Citation Nr: 1329125	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  13-18 607	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to an increased disability evaluation for bilateral hearing loss disability, currently rated as 80 percent disabling.

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


REPRESENTATION

Appellant represented by:	Iowa Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Antoinette Chance, Associate Counsel



INTRODUCTION

The Veteran served on active duty with the United States Army from April 1943 to February 1946, during the World War II era.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Des Moines, Iowa, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which continued the 80 percent rating for a bilateral hearing loss disability and denied entitlement to TDIU.

The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper files or are irrelevant to the issue 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.  The Veteran's right or left ear hearing acuity has not been shown to be worse than Level X at any time during the appeal period.

2.  The rating criteria for hearing loss disabilities reasonably describe the Veteran's disability level and symptomatology, and there are no unusual or exceptional factors that render the application of the schedular criteria standards impractical.

3.  A bilateral hearing loss disability, the Veteran's only service-connected disability, is not sufficiently incapacitating as to prevent him from obtaining and retaining substantially gainful employment, without regard to his age or non-service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 80 percent for the Veteran's bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. § 3.102, 4.85, 4.86, Diagnostic Code 6100.

2.  The criteria for entitlement to a TDIU have not been met or approximated.  38 U.S.C.A. § 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Regarding the claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A December 2012 VCAA letter provided such notice. 

With regard to the Veteran's claim for a TDIU, such claim was received in August 2012. The same December 2012 VCAA letter explained the evidence necessary to substantiate the claim for a TDIU. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter was provided prior to initial adjudication of the claim in February 2013 and explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA met its duty to notify with respect to both claims for an increased rating and for a TDIU.

With regard to the duty to assist, the claims file contains service treatment records, reports of VA post-service treatment from VAMC Des Moines, and reports of VA examinations from October 2008, May 2010, and January 2013. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); See also 38 U.S.C.A. § 5103A(a)-(c); 38 C.F.R. § 3.159. Although the Veteran is receiving retirement benefits from the Social Security Administration, he has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2).

Further, VA provided the Veteran a VA audiology examinations in January 2013 and obtained a medical opinion as to the impact of the Veteran's hearing loss disability on his social and occupational functioning and on his employability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the instant case, VA examiners expressed familiarity with the Veteran's disability picture, reviewed the contents of the Veteran's claims file, conducted examinations which included the certified audiometry required for a proper determination in the matter, (Maryland CNC Test and puretone threshold evaluations), and rendered opinions that are well-reasoned and consistent with the evidence of record. The Veteran has not argued, and the record does not reflect, that these examinations or opinions were inadequate for rating purposes, thus the Board finds that the VA examinations provided were adequate.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate each claim has been obtained. Accordingly, the Board will address the merits of the claims.

Law and Regulations- Increased Rating for Bilateral Hearing Loss

Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85.

To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Examinations are conducted using the controlled speech discrimination tests (Maryland CNC), together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to table VII, also referenced in 38 C.F.R. § 4.85, to determine the veteran's disability rating.

When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or 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. Each ear will be evaluated separately. In the latter instance, that numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86(a) and (b) (exceptional patterns of hearing impairment).

Analysis- Increased Rating for Bilateral Hearing Loss

Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed.

The only audiometry tests of record suitable for rating purposes conducted during the appeal period are those conducted in January 2013 (the May 2010 audiometry results are included for historicaland  comparison purposes only). 

For comparison purposes, audiometry on authorized audiological evaluation in May 2010 revealed that left and right ear speech discrimination scores were 36 and 40 percent respectively, and puretone thresholds (air conduction), in decibels, were:


1000Hz
2000Hz
3000Hz
4000Hz
Left
90
100
105
105
Right
65
95
105
105

Based upon the results of this examination, in an August 2010 rating decision the RO increased the Veteran's prior noncompensable rating to 80 percent using Tables VI and VII. See 38 C.F.R. §§ 4.85, 4.86. 

The Veteran subsequently filed a claim for an increased disability rating in August 2012 in conjunction with his claim for a TDIU.  

Pursuant to the development of the Veteran's claim, two separate VA audiology examinations were conducted in January 2013 by two different examiners.

Specifically, a January 3, 2013 VA examination conducted by a VA  Physician's Assistant revealed that left and right ear speech discrimination scores were 44 and 52 percents respectively and  puretone thresholds (air conduction), in decibels, were:


1000Hz
2000Hz
3000Hz
4000Hz
Left
75
90
95
105
Right
60
65
70
90

As all puretone thresholds in both ears in each of the four frequencies (1,000, 2,000, 3,000, 4,000 Hertz) were 55 decibels or greater, an exceptional pattern of hearing loss was shown in each ear. See 38 C.F.R. § 4.86. Hence, the disability may be rated under Table VI or Table VIA, whichever is to the Veteran's advantage. Table VI is more advantageous to the Veteran's January 3, 2013 results. Under Table VI, such hearing acuity constitutes Level XI in the left ear and Level VIII in the right ear, which results in a 50 percent rating under 38 C.F.R. § 4.85; Diagnostic Code 6100.

During this January 3, 2013 examination, the Veteran alleged that his hearing loss disability had worsened since his last examination. The record reflects that the most recent audiology examination prior to the January 3, 2013 examination was in May 2010 (outside of the applicable appeal period). Such examination results (see above) revealed that the Veteran's disability warranted an 80 percent rating. However, when compared with the January 3, 2013 results, which warranted a 50 percent rating, it appears that the Veteran's hearing acuity has actually improved. Additionally, the examiner opined, in essence, that while the Veteran's hearing loss is limiting, it would not preclude him from obtaining gainful employment.

Just 5 days later, a January 8, 2013 VA examination conducted by a VA Audiologist revealed that left and right ear speech discrimination scores were 46 and 50 percents respectively and puretone thresholds, in decibels, were:


1000Hz
2000Hz
3000Hz
4000Hz
Left
50
60
60
70
Right
50
50
65
75

Under Table VI, such hearing acuity constitutes Level VIII bilaterally, which also results in a 50 percent rating under 38 C.F.R. § 4.85; Diagnostic Code 6100. Again, this indicates an improvement in the Veteran's hearing acuity when compared to the May 2010 examination results. 

In the February 2013 rating decision and June 2013 statement of the case, the RO explained that although there was evidence of improvement shown by the objective medical evidence on VA examination in January 2013, there was no evidence of sustained improvement (presumably to explain why they had not proposed to reduce the current 80 percent rating assigned). 

During the January 8, 2013 examination, the examiner opined that the Veteran's hearing loss does not impact the Veteran's ordinary conditions of life, or his ability to work. Specifically, she stated "He has been issued VA provided hearing aids. This hearing loss alone should not significantly affect vocational potential or limit participation in most work activities." The Veteran had the opportunity to elaborate on how the disability allegedly impacts his life and ability to work, however, the recorded notes only suggest that the Veteran stated that he was retired from the pool sales and maintenance business.

While the Veteran is competent to report the symptomatology he is experiencing, a lay person, without supporting audiometry, is not competent to establish the level of his hearing disability by his own opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As discussed above, the rating of a hearing loss disability involves the mechanical application of the rating schedule to findings of controlled audiometry, which here do not result in a rating in excess of the 80 percent rating currently assigned. Furthermore, the Veteran's allegation of worsening is directly contradicted by the medical evidence of record. Specifically, the audiometry results show that during both examinations the Veteran's hearing acuity warranted a 50 percent rating, a notable improvement in comparison to the May 2010 audiometry results, which warranted an 80 percent rating. The Board finds that the Veteran's broad allegation that his disability has worsened is not credible in the face of objective medical evidence to the contrary, and therefore affords full probative weight to the January 2013 VA examinations.

The Board has considered whether referral for extraschedular consideration is indicated. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. 

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. 

Here, the schedular criteria are adequate. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Hence, the rating criteria contemplate the Veteran's symptomatology. This Veteran does not demonstrate an exceptional pattern of hearing loss which requires adjustment of the basic formula. 38 C.F.R. § 4.86. The functional effects of the Veteran's hearing loss are not so severe as to render the schedular criteria inapplicable. See generally Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The preponderance of the evidence is against the Veteran's claim for increase. Accordingly, the appeal in this matter must be denied.

Law and Regulations-TDIU

A TDIU is warranted where 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 service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated 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 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. 38 C.F.R. § 4.16(a).

The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided, that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule. 38 C.F.R. § 4.15.

Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the veteran resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356  (1991). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, 1 Vet. App. at 358. The question in a total rating case based upon individual unemployability due to service-connected disability is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Id. (citing 38 C.F.R. §§ 4.1, 4.15).

A TDIU requires that the veteran's service-connected disabilities are sufficient to produce unemployability without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.

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 totally disabled. Thus, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a)-(b).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b).

Analysis- TDIU

The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected bilateral hearing loss disability and therefore is entitled to a TDIU. 

In his August 2012 claim for a TDIU, the Veteran reported that he became unable to work in 2012 and that he last worked full time in January 2012. He indicated that he worked as the owner and manager of a pool sales and maintenance company from 1970 to January 2012. He advised that he completed high school and three years of college before he was too disabled to work.

The Veteran's service-connected bilateral hearing loss disability is currently rated as 80 percent disabling, and is his only service-connected disability. Bilateral hearing loss is considered a single disability, and therefore satisfies the schedular rating requirement (60 percent) for a TDIU rating. 38 C.F.R. § 4.16. What remains to be determined is whether the functional impairment associated with this disability is of such nature and severity as to preclude substantially gainful employment.

In the report of the January 2013 VA examination, the examiner noted that the Veteran's hearing loss, while limiting, does not preclude him from all types of gainful employment. He opined that the Veteran is capable of continuing employment and that he would likely benefit from working in a low noise environment where limited verbal interaction is necessary. Lastly, he noted that safety measures geared towards the hearing impaired would be necessary.

While it may well be that, as the Veteran alleges, he is unable to engage in the pool industry (assuming that it is retail and customer service driven) due to his disability, there is nothing in the record to show or suggest that he is unable to work in any number of substantially gainful occupations due to his hearing loss alone. The January 2013 examiner specifically opined that the hearing loss does not render him unemployable and that it would have an impact only on the types of employment that involve a noisy environment or require extensive verbal interaction. The opinion was based upon a thorough review of the claims file, a review of the Veteran's employment history, and the audiometric examination of the Veteran.  Moreover, the examiner offered a detailed and plausible rationale for his decision.  The record provides no basis for finding that due to his hearing loss, the Veteran would be incapable of participating in other types of gainful employment. He has not provided allegations or argument to the contrary.

In summary, the overall evidence does not show that the Veteran's service-connected disability is of such nature or severity as to prevent his participation in any regular substantially gainful employment consistent with his education and experience. Hence, the Board concludes that the preponderance of the evidence is against the claim in that it shows that the Veteran is not precluded from all employment due to his service-connected bilateral hearing loss disability. The benefit of the doubt doctrine does not apply, therefore, his claim for a TDIU must be denied.


ORDER

Entitlement to an increased rating for bilateral hearing loss disability, currently rated as 80 percent disabling, is denied.

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs