Citation Nr: 1636416	
Decision Date: 09/16/16    Archive Date: 09/27/16

DOCKET NO.  08-35 778	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent for the service-connected bilateral hearing loss disability on a schedular and an extraschedular basis.

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1953 to September 1955.

This matter initially came before the Board of Veterans Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which evaluated the Veteran's service-connected bilateral hearing loss disability as noncompensable. The Veteran disagreed and perfected an appeal.

The case has been before the Board and remanded multiple times for necessary development. When it was before the Board in February 2013, a 20 percent rating was granted; the case was remanded to address a rating in excess of 20 percent as well as the claim of TDIU. An additional Board remand followed in July 2014, again for necessary compliance with earlier remand instructions and consistent with the Veteran's request to be rescheduled for an examination. In January 2015, the Board remanded the claim for referral to the Director, Compensation and Pension Service, for consideration of entitlement to an increased rating for hearing loss and a TDIU on an extraschedular basis. The claim has since returned to the Board for further consideration.

This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. The combined severity of the Veteran's right and left ear hearing acuity at any given time warranted an evaluation of, at most, 20 percent.  Testing results were inconclusive, due in part to lack of cooperation from the Veteran, who was noted to be able take part in conversation during the testing without significant difficulty.

2. In April 2016, the Acting Director of the VA Compensation Service denied the Veteran's claim for an extraschedular TDIU.

3. The preponderance of the evidence indicates that the Veteran has not been rendered unable to engage in substantially gainful employment by reason of his service-connected disabilities.


CONCLUSION OF LAW

1. The criteria for an evaluation in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2015).

2. The criteria for a TDIU on an extraschedular basis are not met. 38 U.S.C.A. 
 § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.16(b) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2015). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. 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.

Pursuant to the Board's January 2015 remand, the AOJ referred the Veteran's claim to the Director, Compensation and Pension Service, for consideration of entitlement to an increased rating for hearing loss and a TDIU on an extraschedular basis, and issued a supplemental statement of the case in April 2016. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's prior remands. Stegall v. West, 11 Vet. App. 268 (1998).

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Increased Evaluation for Bilateral Hearing Loss

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. 

The Veteran's bilateral hearing loss has been evaluated as 20 percent disabling under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85. In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85 .

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, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b).

Turning to the evidence of record, VA treatment records dated from September 2006 through October 2010 show that the Veteran was seen in the audiology clinic on October 26, 2006, more than a year prior to his claim. The Veteran was provided hearing aids and told to follow-up if he experienced hearing aid problems. In an October 2009 interdisciplinary report, he reported being hard of hearing. In a January 2010 social work note, it was noted that he asked his social worker why he was not getting 100 percent service connection for his hearing loss when his outside physician says he is "100% not getting any hearing back." He was told to speak to a Veteran's service officer. The treatment records do not endorse that the Veteran has difficulty communicating and seeking VA medical care due to any hearing issues.  

A VA audiological examination conducted in November 2007 obtained inconsistent results. At the examination, the Veteran reported difficulty with hearing loss and tinnitus (also service-connected), with the most difficulty reported while watching television. Pure tone threshold averages on audiometric examination were reported as 0 decibels (dB) bilaterally. The audiologist reported that the test results were unreliable. She observed that the Veteran could not repeat back any words for speech recognition threshold at the limits of the audiometer, yet could carry on a conversation with the examiner without significant difficulty. Pure tone thresholds were noted to be unreliable and inconsistent. The Veteran was reportedly reinstructed many times, but reliability did not improve.  

Private treatment records include a report of audiogram dated in October 2008 from Orlando Ear, Nose and Throat Associates conducted by a state-licensed audiologist.  On this examination, pure tone thresholds in decibels (dB) for the four frequencies used for VA evaluation were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
85
95
NR
NR
LEFT
95
105
NR
NR

(NR indicates no response).  

The Veteran's speech recognition, not measured using the Maryland CNC test, were poor in both ears, 0 percent in the right ear and 16 percent in the left ear. These results indicated a severe to profound hearing loss. An accompanying narrative indicates that the Veteran reported that he was recently told hearing aids would be of no benefit to him. He can hear almost nothing. Examination of the ears was normal. It was noted that speech recognition thresholds were 75 on the right and 80 on the left. A follow-up report in January 2009 reflects that the Veteran decided against cochlear implant surgery, and that his hearing would be treated by observation in keeping with the Veteran's wishes.  

The Board notes that the Orlando Ear, Nose, and Throat Associates report is not adequate for rating purposes because it fails to contain all information necessary to determine a VA disability rating, specifically puretone thresholds at 3000 and 4000 Hertz and Maryland CNC speech discrimination testing.  

The Veteran was afforded another VA audiological examination in October 2010, with results similar to those on the earlier VA examination. The examiner reviewed the claims folder and included a recitation of the medical history in the report. The Veteran reported difficulty in all listening situations. He reportedly had tried hearing aids in the past but they do not help. The examiner reported that the combined use of pure tone and speech recognition data is not appropriate in this case. Pure tone responses were inconsistent and the examiner was unable to establish reliable speech recognition thresholds. Word recognition was not tested due to inability to establish pure tone or speech recognition thresholds. There was poor inter-test reliability for middle ear status due to inability to obtain a seal for emittance testing. The Veteran was able to correctly respond to and follow instructions without visual cues when the examiner's voice was presented binaurally at 70 dB. However, he was unable to consistently repeat words below, at or above that level in either ear. Monitored live voice testing was attempted, and when words were presented at 65 dB in the right ear, the Veteran responded "play" to "baseball," "fly" to "airplane," and "candy" to "ice cream," and then stopped providing responses. Otoscopy showed clear canals and tympanic membranes were visualized. Thus, the examiner concluded that pure tone test response was inconsistent and unreliable bilaterally, though the Veteran did correctly respond to questions and instructions provided without visual cues when the examiner's voice was presented binaurally at approximately 70 dB. Though hearing loss was present, the examiner concluded that the degree of loss could not be determined due to the lack of reliable test results. Thus, the audiologist concluded that she could not determine the effects on occupational functioning and daily activities due to the lack of reliable test results.  

In January 2011, the Board remanded the Veteran's claim again, citing multiple duty to assist issues. The Board notes that also for consideration was the January 2011 representative's contention that it would be incongruous that the Veteran would seek to sabotage his VA examination when he is seeking a higher rating. He accordingly questioned the reliability of the VA testing equipment.  

In February 2011, the Veteran underwent private audiology consultation at Southgate HearX. A graph report of this examination is of record. The diagnosis was sensorineural hearing loss. The examiner opined that the Veteran would benefit from assistive technology and visual cues.  

The Veteran was again afforded another VA audiological examination in March 2011. The audiologist reviewed the claims folder and included a recitation of the medical history in the report. On this examination, pure tone thresholds in decibels (dB) for the four frequencies used for VA evaluation were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
45
90
95
LEFT
40
55
85
90

The puretone average on the right was 66.25 and on the left it was 67.5.  

The Veteran's speech recognition scores were again too unreliable to score bilaterally. The examiner offered that pure tone results should only be used for rating purposes due to volunteer speech recognition scores being too unreliable to score. The Veteran did not attempt to repeat words even at levels of 40 dB HL above his volunteer pure tone thresholds. Behavior observations were inconsistent with his volunteer speech recognition. Further testing suggested normal middle ear function. The Veteran was noted to have mild to profound sensorineural hearing loss. He was able to verbally respond and localize the sound by raising his hand to the ear he heard it from. These results were considered an improvement from the November 2010 examination, but it was reiterated that speech recognition scores were too unreliable to score. The examiner felt that hearing loss caused significant occupational effects because the Veteran reported that he hears speech sounds as mumbles. He has someone drive him due to hearing loss. He does not use hearing aids but he feels that he did not benefit from them. The examiner felt that the hearing loss would not cause the Veteran to be unemployable, as most occupations do not set physical requirements for hearing.  

Another VA audiological examination was provided in July 2012. The audiologist reviewed the claims folder and included a recitation of the medical history in the report. The Veteran contended that he was unemployable due to hearing loss and tinnitus. As to the Maryland CNC list test, the examiner noted that the Veteran's results were too unreliable to score. After many reinstructions, the Veteran demonstrated unreliable pure tone results. The results were significantly elevated as compared to the 2011 VA audiogram results. The Veteran demonstrated a startle response at 70 dB, which is just slightly above that which he responded to as a threshold.  During speech recognition, he did not repeat anything back when he was presented with the Maryland CNC list. He demonstrated much better hearing one-on-one in a quiet room setting. Normal middle ear function was suggested by testing. Again, the acoustic reflexes could not be tested due to probe seal leaks.  No medical follow-up was needed. The examiner opined in the diagnosis section that the Veteran had a non-organic component to his hearing loss, suspected, along with subjective bilateral tinnitus. She explained that the Veteran's volunteer responses were unreliable/invalid and not consistent with audiological findings/behavioral observations. His responses were unreliable and not consistent with medical findings even after repeated instructions. The examination results were not adequate for rating purposes. The examiner also noted that the disability had significant occupational effects, specifically noted to be hearing difficulty, but no effects on daily activities.  

The examiner concluded by stating that although the hearing loss would have significant occupational effects, it would not cause unemployability. The examiner pointed to the fact that the Veteran chooses not to wear hearing aids at this point and has not worn them for 2 to 3 years, though he reports that speech is mumbled to him and he has someone drive him around. The examiner noted in contrast to this assertion, the Veteran was able to answer questions during the interview in a quiet room setting without significant difficulties, and most occupations do not set physical requirements for hearing.  

Records were requested from the Social Security Administration (SSA), but a negative reply was received. In October 2012, after having been informed by VA that attempts to obtain his SSA records yielded a reply that the records had been destroyed, he responded by stating that he did not have SSA disability records and that he was on SSA retirement.  

In December 2012, the Veteran was afforded an additional VA examination as reflected in a Disability Benefits Questionnaire report. On this examination, pure tone thresholds in decibels (dB) for the four frequencies used for VA evaluation were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
CNT
CNT
CNT
CNT
LEFT
CNT
CNT
CNT
CNT

(CNT indicates Could Not Test)

The pure tone and speech recognition responses volunteered were unreliable. The Veteran was provided with reinstruction but the results remained unreliable. In a quiet one-on-one environment, he was able to follow all directions and answer questions reliably. But he could not respond to pure tones until they were presented at a very loud level. He would respond to tasks and questions presented over 50 dB over the microphone, but he would not repeat back words at a more elevated level.  During speech recognition testing he was provided with pauses, reinstruction and multiple word lists, however, speech was too unreliable to score. The tests results were deemed not valid for rating purposes because he did not respond consistently to pure tones and volunteered thresholds were elevated. Testing was attempted with both headphones and inserts. Speech discrimination score on Maryland CNC word list was also noted as CNT. The examiner noted language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of pure tone average and speech discrimination scores inappropriate. Finally, the examiner noted that the Veteran responded that hearing loss did not impact his daily living, including his ability to work.  

The Veteran was again provided a VA audiological examination in September 2014. On this examination, pure tone thresholds in decibels (dB) for the four frequencies used for VA evaluation were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
CNT
CNT
CNT
CNT
LEFT
CNT
CNT
CNT
CNT

(CNT indicates Could Not Test)

The pure tone and speech recognition responses volunteered were also deemed unreliable. The examiner explained that "the Veteran's responses to pure tone stimulus were inconsistent with his ability to understand instructions that were given to him via the talk forward dial at a setting of 60dBHL. The Veteran was reinstructed numerous times; however, continued to provide inconsistent responses." The examiner also noted language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of pure tone average and speech discrimination scores inappropriate. The examiner then stated that:

	[the] Veteran's pure tone and speech recognition responses obtained
      today were unreliable. Veteran was provided with reinstruction, however,
      results today continued to be unreliable. The Veteran was able to
      answers questions without visual cues reliably in person, however, he
      would not respond to pure tones until they were presented at a very loud
      level. Veteran would respond to tasks/questions when presented at 60 dB
      over the microphone, however, he offered speech reception thresholds at
      levels significantly higher than pure tone thresholds.

As to functional impairment, the examiner noted that:

that the Veteran was able to understand all instructions presented in person without visual cues (he was able to answer questions presented to him as he was walking away from the examiner) and when presented at a level of 60dBHL (normal conversational speech) when using the talk forward microphone on the audiometer. This would indicate limited to no functional impairment in a quiet setting. It is this examiner's opinion that there would be limited affect on the Veteran's ability to function and perform tasks in a work-like setting. Providing a quiet setting and one on one instructions are modifications that may be beneficial.

Thus, the Board finds there is no audiological evidence of record to support an evaluation greater than 20 percent for bilateral hearing loss. While the Board is sympathetic to the Veteran's complaints that he has difficulty hearing, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. The Board does not dispute that the Veteran's hearing loss has caused considerable difficulty and frustration. However, the opinion of the  Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his service-connected hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009).

The Board notes that none of the audiograms discussed above warrant an evaluation in excess of 20 percent. The record is replete with reference to the fact that the Veteran's results on VA audiograms and CNC testing are invalid and show "CNT" indicating could not test. The Board has emphasized in multiple remands that the Veteran must cooperate with testing if he seeks an increased rating. The only objective audiological evidence of the severity of the Veteran's bilateral hearing loss are the results of the audiograms described above. The preponderance of the evidence is against the claim for an increased evaluation. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Further, in view of these findings, there is no basis demonstrated upon which an extraschedular rating should or could be assigned.

Extraschedular TDIU

VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a).

If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 

The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

The Veteran contends that he is unemployable do to his service-connected disabilities. In this case, service connection is in effect for bilateral hearing loss, evaluated as 20 percent disabling, and tinnitus, evaluated as 10 percent disabling. His combined disability evaluation is 30 percent. Thus, he does not have a single disability rated at 60 percent disabling or a combined rating of 70 percent. Therefore, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a).

That notwithstanding, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where a Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b).

The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, and pursuant to the Board's January 2015 remand, the Veteran's claim was forwarded to the Director of VA's Compensation Service for extraschedular consideration. In April 2016, the Acting Director determined that a TDIU on an extraschedular basis was not warranted. 

The Board may now review the decision of the Director of Compensation Service with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2008).

The Board acknowledges a July 2013 VA neurotreatment report that documents some of the Veteran's educational and employment history. The report states that the Veteran completed four years of formal education before he was forced to go work in support of his family. The Veteran reported that he had difficulty learning to read, but denied having problems learning hands-on tasks or mathematics. The Veteran's post-service career included work as a delivery driver, then for a soft drink company, and finally in a parking garage until his retirement around 1995. The report also suggested that the Veteran has "a developmental phonological processing disorder (dyslexia) superimposed on an individual with limited intellectual ability and substandard educational attainment/opportunity." 

After a review of the evidence of record, the Board finds that extraschedular TDIU is not warranted. In this regard, multiple VA examiners have noted that the Veteran was able to answer questions and converse during the interview portion without significant difficulties, but audiological testing continued to yield unreliable and inconsistent results. Most examiners noted that the Veteran would be able to work in a quiet setting. Specifically, the September 2014 examiner explained that the Veteran's hearing loss would have a "limited affect on the Veteran's ability to function and perform tasks in a work-like setting." Although the July 2013 neurotreatment report states that the Veteran has dyslexia and that he has substandard educational attainment/opportunity, this is not dispositive of unemployability for VA purposes.

In sum, the Board finds that the evidence of record does not show that the Veteran is precluded from securing or following substantially gainful employment as a result of his service-connected disabilities in order to warrant TDIU on an extraschedular basis. As such, the preponderance of the evidence is against the Veteran's claim and that the benefit of the doubt does not apply. Therefore, an extraschedular TDIU is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an evaluation in excess of 20 percent for the service-connected bilateral hearing loss disability on a schedular and an extraschedular basis is denied.
 
Entitlement to service connection for a TDIU on a schedular and an extraschedular basis is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs