Citation Nr: 1322460	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  12-22 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased disability rating for bilateral hearing loss, currently rated as 50 percent disabling.  

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


REPRESENTATION

Appellant (Veteran) represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 



INTRODUCTION

The Veteran served on active duty from December 1951 to January 1955.

This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The May 2010 rating decision addressed, and denied, two issues - the increased rating claim for hearing loss, and the claim to a TDIU.  In response to the Veteran's May 2010 notice of disagreement (NOD), the RO submitted a July 2012 Statement of the Case (SOC).  The SOC addressed not only the two issues noted in the May 2010 rating decision, but also two additional issues which related to the Veteran's claim for a TDIU (increased rating claims for otitis externa and tympanic membrane perforation).  In the subsequent August 2012 substantive appeal, the Veteran clarified that he only wanted to appeal the increased rating claim for bilateral hearing loss and the claim to a TDIU.  His decision was later confirmed by a January 2013 brief in support of the Veteran from the representative.  

Nevertheless, the Board notes a May 2013 statement of record from the representative which lists as issues on appeal the 4 issues noted on the SOC.  This statement will not be construed as a substantive appeal, however, of the claims regarding otitis externa and tympanic membranes.  The statement is not a timely appeal as it was not submitted within one year of the May 2010 rating decision, or within 60 days of the July 2012 SOC.  38 C.F.R. § 20.302.  The Board further notes that, within the argument of the May 2013 statement, otitis media and perforated tympanic membrane is not noted.  The representative argues merely for a higher rating for hearing loss and for a TDIU.  

Hence, the record indicates that the Veteran only wants to appeal to the Board the RO's denial of his claim for increased rating for hearing loss, and his claim for a TDIU.  Moreover, those are the only issues that have been timely appealed to the Board.  

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  Certain evidence has been added to the paper claims file since the July 2012 SOC.  This evidence has been considered pursuant to a May 2013 waiver of initial Agency of Original Jurisdiction (AOJ) review of the new evidence.  38 C.F.R. §§19.31, 20.1304 (2012).    

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.  Throughout the period of the appeal, bilateral hearing loss disability has been manifested by no worse than level VII hearing acuity in each ear.   

2.  The Veteran is service-connected for several disorders - hearing loss rated as 50 percent disabling, tinnitus as 10 percent disabling, otitis externa as 10 percent disabling, bilateral tympanic membrane perforation as 0 percent disabling, and otitis media as 0 percent disabling.  

3.  The Veteran's service-connected disabilities do not preclude him from obtaining and maintaining gainful employment.  


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 50 percent for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 

2.  The criteria for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

VA must provide notice and assistance to claimants for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  Proper notice applies to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In the instant case, the Veteran was provided with a notification letter in October 2009.  The letter informed the Veteran of the evidence and information necessary to substantiate a claim for increased rating and for a total rating, and informed the Veteran regarding his and VA's respective responsibilities in obtaining evidence and information.  In accordance with Dingess/Hartman, the letter also informed the Veteran of the evidence and information necessary to establish an effective date.  Moreover, the Veteran was provided with full notification prior to the May 2010 rating decision that denied his claims.  Mayfield v. Nicholson, 19 Vet.App. 103 (2005).  In sum, VA has satisfied its duty to notify.

With regard to VA's duty to assist, the record indicates that the RO requested from the Veteran information regarding medical evidence pertaining to his claims for increased rating and for a TDIU.  The record shows that the RO included in the claims file relevant private and VA treatment records and reports.  The record shows that the RO attempted to obtain relevant information from the Social Security Administration (SSA).  A November 2009 letter from SSA indicates, however, that SSA records pertaining to the Veteran had been destroyed.  The Veteran underwent VA compensation examinations into his claims in March 2010, January 2012, and March 2012.  Reports of the examinations are of record.  In the reports, the VA examiners detailed the nature and severity of the Veteran's hearing and ear disabilities, and noted findings based on the Veteran's lay statements, on the evidence of record, and on the examination of the Veteran.  The findings are supported by data and reasoned explanations.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  When considered together, along with the detailed VA treatment records in the claims file, the VA examination reports are sufficient to enable the Board in deciding the Veteran's claims for increased rating and for a TDIU.  

In sum, the Board finds that VA's duties to notify and assist have been substantially met.  Any errors committed were not harmful to the essential fairness of the proceeding.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive).  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims for increased rating and for a TDIU.  

Higher Ratings

The Veteran claims entitlement to a disability rating higher than 50 percent for hearing loss, and to a TDIU for disability associated with the hearing loss.  

The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide reasons and bases supporting the decision.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether evidence supports a claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

	Hearing Loss:

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2. 

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).

The rating schedule establishes 11 auditory hearing acuity levels based on average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85.

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).

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 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, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85 (c).

"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.  This 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).

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation 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).

Provisions for evaluating exceptional patterns of hearing impairment are as follows:

(a) When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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.

(b) When the pure tone thresholds are 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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.

The Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). 

The Veteran has been service-connected for bilateral hearing loss since April 1980.  The disorder has been rated as 50 percent disabling since April 1999.  In October 2009, the Veteran filed a claim for increased rating for his hearing loss disorder.  Subsequently, he underwent two VA audiology examinations and one private audiology examination during the appeal period.  The Board notes that it has reviewed evidence of record dated from October 2008, one year prior to the Veteran's claim for increased rating.  38 C.F.R. § 3.400(o).  

In the first of the VA examinations, in March 2010, the VA examiner noted the following puretone thresholds, in decibels: 





Hertz (decibels)

500
1000
2000
3000
4000
Avg.
RIGHT
45
65
65
80
105
79
LEFT
50
60
65
75
100
75

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 88 percent in the right ear and 64 percent in the left ear.  The average of the puretone thresholds between 1000-4000 Hertz was 79 for the right ear and 75 for the left.

Applying the results to the Table VI chart result in level III hearing for the right ear and Level VII hearing for the left ear.  Applying these results to the Table VII chart results in a 20 percent compensation evaluation.

Under the Table VIA chart, the noted puretone threshold averages result in level VII hearing for the right ear and level VI hearing for the left ear which, under Table VII, results in a 30 percent compensation evaluation.  Furthermore, combining the level VII hearing noted for the left ear using the Table VI chart, with the level VII hearing noted for the right ear using the Table VIA chart, results in a 40 percent compensation evaluation under Table VII.  38 C.F.R. §§ 4.85, 4.86.  In short, these results do not exceed the criteria for a 50 percent evaluation.  

In the second VA examination, in January 2012, the VA examiner noted the following puretone thresholds, in decibels: 




Hertz (decibels)

500
1000
2000
3000
4000
Avg.
RIGHT
55
60
60
70
85
69
LEFT
55
60
60
75
95
73

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 88 percent in the right ear and 80 percent in the left ear.  The average of the puretone thresholds between 1000-4000 Hertz was 69 for the right ear and 73 for the left.

Applying the results to the Table VI chart result in level III hearing for the right ear and Level IV hearing for the left ear.  Applying these results to the Table VII chart results in a 10 percent compensation evaluation.

Under the Table VIA chart, the noted puretone threshold averages result in level V hearing for the right ear and level VI hearing for the left ear which, under Table VII, results in a 20 percent compensation evaluation.  38 C.F.R. §§ 4.85, 4.86.  As with the March 2010 VA audiometric test results, these results do not exceed the criteria for a 50 percent evaluation.    

In accordance with Martinak, the January 2012 VA audiology examiner indicated that the Veteran had "good" word understanding ability in a quiet environment for both ears, and was able to follow directions.  The examiner further noted that the Veteran should be able to work in a quiet environment.  

According to an August 2012 audiology report, the Veteran underwent private audiology examination during the appeal period as well.  The Board has reviewed data noted on the report, seeking information that would corroborate the claim for a rating in excess of 50 percent under 38 C.F.R. §§ 4.85, 4.86.  However, the report is not sufficiently developed for use under Diagnostic Code 6100.  Though the private examiner expressly noted speech discrimination scores of 92 percent bilaterally (which is higher than what VA examiners noted) the examiner did not include in her report specific information regarding puretone thresholds between 1000-4000 Hertz.  The Board has also reviewed a March 2013 letter from a private treating physician.  This physician noted "excellent discrimination bilaterally" which tends to support the August 2012 private findings.  But the report is not of use under DC 6100 because, though it notes "severe to profound" hearing loss, it does not note puretone thresholds between 1000-4000 Hertz.  In sum, based on the discernible relevant information in the private report and private letter, a rating in excess of 50 percent would not be warranted under 38 C.F.R. §§ 4.85, 4.86.   

Considering the examination results noted above, a rating in excess of 50 percent is not warranted under the provisions of 38 C.F.R. § 4.85, Table VII, for the entire period of the appeal.  See Lendenmann, supra.  

Extraschedular Consideration

The Board must still consider whether the Veteran is entitled to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1).  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  

The threshold factor for extraschedular 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.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

Here, the Board finds that the disability picture presented by the Veteran's hearing loss is appropriately contemplated by the rating schedule.  Specifically, the Veteran has moderate to severe hearing loss.  Those symptoms are directly contemplated by the schedular criteria.  As indicated in the analysis above, were the record to indicate worse symptoms for the disorder, then the rating schedule would warrant a higher rating.  

Although the evidence in this matter indicates that the Veteran's disability impacts his ability to do some work (as will be further detailed below), the Board notes that the schedule was created to compensate for a decrease in occupational ability due to service-connected disabilities.  Thus, the Board finds that to the extent that the Veteran's hearing loss affects his ability to work, it is already contemplated by the 50 percent rating assigned since 1999.  In short, as the Veteran's symptoms are contemplated by the schedule, referral for consideration of an extraschedular evaluation is not warranted here.  Thun.  

As a preponderance of the evidence is against the assignment of a rating in excess of 50 percent for bilateral hearing loss, the benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 

      TDIU:

The Veteran asserts that he is unemployable as a result of his service-connected hearing/ear disabilities which are, hearing loss rated as 50 percent disabling, tinnitus as 10 percent disabling, otitis externa as 10 percent disabling, bilateral tympanic membrane perforation as 0 percent disabling, and otitis media as 0 percent disabling.  The Veteran asserts that he is unemployable due to a difficulty hearing as the result of these disorders.      

Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides."  See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(d).  Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Marginal employment is not considered to be substantially gainful employment.  Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16(a) (2012).

Total disability may or may not be permanent.  Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person.  Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote.  38 C.F.R. 
§ 3.340(b) (2012).

The term unemployability is not synonymous with the terms unemployed and unemployable for the purposes of determining entitlement to TDIU.  A veteran may be unemployed or unemployable for a variety of reasons, but a determination as to entitlement to TDIU is appropriate only when a veteran's unemployability is the result of a service-connected disability.  See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(c).

Total disability ratings for compensation may be assigned, where 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.

As noted above, the Veteran is service connected for five disorders, each of which affects his ears.  He is compensably rated for three of the disorders.  He is rated as 50 percent disabled for hearing loss, 10 percent disabled for tinnitus, and 10 percent disabled for otitis externa.  Combined, these disorders equal a 60 percent rating.  38 C.F.R. § 4.25.  The Veteran's disability rating therefore meets the percentage requirement of the schedular criteria for entitlement to a TDIU.  The remaining question, therefore, is whether the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities.  

Certain evidence of record indicates that the Veteran may not be suited for certain types of employment, while other evidence indicates that he is capable of obtaining and maintaining substantially gainful employment.  

The evidence indicating employment difficulty consists of lay statements and of a letter from an employer.  In several statements of record, the Veteran claims that he is unable to adequately hear in a workplace setting.  His assertions are corroborated by his spouse and friends who attest to the Veteran's noticeable hearing loss and his difficulty communicating with others, particularly on the phone.  The record also contains a letter from an employer, who indicates that the Veteran's hearing loss, "disqualifies him from working in our cabinet and construction work shop."  

The Board finds these statements of probative value because the Veteran's hearing is an observable symptom about which he can testify, while his demonstrated difficulty communicating with others is an observable matter about which other lay witnesses can testify.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ["a legal concept determining whether testimony may be heard and considered"] and credibility ["a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"]).  The Board therefore accepts the statements as evidence of the Veteran's difficulty communicating with others.  

However, the lay evidence of record is not evidence that the Veteran is unemployable under the VA guidelines detailed above.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  That evidence is merely evidence of the Veteran's difficulty in certain settings.  By contrast, the evidence countering the Veteran's claim to unemployability directly addresses criteria under 38 C.F.R. §§ 3.340, 3.341, 4.16.  This evidence indicates that the Veteran is capable of obtaining and maintaining substantially gainful employment despite his service-connected hearing- and ear-related disorders.  Indeed, four separate VA examiners squarely counter the Veteran's claim to unemployability due to ear disorders, while none of the private medical evidence submitted contains medical commentary corroborating his claim.  

The March 2010 VA audiology examiner stated expressly that the Veteran's hearing loss "will not prevent him from maintaining or seeking employment though he will have some hearing difficulties in the presence of background noise."  This examiner added that the Veteran had been retired since 1987 due to permanent disability associated with nonservice-connected arthritic problems.  Another March 2010 VA examination report addressed the Veteran's employability vis a vis his otitis externa, otitis media, tinnitus, and perforated tympanic membranes.  This examiner noted recurrent otitis media and externa, resolved tympanic membrane perforations, tinnitus, and hearing loss.  The examiner noted the Veteran's statement that bilateral hearing aids enable him to hear, but that hearing was difficult in a noisy room.  The examiner concluded that the Veteran was likely not unemployable due to his bilateral ear conditions provided he worked in a quiet and sedentary setting.  The examiner also stated that the Veteran's "ear infections recur occasionally but do not prevent employment."  

Similarly, the January 2012 VA audiology examiner expressly countered the Veteran's claim to unemployability due to service-connected disorders.  As noted earlier, this examiner described the Veteran's word understanding ability as "good" provided he worked in a quiet setting.  The examiner stated that the Veteran "should be able to secure employment, in a quiet setting with face-to-face contact.  Hearing loss and tinnitus do not render the veteran unable to perform sedentary and physical types of employment."  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion).  Finally, the Board notes a March 2012 VA examination report which addressed whether the other ear-related disorders cause unemployability.  Though this report does not indicate a review of the claims file, and is not supported by a rationale, it nevertheless contains a conclusion stating that the Veteran's ear conditions do not impact his ability to work.      

In short, the Board accepts the lay evidence of record indicating that the Veteran experiences difficulty communicating as a result of his hearing loss disability.  However, the preponderance of the evidence is against his claim that he is unable to work as the result of the disability.  Therefore, the benefit-of-the-doubt rule is not for application.  38 U.S.C.A. § 5107(b).     


ORDER

Entitlement to a disability rating in excess of 50 percent for bilateral hearing loss is denied. 

Entitlement to a total disability evaluation based on individual unemployability is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs