Citation Nr: 1753962	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  14-12 658	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to a rating in excess of 40 percent for service-connected bilateral hearing loss.

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


REPRESENTATION

Veteran represented by:	George T. Sink, Attorney-at-law


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty from March 1966 to February 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In April 2017, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran's VA claims file.

During the course of the pending appeal, the Veteran described an inability to retain employment due, in part, to his service-connected bilateral hearing loss.  See, e.g., VA Forms 21-8940 dated November 2012 and November 2014.  Thus, the question of entitlement to a TDIU is on appeal and will be addressed herein, as part and parcel of the increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009).


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss disability was productive of no worse than Level VIII hearing impairment in his right ear and no worse than Level VI hearing impairment in his left ear.

2.  Prior to June 6, 2013, the Veteran's service-connected disabilities did not preclude substantially gainful employment.

3.  From June 6, 2013, the evidence of record shows that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

2.  Prior to June 6, 2013, the criteria for a TDIU based upon service-connected disabilities are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017).

3.  With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU from June 6, 2013 are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and to Assist

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board finds that VA does not have a duty to assist that was unmet.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011).



II. Schedular analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2017).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities.  Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.

If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. § 4.21.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. §§ 3.102, 4.3.

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).  However, staged ratings are also appropriate 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).  Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim.

In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The Board has considered all evidence of record as it bears on the issue before it.  See 38 U.S.C. § 7104(a) (West 2012) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case").  Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record.  The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal.

As noted above, 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 (1992).  The disability rating of a hearing loss disorder is determined by applying the criteria set forth at 38 C.F.R. § 4.85.  Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz), or cycles per second, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(a), (d).

Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect.  38 C.F.R. § 4.85(b).

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).  Where impaired hearing is service connected in only one ear, the non-service connected ear will be assigned a Roman numeral I rating purposes.  38 C.F.R. § 4.85(f).

In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment.  Under its provisions, when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately.  When the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86 (2017).

An examination for the evaluation of hearing impairment for VA purposes must be conducted by a state-licensed audiologist, and must contain a pure tone audiometry test and a controlled speech discrimination test, utilizing the Maryland CNC word list.  38 C.F.R. § 4.85(a).

Here, the Veteran seeks a disability rating in excess of 40 percent for his service-connected bilateral hearing loss.  As explained in the law and regulations section above, the resolution of this issue involves determining the levels of hearing acuity.

The Veteran was afforded a VA audiological examination in December 2011, at which time the report revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
75
90
90
80
84
LEFT
75
75
70
65
71

Average pure tone threshold was 84 decibels in the right ear with speech recognition ability of 64 percent.  Average pure tone threshold was 71 decibels in the left ear with speech recognition ability of 76 percent.  When asked if his hearing loss impacted his ability to conduct activities of daily living, the Veteran responded that he has "[s]ignificant difficulty understanding conversational speech, safety concerns, often asks others to repeat."

Such examination findings translate to level VIII hearing in the right ear and level IV hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, DC 6100, this equates to a 20 percent rating.  Since the Veteran's hearing loss in the right and left ears represents an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), Table VIa may be used if it reflects a higher level of hearing loss.  The Board notes that, pursuant to Table VIa, the findings translate to level VIII hearing in the right ear and level VI in the left ear.  Applying Table VII, DC 6100, this equates to a 40 percent rating, but no higher.

The Veteran was afforded a VA audiological examination in March 2013.  The examination report documented the following pure tone thresholds in decibels:




HERTZ



1000
2000
3000
4000
Average
RIGHT
70
90
90
70
80
LEFT
75
70
65
55
66

Average pure tone threshold was 80 decibels in the right ear with speech recognition ability of 60 percent.  Average pure tone threshold was 66 decibels in the left ear with speech recognition ability of 72 percent.  The Veteran reported that he has difficulty hearing and understanding conversational speech.  The examiner additionally opined that the Veteran's "hearing loss and tinnitus should not prohibit securing and maintaining substantial gainful employment."  He explained, "[i]ndividuals with severe to profound hearing loss function well in a variety of occupations.  Hearing loss may cause some difficulty in certain settings such as listening for certain tones/signals in the frequency range of the individual's hearing loss, or where background noise interferes with verbal communications."  He continued, "[w]hile hearing loss may limit a person's ability to communicate verbally as effectively as someone with normal hearing, it has not been found to prohibit successful employment in many areas of employment."

These examination findings translate to level VII hearing in the right ear and level VI hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, DC 6100, this equates to a 20 percent rating.  Since the Veteran's hearing loss in the right and left ears represents an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), pursuant to Table VIa, the findings translate to level VII hearing in the right ear and level V in the left ear.  Applying Table VII, DC 6100, this equates to a 30 percent rating, but no higher.

The Veteran was afforded another VA audiological examination in October 2014.  The examination report indicated the following pure tone thresholds in decibels:





HERTZ



1000
2000
3000
4000
Average
RIGHT
70
90
80
75
79
LEFT
75
75
70
65
71

Average pure tone threshold was 79 decibels in the right ear with speech recognition ability of 80 percent.  Average pure tone threshold was 71 decibels in the left ear with speech recognition ability of 80 percent.  The Veteran reported "difficulty understanding speech in noisy environments."

These examination findings translate to level V hearing in the right ear and level IV hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, DC 6100, this equates to a 10 percent rating.  As the Veteran's hearing loss in the right and left ears represents an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), the findings translate to level VII hearing in the right ear and level VI in the left ear under Table VIa.  Applying Table VII, DC 6100, this equates to a 40 percent rating, but no higher.

The Veteran was most recently afforded a VA audiological examination in February 2016.  The examination report revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
80
85
90
85
85
LEFT
70
75
75
70
74

Average pure tone threshold was 85 decibels in the right ear with speech recognition ability of 88 percent.  Average pure tone threshold was 74 decibels in the left ear with speech recognition ability of 82 percent.  When asked if his hearing loss impacted his ability to conduct activities of daily living, the Veteran responded that he "cannot hear or make out what is being said with or without his hearing aids."

Such examination findings translate to level IV hearing in the right ear and level V hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, DC 6100, this equates to a 10 percent rating.  Since the Veteran's hearing loss in the right and left ears represents an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), the findings translate to level VIII hearing in the right ear and level VI in the left ear pursuant to Table VIa.  Applying Table VII, DC 6100, this equates to a 40 percent rating, but no higher.

The Veteran's VA treatment records document an on-going diagnosis of impaired hearing.  However, there are no additional audiological results documented throughout the appeal period.

Critically, there is no probative audiology evidence of record to support a rating in excess of 40 percent for the Veteran's bilateral hearing loss disability at any time during the appeal period.  The preponderance of the evidence is against the Veteran's claim for a higher rating.  Consequently, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55.

The Board in no way discounts the difficulties that the Veteran experiences as a result of his service-connected bilateral hearing loss disability.  Critically, it must be emphasized that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board must base its determination on the results of the pertinent and valid VA audiology studies.  See Lendenmann, 3. Vet. App. at 345.  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Under these circumstances, the Board finds that the record presents no basis for assignment of a rating in excess of 40 percent.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2017).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating:  (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.

The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability.  The Veteran's hearing loss is manifested by decreased hearing acuity.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech. 

The Board notes that this conclusion is consistent with the Court's holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria").  The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss, such as dizziness, vertigo, or ear pain, not contemplated by the rating criteria.

Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular 40 percent evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96.  The evidence does not show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.



III. Entitlement to a TDIU

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.  38 C.F.R. § 3.340.  If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341(a).

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a).

The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

As noted in the Introduction, the Veteran has raised a claim of entitlement to a TDIU based, in part, on his bilateral hearing loss symptomatology.  He filed a claim of entitlement to an increased rating for bilateral hearing loss in November 2012.  At that time, he was service-connected for tinnitus and bilateral hearing loss, with a combined rating of 50 percent.  In an April 2014 rating decision, the Veteran was granted entitlement to service connection for depressive disorder and a 70 percent rating was assigned from June 6, 2013; his combined rating was 80 percent from that date.  As such, the Veteran meets the schedular criteria for a TDIU from June 6, 2013.  However, he does not meet the schedular criteria for a TDIU prior to June 6, 2013.  See 38 C.F.R. § 4.16(a) (if there is only one such disability, this disability shall be ratable at 60 percent or more).

As to the period prior to June 6, 2013, the Veteran was service-connected for bilateral hearing loss and tinnitus.  He filed a claim of entitlement to a TDIU, which was interpreted as an increased rating claim for service-connected bilateral hearing loss in November 2012.  Therefore, in accordance with 38 C.F.R. § 4.16(b), the Board has considered whether the Veteran's claim for TDIU should be referred to the Director of the Compensation Service for extraschedular consideration from November 2012 to June 6, 2013.  Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted).

The Veteran previously reported that he became unemployable in April 2010.  See the VA Form 21-8940 dated November 2012.  Specifically, he stated that he was forced to close the convenience store, which he owned and operated, at that time due to his service-connected disabilities.  Id.  However, he subsequently indicated that he became too disabled to work in April 2012 (see the Report of General Information dated December 2015) and, at the April 2017 Board hearing, he reported that he last worked full-time in April 2011.

Significantly, the evidence prior to June 6, 2013 does not indicate that the Veteran is unable to obtain and maintain gainful employment due solely to his service-connected bilateral hearing loss and tinnitus.  As described above, the December 2011 VA examiner noted that the Veteran's hearing loss and tinnitus impact his ordinary conditions of daily life including his ability to work including significant difficulty understanding conversational speech, safety concerns, and asking others to repeat themselves.  However, the examiner did not indicate that the Veteran was unable to work due to his hearing loss and tinnitus disabilities.  Moreover, the March 2013 VA examiner specifically opined that the Veteran's hearing loss and tinnitus should not prohibit his ability to secure and maintain substantially gainful employment.  As reported above, the March 2013 VA examiner explained, "[i]ndividuals with severe to profound hearing loss function well in a variety of occupations.  Hearing loss may cause some difficulty in certain settings such as listening for certain tones/signals in the frequency range of the individual's hearing loss, or where background noise interferes with verbal communications."  He continued, "[w]hile hearing loss may limit a person's ability to communicate verbally as effectively as someone with normal hearing, it has not been found to prohibit successful employment in many areas of employment."  Moreover, the Veteran's attorney has not indicated that the Veteran's hearing loss and tinnitus symptomatology alone rendered him unable to gain or maintain employment at any time during the appeal period.  See, e.g., the Board hearing transcript dated April 2017 and the brief of the Veteran's attorney dated March 2017.

Crucially, the evidence of record does not reflect that the Veteran's service-connected hearing loss and tinnitus manifested symptoms of such severity as to impact his employability beyond what is contemplated by the assigned schedular rating prior to June 6, 2013.  The severity of the Veteran's service-connected symptomatology was specifically contemplated by assigned evaluations.  The Board recognizes that the Veteran submitted statements that he believed his service-connected bilateral hearing loss and tinnitus rendered him unable to gain or maintain substantial employment prior to June 6, 2013.  Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert").  The Veteran's statements are therefore competent.  However, for the above reasons, the evidence of records does not support a conclusion that his service-connected disabilities alone made him unemployable; thus, there is no basis to refer the Veteran's case for consideration of an extraschedular evaluation prior to June 6, 2013.  Id. at 1354 ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner").

As the Veteran did not satisfy the criteria for a TDIU rating under 4.16(a) and his service-connected disabilities were not such as to warrant consideration of an extraschedular rating under 38 C.F.R. § 4.16(b), the Board concludes that the Veteran's claim for TDIU does not warrant referral for extraschedular consideration prior to June 6, 2013.

With respect to the period from June 6, 2013, the question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him.  As described above, for the period from June 6, 2013, the Veteran was service-connected for bilateral hearing loss at 40 percent, tinnitus for 10 percent, and depressive disorder at 70 percent.

In support of his claim, the Veteran submitted a June 2013 letter from his treatment provider, Dr. T.W., who stated that the Veteran's "circumstance is one where his long term physical condition and psychosocial behavior is poor.  Therefore, it is highly unlikely that he will qualify for any type of employment for the foreseeable future."  In a June 2014 statement, Dr. T.W. noted that he has been treating the Veteran for major depressive disorder.  He further opined, "after careful review of his current treatment records, it is my professional opinion that he is mentally unable to obtain or maintain gainful employment solely based upon his service-connected major depression alone."

As described above, the Veteran was afforded a VA audiological examination in February 2016 at which time the examiner noted that the Veteran has "borderline/severe sensorineural hearing loss in the mid to high frequency range in both ears with fair speech discrimination in a quiet setting; expected to worsen in the presence of background noise."  The examiner continued, "[a]ppropriately fitting hearing aids should bring him more volume but he may still have some difficulty comprehending speech in crowded places, over the phones or on a job depending on the type of job.  The hearing loss with hearing aids, void of any other medical condition, should allow him to work in certain job settings."

The Veteran was afforded a VA examination in February 2016 as to his service-connected depressive disorder, at which time the examiner reported that his psychological symptoms manifested in "[o]ccupational and social impairment with reduced reliability and productivity."  The Veteran endorsed depressed mood, anxiety, suspiciousness, mild memory loss, impaired short and long term member, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting.  The examiner explained that the Veteran "has difficulty in a group of people due to hearing impairment and cannot understand conversations.  This has ramifications in the work environment, and negatively impacts his ability to maintain effective relationships and manage stress."  The examiner continued, "[h]is depression is made more significant by the inability to clearly hear what is going on around him.  He spent much of his career working in a loosely supervised environment, and performed well.  He gave up his store and office because he could not always hear people come in, or hear their conversations and requests."  The examiner stated, "[a]t this time, it appears that he is more impacted by hearing loss than by depression, and the depression is made worse by the hearing loss."

The above evidence reflects that the Veteran's bilateral hearing loss, tinnitus, and depressive disorder have a significant impact on his ability to work from June 6, 2013.  Although VA health care professionals did not specifically conclude that the Veteran's hearing loss, tinnitus, and depressive disorder symptoms render him unemployable from June 6, 2013, the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence.  Id. at 1354.

Given the significant effects of the Veteran's audiological and psychiatric abilities and his documented difficulty maintaining gainful employment, as indicated by the lay and medical evidence, the evidence is approximately evenly balanced as to whether his service connected disabilities render him unable to secure and follow substantially gainful employment.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted from June 6, 2013.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

ORDER

Entitlement to a rating in excess of 40 percent for bilateral hearing loss is denied.

Entitlement to a TDIU prior to June 6, 2013 is denied.

Entitlement to a TDIU is granted from June 6, 2013, subject to the laws and regulations governing the payment of monetary benefits.




____________________________________________
K. CONNER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs