Citation Nr: 1318366	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  08-15 368	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to a compensable rating prior to February 17, 2011, and a rating in excess of 40 percent as of February 17, 2011, for bilateral hearing loss disability.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 


INTRODUCTION

The Veteran had active military service from August 1961 to July 1964.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2011 and accepted that hearing in lieu of an in-person hearing before a Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

The Board has reviewed the physical claims file and the Virtual VA electronic claims file.

This case has been previously before the Board, most recently in February 2013, at which time the issues on appeal were remanded for additional development.  The case has now been returned to the Board for further appellate action.  


FINDINGS OF FACT

1.  Prior to February 17, 2011, the Veteran's hearing impairment was no worse than Level III in the right ear and Level III in the left ear.  

2.  As of February 17, 2011, the Veteran's hearing impairment has been no worse than Level IX in the right ear and Level VI in the left ear.  

3.  The Veteran is service-connected for bilateral hearing loss disability, rated 0 percent prior to February 17, 2011, and 40 percent as of February 17, 2011.  Tinnitus is also service-connected and rated 10 percent.  

4.  The Veteran's combined disability rating is 10 percent prior to February 17, 2011, and 50 percent as of February 17, 2011.  

5.  The Veteran's service-connected bilateral hearing loss disability and tinnitus alone do not render him unable to obtain and maintain gainful employment and there are no unusual or exceptional disability factors warranting referral of the Veteran's claim for TDIU for consideration pursuant to 38 C.F.R. § 4.16(b).


CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating prior to February 17, 2011, for bilateral hearing loss disability were not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2012).

2.  The criteria for a disability rating in excess of 40 percent as of February 17, 2011, for bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2012).

3.  The criteria for a TDIU have not been 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

VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim.  VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits.  38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004).  The timing requirement applies equally to the effective date element of a service connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The record shows that the Veteran was mailed a letter in June 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  The June 2006 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claims.

The Board finds the Veteran has been afforded adequate assistance in response to his claims.  The Veteran's service medical records are of record.  VA Medical Center and private treatment notes have been obtained.  The Veteran has been provided appropriate VA examinations.  The Board notes that in a May 2011 remand, the Board directed that appropriate development be conducted in an effort to obtain legible copies of audiogram reports from the Veteran's private provider.  In a June 2011 letter, the Veteran was notified that the private audiogram reports were not legible and he was requested to submit those records for review.  VA has not received either the requested records or an authorization for VA to obtain the identified records on the Veteran's behalf in response to the June 2011 request.  As the Veteran was made aware of the illegible records, yet did not make an effort to submit legible copies or provide authorization for VA obtain them on his behalf, the Board finds that the development conducted at the direction of the May 2011 remand is adequate and the Board can proceed with a final decision.  The duty to assist is not a one-way street.  If a veteran wants help in developing a claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims.  The Board is also unaware of any outstanding evidence.

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

Tinnitus is rated under 38 C.F.R. § 4.87, Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Code 6260, Note 2 (2012).  The Veteran has already been rated 10 percent for tinnitus, but he seeks a higher rating for hearing loss disability.

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  Lendenman v. Principi, 3 Vet. App. 345 (1992).  The rating schedule establishes 11 auditory hearing acuity levels based on average puretone thresholds and speech discrimination.  38 C.F.R. § 4.85 (2012).  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a) (2012).

Table VI, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  38 C.F.R. § 4.85(b), Table VI (2012).

Table VIa, Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average, is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average.  Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties or inconsistent speech discrimination scores, or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c), Table VIa (2012).

Puretone threshold average as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  That average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(d) (2012).

Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e) (2012).

When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2012).

When the pure tone thresholds are 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b) (2012).

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.  38 C.F.R. § 4.16 (2012).  

Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment will not be considered substantially gainful employment.  38 C.F.R. § 4.16(a) (2012).

A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16(a) (2012).

The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

A claim for a TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU because of subjective factors that the objective rating does not consider.  Vittese v. Brown, 7 Vet. App. 31 (1994).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA.  VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

Increased Rating for Bilateral Hearing Loss Disability

The Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991), 

In July 2006, the Veteran was provided a VA audiology examination.  At that time, the Veteran reported that his hearing acuity had gradually decreased over time.  He reported that he experienced difficulty communicating with others, understanding conversations, and "getting close to nature (birds, animals)."  The Veteran was noted to experience the greatest difficulty with his hearing impairment in noisy environments.  The Veteran's audiometric testing results were as follows:

Hertz
1000
2000
3000
4000
Average
Right Ear
40
70
100
100
78
Left Ear
40
50
90
90
68

Speech recognition ability was measured at 88 percent in the right ear and 88 percent in the left ear.  The examiner diagnosed mild to profound sensorineural hearing loss, bilaterally.  Applying these values to the rating criteria results in a numeric designation of Level III in the right ear and Level III in the left ear.  38 C.F.R. § 4.85, Table VI (2012).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating.

In February 2011, the Veteran was seen at the VA Medical Center audiology clinic for examination of his bilateral hearing loss disability.  At that time, the Veteran reported that his bilateral hearing loss disability caused him to feel embarrassed when he met new people; caused him to feel frustrated when communicating with members of his family; caused him difficulty hearing when people spoke in whispers; caused him difficulty when visiting with relatives, friends, and neighbors; caused him to attend religious services less often than he would like; made it difficult to hear when listening to the television or radio; and caused him to experience difficulty when at restaurants with relatives or friends.  Overall, the Veteran reported that his bilateral hearing loss disability made him feel handicapped, it was the root of arguments with family members, and it hampered or limited his personal and social life.  The Veteran's audiometric testing results were as follows:

Hertz (Hz)
1000
2000
3000
4000
Average
Right Ear
45
70
95
100
78
Left Ear
45
65
85
85
70

Speech recognition ability was measured at 48 percent in the right ear and 68 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss.  Applying these values to the rating criteria results in a numeric designation of Level IX in the right ear and Level VI in the left ear.  38 C.F.R. § 4.85, Table VI (2012).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 40 percent rating.

At a June 2011 VA examination, the Veteran reported that he experienced problems communicating with others and absorbing information and that caused him frustration because he had to make everyone repeat themselves.  He reported that he was unable to obtain a job as a result of his bilateral hearing loss disability.  The Veteran's audiometric testing results were as follows:

Hertz (Hz)
1000
2000
3000
4000
Average
Right Ear
45
75
100
100
80
Left Ear
50
70
90
85
73
   
Speech recognition ability was measured at 64 percent in the right ear and 80 percent in the left ear.  The examiner diagnosed mild to profound sensorineural hearing loss, bilaterally.  Applying these values to the rating criteria results in a numeric designation of Level VII in the right ear and Level IV in the left ear.  See 38 C.F.R. § 4.85, Table VI.  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 20 percent disability rating.

The examiner noted that the Veteran's bilateral hearing loss disability and tinnitus should not be a barrier to a wide range of employment settings.  The examiner noted that many individuals with the Veteran's degree of hearing loss, and even worse hearing impairment, functioned well in many occupational settings.  The examiner further noted that was not to say that the Veteran's bilateral hearing loss disability and tinnitus would not cause problems depending on the vocation.  He may experience difficulty working well in very noisy environments, in environments which required him to often use non face-to-face communication equipment (such as speakers or intercoms), or in jobs which required a great deal of attention to high frequency sounds (such as monitoring medical equipment).  

In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report." Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The July 2006 and June 2011 VA examiners clearly identified the effects that the Veteran's bilateral hearing loss disability had on his daily activities.  The June 2011 VA examiner went into detail regarding the effects the Veteran's bilateral hearing loss disability would have on his occupational activities.  Further, the February 2011 VA audiology clinic treatment note clearly identified the effects the Veteran's bilateral hearing loss disability had on various social situations.  Therefore, the Board finds that the VA examination reports and the VA Medical Center treatment notes are in compliance with the requirements.

Also of record are treatment records from the Veteran's private physician.  A review of those records shows that the Veteran has been afforded several audiograms by his private physician.  However, the majority of those records are not legible.  The Veteran was made aware of that fact.  The Board notes that the records that are legible do not show that the Veteran's hearing impairment is worse than that found at his VA examinations or VA Medical Center audiology clinic audiogram.  In a March 2010 letter, the Veteran's private physician reported that the Veteran had severe sensorineural hearing loss, worse in his right ear.  The examiner noted that the Veteran needed hearing aid assistance and that the Veteran had significant nerve damage in both ears.

Prior to February 17, 2011, the Veteran's hearing loss disability has not been shown to be worse than Level III in either ear.  Those results fall within the schedular criteria for a 0 percent rating.  The criteria for a compensable disability rating for this period are therefore not met prior to February 17, 2011.  

As of February 17, 2011, the Veteran's right ear hearing loss disability is not shown to be worse than Level IX and his left ear hearing loss disability is not shown to be been worse than Level VI.  Those results fall within the schedular criteria for a 40 percent rating.  In fact, at his most recent June 2011 VA examination, the Veteran's audiometric testing showed that the Veteran's hearing had improved slightly since his February 2011 VA Medical Center audiogram.  The June 2011 audiometric results would not warrant a disability rating in excess of 20 percent.  Therefore, the criteria for a disability rating in excess of 40 percent as of February 17, 2011, are not met.

Consideration has been given to assigning a staged rating.  However, at no time during the period in question has the disability warranted a higher schedular rating than those staged ratings currently assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration.  38 C.F.R. § 3.321(b)(1) (2012).  

The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

The record shows that the manifestations of hearing loss disability are contemplated by the schedular criteria.  There is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating.  In addition, the evidence does not show frequent hospitalization beyond that envisioned by the currently assigned rating.  The Board notes that the Veteran has reported that his bilateral hearing loss disability renders him unemployable.  However, the issue of entitlement to a TDIU is addressed below.  Therefore, the Board has determined that referral of this case for extra-schedular rating consideration is not warranted.
 
Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to increased disability ratings for bilateral hearing loss disability is not warranted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

TDIU

The Veteran is service-connected for bilateral hearing loss disability, rated 0 percent prior to February 17, 2011, and 40 percent as of February 17, 2011; and tinnitus, rated 10 percent.  The Veteran's combined disability rating is 10 percent prior to February 17, 2011, and 50 percent as of February 17, 2011.

Accordingly, the Veteran does not meet the schedular criteria for consideration for a TDIU.  38 C.F.R. § 4.16(a) (2012).  However, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating.  38 C.F.R. § 4.16(b) (2012).

The evidence of record indicates that the Veteran has reported that he last worked as a maintenance man and that he is now unable to obtain and maintain gainful employment as a result of his bilateral hearing loss disability and tinnitus.  However, the June 2011 VA examiner noted that while the Veteran's bilateral hearing loss disability and tinnitus would cause him difficulty in some occupational environments, they would not be a barrier to working in a wide range of employment settings.  The examiner noted that many individuals with the Veteran's degree of hearing loss, and even worse, functioned well in many occupational settings.  

The Board finds that the Veteran does not meet the schedular criteria for an assignment of a TDIU.  Furthermore, the June 2011 VA examiner has noted that the Veteran's bilateral hearing loss disability and tinnitus do not render him unable to secure and follow gainful employment in a variety of settings and there are no unusual or exceptional disability factors present.  Therefore, the Board concludes that referral of the TDIU claim for extra-schedular consideration is not warranted.

The Board finds that the preponderance of the evidence is against the claim for TDIU and the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).





ORDER

Entitlement to a compensable disability rating prior to February 17, 2011, and a rating in excess of 40 percent as of February 17, 2011, for bilateral hearing loss disability is denied.  

Entitlement to TDIU is denied.  



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs