Citation Nr: 1318560 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-29 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 80 percent for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1945 to December 1948 These matters initially came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Travel Board hearing was held in front of the undersigned Veterans Law Judge in May 2012. A transcript of the hearing has been associated with the claims file. This case was remanded by the Board for further development in August 2012 and March 2013. The case is again before the Board for appellate review. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims known as Virtual VA. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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). FINDINGS OF FACT 1. Prior to December 29, 2010, the Veteran's bilateral hearing loss was not manifested by worse than Level IX hearing in the right ear and Level XI hearing in the left ear. 2. Since December 29, 2010, the Veteran's bilateral hearing loss has manifested by Level XI hearing in both ears. 3. Prior to December 29, 2010, service connection was in effect for hearing loss (rated as 80 percent disabling), tinnitus (rated as 10 percent disabling), and scars of the lower extremities (rated as 10 percent disabling), with a combined disability rating of 80 percent. 4. The evidence indicates that prior to December 29, 2010, the Veteran's service-connected disabilities were not so severe as to prevent him from engaging in substantially gainful employment. 5. The Veteran's claim for a TDIU from December 29, 2010 and thereafter is now moot as a 100 percent schedular rating is assigned as of that date. CONCLUSIONS OF LAW 1. Prior to December 29, 2010, the criteria for an evaluation in excess of 80 percent for bilateral hearing loss were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. Since December 29, 2010, the criteria for an evaluation of 100 percent for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.10, 4.85, 4.86, Diagnostic Code 6100. 3. Prior to December 29, 2010, the criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103A, 5107; 38 C.F.R. §§ 3.304, 3.159. 3.340, 3.341, 4.16, 4.18, 4.19 (2012). 4. After December 29, 2010, the Veteran's claim for a TDIU is moot. 38 U.S.C.A. §§ 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a January 2009 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment and provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). In an April 2009 letter issued prior to the adjudication of the TDIU claim, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for a TDIU, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. Both issues were last adjudicated in May 2013, and any defect as to timing of notice is harmless, non-prejudicial error. Dingess/Hartman, 19 Vet. App. 473. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA examination reports, VA treatment records, private treatment records, lay statements of the Veteran and his family members, and the testimony of the Veteran's May 2012 Board hearing. As noted, the Veteran's claim was remanded for additional development by the Appeals Management Center (AMC) in August 2012 and March 2013. An additional VA examination was scheduled and held in October 2012, and the report has been associated with the claims file. In March 2013 the Veteran was requested to provide authorization to contact his private medical care professionals regarding clarification of private audiological examinations, but no response was received from the Veteran. An addendum opinion was requested relating to the October 2012 examinations report. While the examiner who performed the October 2012 examination was not available to provide the addendum, a similarly qualified staff audiologist provided an adequate addendum response in April 2013. All new evidence was associated with the claims file and considered in a May 2013 supplemental statement of the case. The Board therefore finds that there was substantial compliance with the prior remand directives, fulfilling the duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Finally, during the May 2012 Travel Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments in compliance with 38 C.F.R. § 3.103. Relevant Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. 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 medical evidence of record described below, the Board has found that the level of severity of the Veteran's hearing loss disability is most appropriately divided into two staged periods, the period prior to December 29, 2010 and since December 29, 2010. Evaluations of defective hearing range from non-compensable (0 percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85 (2012). To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a) (2012). In that situation, 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. Further, when the average puretone threshold is 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). VA will grant a total rating for compensation purposes based on unemployability (TDIU) when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where 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 service-connected disabilities, provided 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 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran has met the criteria of a single service-connected disability ratable at 60 percent or more, as he has been rated at least 80 percent for bilateral hearing loss for the entire appeal period. For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a TDIU, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. VA's Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that 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). 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 first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 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. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Analysis: Hearing Loss In March 2004 the Veteran was granted entitlement to service connection for bilateral hearing loss, rated as 50 percent disabling. Due to the Veteran's steadily increasing severity of hearing loss, this evaluation was raised to 60 percent, effective date February 2006 and to 70 percent, effective date August 2006. In January 2009 the Veteran filed a claim asserting that his hearing loss had become yet worse, and in August 2009 the Veteran's evaluation for bilateral hearing loss was increased to 80 percent. The Veteran asserts that since January 2009 his hearing loss warrants an evaluation of 100 percent. The Veteran testified at a May 2012 Board hearing, at which he explained that his hearing loss makes it very difficult to understand what people are saying and impossible to use a regular telephone. The Veteran stated that he formerly worked as a firefighter and a house painter, and that not being able to hear or communicate well made his work more difficult. In the Veteran's July 2010 substantive appeal he stated that being unable to hear people, together with his mobility problems, were preventing him from getting a job. The Veteran's daughter submitted a statement in May 2009 stating that the Veteran's hearing had recently declined and that he was unable to hear anything without hearing aids. She stated that he had trouble understanding her when she speaks directly to him and that he was greatly dependent on her mother for help. A May 2009 letter from the Veteran's wife indicates that the Veteran's hearing disability had "worsened to the point of having diminished quality of life." In February 2009 the Veteran was afforded a VA audiological examination to determine the current severity of his hearing loss disability. The Veteran reported that he had difficulty hearing at all times, even with the help of hearing aids. He also reported having frequent ear infections that he felt were related to swimming. The examiner diagnosed the Veteran with moderately severe sloping to profound mixed/sensorineural hearing loss for the right ear and profound mixed hearing loss for the left ear with poor word recognition. Puretone threshold testing was performed, with the following results, in decibels: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 80 95 95 100 93 LEFT 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and 14 percent in the left ear. Applying the findings from the February 2009 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level VIII hearing loss in the right ear and Level XI hearing loss in the left ear. As the Veteran's puretone threshold at each of the four specified frequencies was 55 decibels or higher for both ears, the 38 C.F.R. § 4.86(a) provision can be applied. Applying the findings to Table VIA yields a finding of Level IX hearing loss in the right ear and Level XI hearing loss in the left ear. 38 C.F.R. § 4.86(a). Where hearing loss is at Level IX in one ear and Level XI in the other ear, an 80 percent rating is assigned under Table VII. Id. In October 2009 the Veteran was afforded an additional VA audiological examination. The Veteran reported that his hearing loss made hearing and understanding conversations difficult in all situations, but the examiner noted that hearing loss caused no effect on his usual daily activities. The examiner diagnosed the Veteran with moderately severe to profound mixed hearing loss in the right ear and profound mixed hearing loss in the left ear. Puretone thresholds on this examination, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 75 90 90 95 88 LEFT 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 16 percent in the left ear. Applying the findings from the October 2009 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level VIII hearing loss in the right ear and Level XI hearing loss in the left ear. As the Veteran's puretone threshold at each of the four specified frequencies was again 55 decibels or higher for both ears, the 38 C.F.R. § 4.86(a) provision can be applied. Applying the findings to Table VIA yields the same findings of Level VIII hearing loss in the right ear and Level XI hearing loss in the left ear. 38 C.F.R. § 4.86(a). Where hearing loss is at Level VIII in one ear and Level XI in the other ear, a 70 percent rating is assigned under Table VII. Id. The Veteran also underwent a VA audiological examination in January 2010. The Veteran reported severe difficulty understanding conversation without the use of a hearing aid and difficulty hearing conversation in the presence of background noise even with the use of a hearing aid. The examiner noted that the Veteran's hearing impairment would cause severe difficulty understanding speech but would not necessarily prevent gainful employment. The examiner diagnosed the Veteran with moderately severe to profound mixed hearing loss in the right ear and profound mixed hearing loss in the left ear. Puretone thresholds on this examination, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 75 90 90 95 88 LEFT 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and 12 percent in the left ear. Applying the findings from the January 2010 examination to Tables VI and VIA yield the same results as those of the October 2009 examination, warranting a 70 percent rating under Table VII. 38 C.F.R. §§ 4.85, 4.86(a). The Veteran underwent another VA examination in October 2012. The Veteran reported that he was unable to hear the television or his wife's voice. The examiner diagnosed the Veteran with bilateral mixed hearing loss. Puretone thresholds on this examination, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 80 90 90 100 90 LEFT 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 48 percent in the right ear and 0 percent in the left ear. Applying the findings from the October 2012 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IX hearing loss in the right ear and Level XI hearing loss in the left ear. As the Veteran's puretone threshold at each of the four specified frequencies was again 55 decibels or higher for both ears, the 38 C.F.R. § 4.86(a) provision can be applied, but the results would not result in a higher numeral. Where hearing loss is at Level IX in one ear and Level XI in the other ear, an 80 percent rating is assigned under Table VII. Id. The Veteran has submitted two private examination reports from Audiologist M.L. at Harbor Audiology. The report of the December 29, 2010 examination is fully compliant with the requirements of 38 C.F.R. § 4.85, including the use of the Maryland CNC speech discrimination test, and may be afforded full probative weight in considering the Veteran's current hearing loss severity. At this examination the examiner diagnosed the Veteran with profound sensorineural hearing loss in the left ear with no usable speech understanding and sloping severe to profound sensorineural hearing loss in the right ear. Puretone thresholds on this examination, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 85 90 90 95 90 LEFT 105 110 115 115 111 Speech audiometry revealed speech recognition ability of 20 percent in the right ear and 0 percent in the left ear. Applying the findings from the December 2010 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level XI hearing loss in the right ear and Level XI hearing loss in the left ear. While the Veteran's puretone threshold at each of the four specified frequencies were sufficient to allow the application of 38 C.F.R. § 4.86(a), application of this provision would result in a lower numeral. Where hearing loss is at Level XI in one ear and Level XI in the other ear, a 100 percent rating is assigned under Table XI. Id. The Veteran also submitted the report of an August 2012 examination by Audiologist M.L. The examiner diagnosed the Veteran with profound sensorineural hearing loss in the left ear with no usable speech comprehension and a sloping severe to profound sensorineural hearing loss in the right ear with poor speech comprehension. Right ear audiometric testing found puretone thresholds, in decibels, of 85 at 1000 Hertz, 90 at 2000 Hertz, and 100 at 4000 Hertz, with speech recognition ability of 32 percent. Left ear audiometric testing found puretone thresholds of 110 decibels or higher at 1000, 2000, and 4000 Hertz, with no speech recognition ability. While this examination did not include findings for puretone thresholds at 3000 Hertz, as is required for the application of 38 C.F.R. § 4.85, the findings provided are consistent with the findings of the Veteran's December 2010 examination and suggest that his hearing level has continued to be at approximately the same level as that shown in December 2010. With further regard to the December 2010 and August 2012 audiograms, the Board notes that they contain information in graphical form only. The Board may interpret graphical representations of audiometric data and convert them to numerical data in its role as a fact finder as long as the graphical representations are clear. See Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly v. Brown, 7 Vet. App. 471 (1995), the United States Court of Appeals for Veterans Claims (Court) determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains). The Veteran has also submitted additional private records from Dr. L.M. and Audiologist M.W. The audiological examination from M.W. dated in May 2010 includes puretone thresholds and speech discrimination findings, but unfortunately does not specify whether the Maryland CNC word test was used and is therefore not adequate for VA rating purposes. 38 C.F.R. § 4.85(a). Seven separate audiometric test results for the right ear from April 2007 to June 2010 from L.M. were also submitted, but these test findings either did not include any speech discrimination test results or did not specify whether the Maryland CNC word test was used, and are also not adequate for VA rating purposes. Id. Pursuant to the March 2013 Board remand, the Veteran was sent a letter requesting that he provide authorization to contact M.W. and L.M. and receive clarification, but no response was received from the Veteran. As these examination reports do not conform to regulation requirements, they will not be considered in determining the severity of the Veteran's bilateral hearing loss. Id. On review of the file, it is evident that prior to December 29, 2010, the criteria for a rating in excess of 80 percent for bilateral hearing loss under Diagnostic Code 6100 were not met. Although the audiological evaluations of February 2009, October 2009, and January 2010 clearly show the Veteran had severe to profound hearing loss, the hearing loss had not met the criteria under the rating schedule necessary for a higher evaluation during that time frame. The February 2009, October 2009, and January 2010 examinations were conducted in accordance with 38 C.F.R. § 4.85(a). The examiners discussed with the Veteran his symptoms and the functional effects of hearing loss on his daily life activities and occupational functioning. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Accordingly, the Board finds these examinations to be fully in compliance with the provisions of VA regulations and are afforded great probative value in determining the Veteran's level of hearing impairment during that period. The Board finds, however, that as of the December 29, 2010 examination, objective audiological testing shows that the Veteran's bilateral hearing loss had worsened, and that it warrants a 100 percent rating from that point onward. See Hart, 21 Vet. App. 505. The December 2010 test findings show that the Veteran's puretone thresholds and speech recognition ability in his right ear had significantly deteriorated, to a degree that allows for a 100 percent rating under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The Board has taken into consideration the Veteran's complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. The Board also acknowledges the Veteran's belief that his hearing impairment prior to December 29, 2010 was deserving of a higher disability rating. However, the three audiometric examinations performed during the period since his January 2009 claim and prior to the December 29, 2010 examination show that the Veteran's bilateral hearing loss at no time warranted an evaluation higher than 80 percent. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The most probative medical evidence as to the nature of the appellant's hearing loss are the audiometric findings, and those discussed above reveal that the appellant's hearing loss did not warrant a rating in excess of that which was assigned. There is currently no probative medical evidence of record which indicates that the Veteran's measurable hearing loss was worse than was been demonstrated in his February 2009, October 2009, and January 2010 VA examinations, nor has any fault with the medical examinations of record been shown. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his hearing loss and that his functional impairment is adequately reflected by those medical findings. Accordingly, the preponderance of the evidence is against the claim of entitlement to a rating in excess of 80 percent prior to December 29, 2010. As a final matter, the Board has also considered whether the Veteran's bilateral hearing loss presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher, 4 Vet. App. at 60. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. 38 C.F.R. § 4.85. There is no evidence of record, nor has the Veteran ever asserted, that his hearing loss contributed to his retirement from his former employment. While the Veteran has indicated that his hearing loss did make work more difficult and may be impeding his taking a new job at Wal-Mart, the very high evaluations of 80 and 100 percent that the Veteran has been assigned already reflect the understanding that such severe hearing loss would have a significant impact on the Veteran's ability to function effectively at work. The record does not show that the Veteran has required any hospitalization or surgery relating to his hearing loss, nor is there evidence in the medical records of an exceptional or unusual clinical picture. The Veteran's tinnitus has been granted service connection separately, and he receives a separate rating for this disorder. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. Consequently, referral for extra-schedular consideration is not warranted. In sum, there is no basis for assignment of a rating in excess of 80 percent prior to December 29, 2010. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a rating in excess of 80 percent prior to December 29, 2010, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). Since December 29, 2010, the evidence shows that the Veteran's hearing became worse and satisfied the criteria under 38 C.F.R. 4.85, allowing for an evaluation of the maximum possible schedular rating, 100 percent. Analysis: TDIU The Veteran has also claimed entitlement to a TDIU. The Veteran submitted the current claim for a TDIU in February 2009, stating that he had last worked as a painter until he stopped in 1985 and that he is now unable to work due to his hearing loss disability. For the period of February 2009 to December 2010, the Veteran was service connected for hearing loss at 80 percent, tinnitus at 10 percent, and scars of the bilateral extremities at 10 percent. As the Veteran has never asserted that his service-connected scars have caused him any difficulties with functioning or employment, and at his May 2012 hearing he specifically indicated that his tinnitus has not caused him problems functioning or communicating with others, the analysis below will focus exclusively on his service-connected hearing loss, which the Veteran clearly contends is the reason he is unable to obtain and maintain substantially gainful employment. The Veteran has submitted statements to VA and testified at a May 2012 Board hearing in which he indicated that he is physically in good shape and would like to work as a greeter or doing cart transferral at a supermarket, but hearing loss prevents him from holding a conversation with anyone and thus prevents him from holding this type of job. As discussed above, the Veteran has stated that he is unable to comprehend conversations, the television, or regular telephones. The Veteran stated that he worked as a firefighter for 23 years until he left that job in 1978 for reasons unrelated to hearing loss. The Veteran stated that he then worked as a painter for a decorating company until 1986 or 1987, and that hearing loss did make his job more difficult because it was more difficult to communicate with people. The Veteran also stated that when he was working, he had difficulty using the telephone because of his hearing loss, which made his jobs more difficult. At a February 2009 VA examination the Veteran reported that he had difficulty hearing at all times, even with hearing aids, and that he had the most trouble understanding women's voices, especially when there is even minimal background noise present. The Veteran reported that he worked for the fire department for 23 years and drove a dump truck for 1 year. The examiner found that the Veteran's disability had significant effects on his occupational functioning due to hearing difficulty, but no effect on his usual daily activities. At an October 2009 VA examination the Veteran reported that he wasn't able to understand conversations without the use of his hearing aid and that even with his hearing aid he was unable to hear conversations in the presence of background noise. The examiner found that the Veteran's disability would cause significant effects on his occupational functioning due to difficulty hearing and understanding conversation in all listening situations, but found no effects on usual daily activities. In January 2010 the Veteran received another VA examination, at which he again described having difficulty hearing conversations without his hearing aid or hearing speech with the hearing aid when background noise is present. The examiner found that the Veteran's hearing loss caused significant effects on his occupational functioning because it would cause him severe difficulty hearing conversational speech and certain environmental sounds. He stated that the use of amplification assistance would decrease, but not eliminate, these difficulties. He also stated that "this hearing impairment alone would not prevent the average person from obtaining and maintaining gainful employment" and found no effects on his usual daily activities. At an October 2012 VA examination the Veteran stated that his hearing loss made it difficult for him to hear the television and his wife's voice. The examiner indicated that hearing loss would impact the Veteran's ordinary conditions of life and his ability to work. In an April 2013 addendum opinion to the October 2012 examination requested for further discussion regarding the Veteran's disability's impact on his occupational functioning, a VA audiologist reviewed the Veteran's VA treatment records and examination reports and opined that the Veteran's hearing loss and tinnitus disabilities did not cause individual unemployability. The audiologist further stated that while bilateral hearing loss would limit the Veteran's ability to understand speech, there were medical treatments that the Veteran has not yet tried that would lessen the severity of his disability. He further stated that bilateral hearing loss caused "very limited barriers to both physical and sedentary gainful employment" and that he would be "as likely to seek and maintain gainful employment as any other average person." The examiner stated that the Veteran's hearing impairment, "as severe as the hearing loss may be, has little, if any effect, upon individual unemployability." He additionally found that the Veteran's tinnitus caused no functional disability. The Veteran's private physician submitted a letter in May 2009 stating that the Veteran is "100% totally and permanently disabled" because his hearing is permanently lost. The physician, however, makes no comment on the Veteran's ability to obtain or maintain employment. The Veteran's wife and daughter have also submitted statements indicating that the Veteran has tremendous difficulty communicating with people because of his hearing loss, but they did not discuss how this disability impacts his ability to work or whether it would prevent him from all types of employment. Based on the foregoing evidence, the Board finds that the Veteran's service-connected hearing loss did not prevent him from obtaining and maintaining substantially gainful employment prior to December 29, 2010. While the Veteran certainly has a severe hearing loss impairment, which likely would make some employment options more challenging for the Veteran, none of the VA examination reports of record have found the he is unable to obtain or maintain substantial and gainful employment. The Board acknowledges that the Veteran's hearing loss may prevent him from some types of employment where the ability to hear or easily communicate is necessary. However, the competent and probative medical opinions in the record indicate the Veteran's disability does not prevent all types of sedentary or physical employment. The Board places greater probative weight on the medical opinions concerning the Veteran's capability than the Veteran's contentions as to the limitations caused by his disability. The issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose, 4 Vet. App. at 363. While the Board is cognizant that the Veteran may be precluded from some types of employment, such as those which require frequent conversation with the public or use of the telephone, the preponderance of the evidence of record demonstrates that the Veteran was not precluded from securing and following gainful employment which provided reasonable accommodation for his hearing loss disability. The Veteran himself has stated that he was able to work as a painter for many years even though his hearing was very poor. Accordingly, the Board finds, based on the preponderance of the evidence of record, that the Veteran's service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment consistent with his education prior to December 29, 2010, and the Veteran's claim for a TDIU is denied. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching the above conclusion, the Board has again considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b). Regarding the issue of the remainder of the period on appeal, the Veteran filed this claim for a TDIU in February 2009. Pursuant to this Board decision, the Veteran will receive a 100 percent rating for his service-connected hearing loss effective December 29, 2010. As a result of this, the Veteran's claim for a TDIU becomes moot as of December 29, 2010. The Board notes that VA's General Counsel issued VAOGCPREC 6-99 in June 1999, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See Green v. West, 11 Vet. App. 472, 476 (1998); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). In view of Bradley, the General Counsel subsequently took action in November 2009 to withdraw the prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation when considered in conjunction with another disability rated as at least 60 percent. In this case, the Veteran is service-connected for bilateral hearing loss at 100 percent, tinnitus at 10 percent, and scars of the lower extremities at 10 percent. Notably, the Veteran is only contending, and the evidence only shows, that he is unemployable due to his service-connected hearing loss, and there have been no assertions that the Veteran's service-connected tinnitus or scars warrant any ratings higher than those currently assigned. Therefore, the decisions in Bradley and Buie do not apply, and the claim for a TDIU since December 29, 2010 is moot. ORDER Entitlement to a rating in excess of 80 percent for bilateral hearing loss prior to December 29, 2010 is denied. Entitlement to a 100 percent disability rating for bilateral hearing loss is granted for the rating period since December 29, 2010, subject to the laws and regulations governing the payment of VA compensation. Entitlement to a TDIU prior to December 29, 2010 is denied. Entitlement to a TDIU since December 29, 2010 is dismissed as moot. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs