Citation Nr: 1334444 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-35 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability rating greater than 40 percent from April 18, 2011, for a service-connected bilateral hearing loss disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Attorney, John S. Berry ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1954 to February 1956. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from April 2009, September 2010, March 2011 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A review of Virtual VA reveals additional VA treatment records relevant to the claims. Procedural History Bilateral Hearing Loss In December 1998, the RO awarded the Veteran service connection for a bilateral hearing loss disability; a noncompensable disability rating was assigned, effective August 5, 1997. The RO increased this rating to 30 percent, effective December 29, 1998; to 40 percent, effective August 14, 2000; and to 50 percent, effective April 27, 2005. In January 2009, the Veteran filed a claim for increase for his bilateral hearing loss disability. In the above-referenced April 2009 rating decision, the RO denied the Veteran's claim for an increased rating. The Veteran disagreed with that decision, and perfected an appeal as to that issue. During the pendency of the appeal, the RO reduced the Veteran's disability rating from 50 to 30 percent, effective January 1, 2011. See the September 2010 rating decision [as corrected by the September 2010 SSOC, page 3]. In November 2010, the Veteran filed a Notice of Disagreement with the RO's decision to reduce his rating. Following the Board's September 2011 remand, the RO addressed the propriety of the reduction from 50 to 30 percent in a September 2011 statement of the case (SOC). In October 2011, the Veteran perfected a timely appeal of the issue by filing a VA Form 9. The Board adds that in February 2011, the Board remanded the Veteran's increased rating claim for additional evidentiary development - in particular, so that the agency of original jurisdiction (AOJ) could schedule the Veteran for an updated VA audiological examination. Such was achieved, and the AOJ readjudicated the Veteran's claim for increase in a May 2011 supplemental statement of the case (SSOC). Based on the results of the newly-obtained VA examination, the RO increased the Veteran's hearing loss rating from 30 to 40 percent, effective April 18, 2011. See the May 2011 SSOC, pages 3 and 4. The Veteran has expressed continued dissatisfaction with his current rating, and has made clear his desire to proceed with his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The Board again remanded this claim in May 2012 for consideration of additional evidence and readjudication of the claim. Most recently, in January 2013, the Board denied the Veteran's claims for disability ratings greater than 50 percent prior to January 1, 2011, and greater than 30 percent from January 1, 2011, to April 18, 2011. The Board remanded the claim for a rating in excess of 40 percent from April 18, 2011, for additional development. This requested development has been completed and the case is now before the Board for further appellate consideration. TDIU In September 2011, the Board found that the Veteran had reasonably raised the issue of entitlement to a TDIU during the pendency of his appeal for an increased rating for a bilateral hearing loss disability. In light of the Court of Appeals for Veterans Claims' holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board considered the TDIU claim as part of his pending increased rating claim and remanded the matter for AOJ consideration in conjunction with the increased rating claim on appeal. The RO subsequently denied the claim in a November 2011 rating decision. The Veteran disagreed with that determination and perfected an appeal as to this issue. In May 2012 and January 2013, the Board remanded this claim as it found that it was inextricably intertwined with the claim for increase for a bilateral hearing loss disability. The claim has since been readjudicated and it is now before the Board for further appellate consideration. 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. From April 18, 2011, audiometric examinations correspond to no greater than a Level VI hearing loss for the right ear and a Level IX hearing loss for the left ear. 2. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected bilateral hearing loss disability are inadequate. 3. The Veteran's service-connected disabilities include: major depressive disorder, rated as 10 percent disabling since May 15, 2009; tinnitus, rated as 10 percent disabling since June 19, 2010, and; bilateral hearing loss rated as 50 percent disabling prior to January 1, 2011, 30 percent disabling from January 1, 2011, to April 18, 2011, and as 40 percent disabling since April 19, 2011. His combined disability ratings are 60 percent from May 15, 2009, to December 31, 2010, 40 percent from January 1, 2011, to April 17, 2011, and 50 percent from April 18, 2011. 4. The Veteran's service-connected disabilities are not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. From April 18, 2011, the criteria for the assignment of a disability rating higher than 40 percent for a service-connected bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2013). 2. The criteria for referral of the Veteran's bilateral hearing loss disability for consideration on an extra-schedular basis are not met. 38 C.F.R. § 3.321(b)(1) (2013). 3. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence in the Veteran's claims file, his Virtual VA file, and his and his attorney's multiple contentions. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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). I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. In correspondence dated in March 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for increase for his bilateral hearing loss disability. In correspondence dated in September 2011, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for entitlement to a TDIU. The letters provided notice of what evidence was to be provided by him, and what part VA would attempt to obtain. The letters also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, the Board finds that the Veteran's attorney has demonstrated actual knowledge of how to substantiate the claims on appeal. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims for increase for bilateral hearing loss and entitlement to a TDIU, and, as warranted by law, affording him VA examinations. The Veteran underwent VA audiological examinations in April 2009, June 2010, April 2011, and in November 2011, an addendum opinion was obtained pertaining to functional and occupational effects of the Veteran's bilateral hearing loss disability. The Veteran also underwent VA mental disorders examinations in July 2009 and November 2011. These examinations are adequate for the purpose of adjudication of the claims. The examination reports reflect that the examiners reviewed the claims file, electronic VA treatment records, and/or the Veteran's reported history of the respective disability. The examiners recorded his current complaints, conducted appropriate examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examinations in combination with the other evidence of record are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically with respect to audiological examinations, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2013). The Court also noted that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, while the Veteran's attorney has regularly cited law and regulations pertinent to the adequacy of VA examinations, neither he nor the Veteran have asserted that there is any specific deficiency in the audiological examinations conducted on connection with the claims on appeal. Further, the VA examination reports document the Veteran's problems with difficulty understanding speech, especially in noisy environments, and the effects of his hearing loss disability on his prior occupation in realty. Thus, as contemplated by Martinak and as directed by 38 C.F.R. § 4.10, the examiners have discussed functional effects of the Veteran's hearing loss in their respective reports of audiological examination. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. II. Increased Rating - Bilateral Hearing Loss from April 18, 2011 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate, however, in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). As noted in the Introduction, the current appeal stems from a January 2009 claim for increase for a bilateral hearing loss disability wherein the Veteran asserted that it had worsened. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz; and 70 decibels or more at 2000 Hertz). 38 C.F.R. § 4.86. On April 18, 2011, the Veteran underwent a VA audiological examination. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 70 65 65 65 LEFT 75 75 65 90 Puretone threshold averages were 66 decibels in the right ear and 76 decibels in the left ear. Speech audiometry using the Maryland CNC word list showed a speech recognition ability of 68 percent in the right ear and 44 percent in the left ear. Application of the results from the April 2011 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level VI hearing loss in the right ear and Level IX hearing loss in the left ear. Where hearing loss is Level IX in the worse left ear and Level VI in the better right ear, a 40 percent evaluation is assigned under Table VII. 38 C.F.R. § 4.85 (2013). Additionally, findings on this examination warrant consideration under 38 C.F.R. § 4.86 for an exceptional pattern of hearing impairment. Application of the results from the April 2011 examination to Table VIa in 38 C.F.R. § 4.86 yields findings of Level V hearing in the right ear and Level VI hearing loss in the left ear. Where hearing loss is at Level VI in the worse left ear and level V in the better right ear, a 20 percent evaluation is assigned under Table VIa. 38 C.F.R. § 4.86 (2013). VA outpatient audiology treatment records dating since April 2011 show that the Veteran has received routine maintenance and adjustments for his VA issued bilateral hearing aids. Also, as noted in the Board's January 2013 remand, the Veteran underwent a VA audiological evaluation in September 2012 for the purpose of obtaining an updated hearing test and to see if there was a better set of hearing aids available for him to use. Unfortunately, however, audiometric findings show that speech discrimination scores obtained at that time were not obtained using the Maryland CNC Test, as mandated under VA regulations for rating purposes. 38 C.F.R. § 4.85. In the absence of such information, audiometric findings during the September 2012 audiometric evaluation cannot be used for determining the extent of the Veteran's hearing loss. Significantly, however, the September 2012 audiology note states that puretone audiometry at that time showed stable thresholds when compared to audiometric findings in April 2011. Thus, there is no suggestion that the Veteran's hearing loss disability has worsened since it was most recently evaluated during VA audiology examination in April 2011. Following a review of the record, the Veteran's contentions, and applicable law and regulations, the Board finds that since April 18, 2011, the 40 percent disability rating currently in effect for the Veteran's bilateral hearing loss disability is appropriate. Based upon the rating criteria for hearing impairment based on puretone threshold average and speech discrimination, under table VI, the Veteran's right ear, at its worst, has a designation of VI, and his left ear, at its worst, has a designation of Level IX. Under Table VII, his bilateral hearing impairment warrants a 40 percent evaluation effective April 18, 2011, which is the date an increase in bilateral hearing loss was shown. 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. The Board has considered the lay statements provided by the Veteran and documented in the VA treatment records. As was indicated above, however, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, there is no evidence of a change in the Veteran's hearing sufficient to warrant the assignment of an evaluation higher than 40 percent at any time from April 18, 2011. The probative medical evidence does not show the Veteran's hearing loss has ever reached the criteria necessary for an evaluation in excess of 40 percent currently assigned from April 18, 2011. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Extraschedular Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation for his bilateral hearing loss disability on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which 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) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 attendant thereto 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected hearing loss disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports difficulty understanding speech in certain situations such as over the phone and in the presence of background noise. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. The simple fact that the Veteran's hearing disability does not satisfy the numerical criteria for the assignment of disability ratings in excess of that presently assigned under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. In support of this conclusion, the Board notes that in April 2008, an administrative review was conducted by the Director of Compensation and Pension services to determine whether an extra-schedular evaluation was warranted for bilateral hearing loss under 38 C.F.R. § 3.321(b)(1). Significantly, at the time the case was reviewed in April 2008, the evidence and complaints pertaining to hearing loss were essentially the same as they are now. Specifically, in April 2008, the Veteran was retired from his job as a realtor due to hearing loss. Moreover, there was competent medical evidence attesting to the fact that it would be difficult for the Veteran to maintain employment as a realtor due to his hearing loss and difficulty communicating. Notwithstanding, however, the Director noted the Veteran's skills and abilities and stated that impairment in a chosen occupation does not translate into an obvious or exceptional disability picture that renders utilization of the regular rating criteria as impractical; thus requiring the assignment of an extra-schedular evaluation. The Board also observes that at the time of the April 2008 review by the Director, the numerical values noted for puretone threshold averages were similar to what they are during the period currently under consideration, and speech discrimination scores at the time of the April 2008 review were significantly worse than they have been shown to be since April 18, 2011. Thus, as demonstrated by the reduction in the assigned disability rating for the Veteran's bilateral hearing loss, his hearing is shown to have improved during the periods now under consideration as compared to when the case was reviewed by the Director in 2008. Moreover, although the Veteran was told and has reported that hearing aids likely would not improve his hearing due to middle ear dysfunction, the evidence of record demonstrates otherwise. Indeed, a November 2011 VA audiology clinical treatment note shows that the Veteran reported that he enjoys being able to hear the sounds of music and birds. Also, VA audiology treatment records show that the Veteran consistently reported good aided gain with his hearing aids with satisfactory sound quality. III. TDIU The Veteran contends that he retired from his usual occupation as a real estate agent in 1998 due to his service-connected bilateral hearing loss disability and that he is currently unemployable due to service-connected disability. 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "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." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned if 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 disabilities, provided that 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 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities resulting from common etiology are considered as one disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). The Veteran in this case is service-connected for the following disabilities: major depressive disorder, rated as 10 percent disabling since May 15, 2009; tinnitus, rated as 10 percent disabling since June 19, 2010, and; bilateral hearing loss rated as 50 percent disabling prior to January 1, 2011, 30 percent disabling from January 1, 2011, to April 17, 2011, and as 40 percent disabling since April 18, 2011. His combined disability ratings are 60 percent from May 15, 2009, to December 31, 2010, 40 percent from January 1, 2011, to April 17, 2011, and 50 percent from April 18, 2011. In that the Veteran's service-connected acquired psychiatric disability is secondary to his hearing loss disability, the Board concludes that the Veteran's service connected disabilities (depression, hearing loss disability, and tinnitus) share a common etiology. Thus, the schedular threshold requirements for establishing entailment to TDIU are met prior to January 1, 2011. See 38 C.F.R. § 4.16(a). The schedular threshold requirements are not met after January 1, 2011 as his combined evaluation was not 60 percent or greater. Nevertheless, rating boards should submit to the Director, Compensation and Pension Services, 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 set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Educationally, the Veteran completed his high school education and attended college for three years, but did not graduate. He spent one year in music and two years in business administration. On review of the record, the Board finds the Veteran is not unemployable by reason of his service-connected hearing loss, tinnitus, and major depressive disorder disabilities prior to January 1, 2011, and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration from January 1, 2011, is not warranted. VA treatment records and examination reports document the Veteran's consistent and credible reports that in or around 1998, he retired due to difficulty communicating as a result of hearing loss. VA treatment records and examination reports also provide competent and credible evidence that receptive communication is difficult for the Veteran due to hearing loss. Following audiological examination in April 2005, the examiner provided an addendum opinion in which he stated that it was his professional opinion that the Veteran's ability to work as a real estate agent would be severely hampered based on the severity of his hearing loss; particularly his poor word recognition ability. He stated that amplification would only provide minimal assistance and would not overcome the distortion introduced by his damaged inner ear. He opined that it was very unlikely that the Veteran would find work as a real estate agent again. In an April 2008 administrative review of the Veteran's hearing loss disability by the Director of Compensation and Pension Service, it was noted that the clinical evidence is indisputable that the Veteran's hearing loss hampers his ability to work as a realtor due to communication impairment; however, the record shows that he is not precluded from obtaining other forms of substantially gainful employment as evidenced by his reports that he was able to perform skilled labor required to renovate rental properties. The Director stated that an individual's impairment in a chosen occupation does not translate into an obvious or exceptional disability picture that renders utilization of the regular rating criteria as impractical requiring the assignment of an extra-schedular evaluation. During audiological examination in April 2009, it was noted that the Veteran primarily relied on lip-reading for communication. The examiner stated that hearing loss has significant effects on his occupational activities. Also in April 2009, a VA primary care physician noted that the Veteran was very hard of hearing and that it was difficult to communicate with him. In May 2009, the Veteran indicated that he was unable to socially interact. He stated that communication was impossible and almost non-existent. He stated that he quit his job in real estate due to his inability to effectively communicate. During a July 2009 mental disorders examination, the Veteran stated that he had been self-employed since 2 years prior doing yard and handyman work. He mowed a lawn once every two weeks for 20 dollars. The examiner on that occasion stated that the Veteran did not meet the diagnostic criteria for diagnosis of depressive disorder. He stated that impairment in the Veteran's social and occupational functioning due to psychiatric symptoms was clinically insignificant. In December 2009 a VA primary care note and letter, both written by Dr. T.J., stated that the Veteran's ability to work was impaired due to depression secondary to hearing loss. In August 2010, the Veteran was fitted with and issued bilateral hearing aids for the first time. He reported good aided gain and satisfactory sound quality. It was noted that he should benefit in many situations. The audiologist who conducted the April 2011 VA audiological examination opined in November 2011 that given proper amplification used on a consistent basis, the Veteran could maintain employment. She stated that while communicating in the telephone would be difficult, with written instructions or commands he could maintain employment. Additionally, following a VA mental disorders examination in November 2011, the examiner opined that the Veteran's service-connected major depressive disorder resulted in occupational and social impairment due to mild or transient symptoms The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. In reaching this conclusion, the Board has considered the assertions of the Veteran and his attorney that service-connected hearing loss, tinnitus, and major depressive disorder disabilities render the Veteran unable to work. In this regard, the Board recognizes that the Veteran is competent to describe his symptomatology, to include the symptoms and limitations posed by his service-connected disabilities. However, the Board places far more probative weight on the objective medical evidence and the opinions of the November 2011 audiological and mental disorders examiners in determining whether his service-connected disabilities render him unemployable. As noted, the VA examiners undertook a detailed review of his documented medical records and performed complete psychological and audiological examinations. Thereafter, the examiners opined that the Veteran's major depressive disorder only had mild effects on his occupational functioning and the audiologist opined that with amplification, used on a consistent basis, the Veteran could maintain employment. In this regard, the Board acknowledges the attorney's numerous statements of records, the most recently of which, is dated December 13, 2012. Therein, he stated that the profession of real estate is extremely dependent on the ability to quickly communicate and relay information and the desires of clients. He stated that without the ability to speak on the phone reliably, the Veteran cannot possibly expect to obtain employment in his profession. Similarly, in November 2011, the Veteran's attorney asserted that the November 2011 opinion that the Veteran is able to obtain and maintain substantially gainful employment is unrealistic. He stated that the Veteran's need for written commands and or instructions would not be tolerated or made possible by a potential employer. He stated that the November 2011 audiological opinion as it pertains of occupational impairment is unrealistic. In this regard, while the Veteran's hearing loss and tinnitus interfered with his occupational functioning in the performance of his real estate related duties and the Veteran's more recent work history has been handyman and yard work, the weight of the evidence does not show that his service-connected disabilities, either alone or in combination, have prevented him from engaging in all types of full-time employment. Indeed, as noted by the psychologist who performed the November 2011 mental disorders examination, the Veteran is in excellent physical shape and his mental capacity is unremarkable. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU at any time, and that referral for consideration of entitlement to TDIU on an extraschedular basis is not required. In sum, the Board has found the Veteran to not be unemployable due to service-connected disabilities. Accordingly, the criteria for referral of the claim for consideration of a TDIU on an extraschedular basis are not met. As the preponderance of the evidence is against the claims decided herein, the benefit-of-the-doubt doctrine is not applicable and the claims are denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating greater than 40 percent from April 18, 2011, for a service-connected bilateral hearing loss disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs