finds that the collective evidence suggests that, during the period in question, the Veteran was essentially rendered unemployable primarily by reason of his service-connected bilateral hearing loss., Significantly, the record documents that the Veteran was a salesman with a college education. He last worked full-time in 1989, and his retirement was mandatory in accordance with company policy. The Veteran indicated on his November 2010 application for TDIU that his profound hearing loss prevented him from securing or following any substantially gainful occupation. There is no indication that the Veteran sought or was awarded Social Security benefits based on his hearing loss disability. As indicated above, a 90 percent rating was awarded for bilateral hearing loss for the period from December 9, 2009, to June 2, 2011, based on examination findings of January 2010 and February 2011, which revealed profound, bilateral sensorineural hearing loss. A review of the pertinent medical evidence shows that, as early as 2003, the Veteran was wearing bilateral hearing aids. A comparison of VA audiological findings made between 2003 and February 2011, shows a sharp drop in hearing acuity and significantly decreased speech recognition. In January 2010, the examining VA audiologist acknowledged that the Veteran's hearing loss caused severe communication problems and the need for hearing aids. Pursuant to private audiological findings made in June 2011, the schedular criteria for a 100 percent rating for hearing loss were met, effective from June 3, 2011. The doctor of audiology also opined that the Veteran's severe to profound hearing loss and bilateral tinnitus had essentially rendered him unemployable. It was also noted that his condition would pose a safety risk in any job setting involving transportation/driving, or being around heavy or moving machinery. The doctor summarized that the Veteran's hearing loss would significantly impair his employability in most job assignments with or without adaptation and/or amplification. In essence, the reasoning provided by the private doctor of audiology in June/July 2011, is equally applicable to findings of profound hearing loss made by VA in January 2010 and February 2011, which revealed just slight better hearing acuity and speech recognition; but still of such severity to be assessed as 90 percent disabling. Logically, the same limitations as discussed in the private medical report of June and July 2011 which supported the assignment of a 100 percent rating, are applicable to audiological findings made from January 2010, forward, during which time 90 percent disabling hearing loss was shown. By contrast, the file contains the June 2012 opinion of a VA audiologist to the effect that the Veteran had demonstrated that he felt, at the time of his retirement, that he could have kept working if not prohibited by policy. The audiologist concluded that he saw no reason that this would present the Veteran from obtaining and holding employment based on hearing loss. Inadequate medical examinations contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the VA audiologist failed to acknowledge that the Veteran had retired in 1989, many years prior to the time period at issue, and during a time when presumably his hearing acuity and speech recognition were far better than that demonstrated in 2010 and 2011 (see 1993 VA audiological examination results supporting this statement). Further, the audiologist failed to discuss the degree of severity of the 2010 and 2011 hearing impairment and speech recognition deficit shown on VA examinations, as demonstrated itself by the assignment of a 90 percent disability rating. The audiologist also failed to address or refute the findings of limitations and risks associated with the Veteran's profound hearing loss, which led the private doctor of audiology to determine the Veteran unemployable in a 2011 statement. In essence, the Board finds the most probative evidence in this case to consist of the VA audiological findings made in January 2010 and February 2011, and the private medical evaluations and opinions provide by a private doctor of audiology in June and July 2011. Essentially, the record reflects that the Veteran has had profound hearing loss since the time of the filing of his increased rating claim for bilateral hearing loss on December 9, 2009. For the time period extending from December 9, 2009 to June 2, 2011, it has been acknowledged by a VA examiner that hearing loss caused severe communication problems and the need for hearing aids. Private medical findings and opinions dated in June and July 2011, reveal evidence of only slightly decreased hearing impairment from that shown in 2010 and earlier in 2011, and an opinion to the effect that the Veteran was unemployable, particularly in light of the limitations and risks associated with his profound hearing impairment. The only opinion on file which suggests that the Veteran had some type of capability for employment during the period at issue was not based upon consideration of the aforementioned private evidence of record, the 2010 and 2011 VA audiological findings, or the fact that the Veteran had not worked since 1989, and had experienced a substantial decrease in hearing acuity and speech recognition since that time. Given the evidence and the medical opinions already of record, the Board concludes that the evidence is, at least, in relative equipoise on the unemployability question. Accordingly, further evidentiary development is not necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). When, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. With resolution of all reasonable doubt in the Veteran's favor, the Board finds that assignment of a TDIU rating, by reason of the service-connected bilateral hearing loss and tinnitus, is warranted for the period from December 9, 2009, to June 2, 2011, accordingly, to this extent, the appeal is granted ORDER The claim for a TDIU, for the period from December 9, 2009, to June 2, 2011, is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs