Citation Nr: 1754370	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  11-22 424	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss.

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


REPRESENTATION

Veteran represented by:	Calvin Hansen, Attorney


ATTORNEY FOR THE BOARD

M. Showalter, Associate Counsel




INTRODUCTION

The appellant is a Veteran who served on active duty from August 1965 to June 1967.  These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2011 and November 2011 rating decisions of the Lincoln, Nebraska Department of Veterans Affairs (VA) Regional Office (RO). 

In a June 2010 decision, the Veteran's claim for a TDIU was denied after he reported that he wanted to "close out" his claim and failed to appear for an examination.  The Veteran did not appeal the Board's decision and it is final.  38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2016). 

In October 2010, the Veteran filed a new claim for a TDIU and an increased rating for all of his service-connected disabilities, reporting that his disabilities had worsened.  These claims were adjudicated in February 2011 rating decision.  In March 2011, the Veteran filed a notice of disagreement for a TDIU.  After a May 2011 statement of the case (SOC), the Veteran timely perfected an appeal for a TDIU rating in May 2011.  

In June 2011, the Veteran reported that his hearing had worsened and the RO clarified that this was a claim for increase for hearing loss.  A rating decision in November 2011 denied the increase.  The Veteran filed a notice of disagreement in June 2012 and after a September 2012 SOC, timely perfected his appeal for an increased rating for hearing loss in October 2012. 

In May 2015 and June 2016, the Board remanded the claims for further development.  


FINDINGS OF FACT

1. The Veteran's latest audiometric examinations show that he has level IV right ear hearing loss and level IV left ear hearing loss; the Veteran's worst levels of hearing loss were reported in the August 2015 audiometric examination, where he had level IV right ear hearing loss and level VI left ear hearing loss. 

2. The Veteran works on his farm and is able to drive short distances; his service-connected disabilities cause difficulties in his occupation, but do not prevent him from obtaining or maintaining substantially gainful employment.  


CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.2, 4.3, 4.85, Diagnostic Code (DC) 6100 (2016). 

2. The criteria for a TDIU rating have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321, 4.16, 4.18, 4.19, 4.25 (2016). 


REASONS OR BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The VCAA, in part, describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  The VCAA applies to the instant claims. 

The notice requirements have been met.  VA's duty to notify was satisfied by letters dated November 2010 and September 2011.  See 38 U.S.C.A. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  That letter notified the Veteran of the information needed to substantiate and complete his increased rating claim and TDIU claim, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain.  

Regarding the duty to assist, the Veteran's VA and private treatment records have been obtained.  The agency of original jurisdiction (AOJ) arranged for appropriate VA examinations which were held in December 2010, October 2011, October 2014, August 2015, and October 2016.  The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's hearing loss and unemployability in the examinations are sufficient for rating purposes.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008).  

The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal, and that no further evidentiary development is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met and, accordingly, the Board will address the merits of the claims. 

Legal Criteria - Increased Rating Hearing Loss

Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness.  The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the Veteran's average hearing threshold.  The average puretone threshold is derived from puretone audiometric testing in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the hearing acuity level.  Table VIA is used when speech discrimination tests are not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (defined in 38 C.F.R. § 4.86).  One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). 

Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 

Factual Background - Hearing Loss

Audiological examination in March 2003 revealed that the Veteran had 96% speech recognition in the right ear, 92% speech recognition in the left ear, and the following audiogram results: 


1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
20
45
65
70
50
Left Ear
25
55
90
90
65

Under Table VI, his right ear hearing loss would be at level I and his left ear hearing loss would be at level II, which would be a 0 percent compensable rating under Table VII. 

In a December 2010 audiological examination, the Veteran had a right ear speech recognition score of 84% and a left ear recognition score of 80% and the following audiogram results: 


1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
35
60
70
70
58.75
Left Ear
35
60
110
110
78.75

The examiner noted that the hearing loss in both ears was "moderately severe."  Under Table VI, his right ear hearing loss would be at level III and his left ear hearing loss would be at level V, which would be a 10 percent compensable rating under Table VII. 

VA treatment records show that in November 2010 and February 2011, the Veteran's hearing aid was repaired and reprogrammed. 

In an October 2011 audiological examination the Veteran had a right ear speech recognition score of 88% and a left ear recognition score of 68% and the following audiogram results: 


1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
45
75
75
75
67.5
Left Ear
55
75
95
95
80

Under Table VI, his right ear hearing loss would be at level III and his left ear hearing loss would be at level VI, which would be a 10 percent compensable rating.  In a rating decision dated November 2011, the RO provided the Veteran with a 20 percent evaluation for his hearing loss, based in part on the finding that the Veteran's left ear hearing loss was at a level VII under Table VII.

In an October 2014 audiological examination, the Veteran had a right ear speech recognition score of 70% and a left ear recognition score of 76% and the following audiogram results: 


1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
30
70
70
70
60
Left Ear
30
55
85
90
65

The examiner opined that the Veteran's hearing loss "should not significantly affect his ability to obtain and maintain substantially gainful employment."  Under Table VI, his right ear hearing loss would be at level V and his left ear hearing loss would be at level IV, which would be a 10 percent compensable rating under Table VII.
In an August 2015 audiological examination, the Veteran had a right ear speech recognition score of 76% and a left ear recognition score of 72% and the following audiogram results: 


1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
35
70
70
70
61.25
Left Ear
30
65
90
100
71.25

Under Table VI, his right ear hearing loss would be at level IV and his left ear hearing loss would be at level VI, which would be a 20 percent compensable rating under Table VII.  The May 2015 Board remand required the examiner to discuss the past conflicting audiology examinations.  To that end, the examiner noted that the results from the 2010, 2011, and 2014 tests were "consistent," but did not provide further explanation into the differences between the audiometric findings between examinations.   

In an October 2016 audiological examination, the Veteran had a right ear speech recognition score of 76% and a left ear recognition score of 76% and the following audiogram results: 


1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
40
70
70
70
62.5
Left Ear
35
60
85
100
70

Under Table VI, his right ear hearing loss would be at level IV and his left ear hearing loss would be at level IV, which would be a 10 percent compensable rating under Table VII.  In commenting on the previous examinations and their findings, the examiner noted that a previous error had been corrected in the 2010 audiological examination and that all the tests of record were "overall consistent and appear to be within test-retest variability."  The examiner noted that there was an improvement in lower frequency thresholds between the 2011 and 2014 tests, but that tests conducted between 2014 and 2016 were "more in line with previous tests."  Additionally, the examiner noted that threshold shifts outside the test-retest variability could have been caused by noise exposure from farming equipment or due to his age, but overall the tests were consistent "and it is known there are factors that can affect hearing tests, physiologically or otherwise."  

Analysis - Hearing Loss

A rating in excess of 20 percent for the Veteran's hearing loss is not warranted.  While audiological testing has shown a gradual worsening in the Veteran's hearing, at no period on appeal did his hearing loss reach a 30 percent evaluation under Table VII.  Even taking the Veteran's worst right ear results, level V hearing loss in October 2014, and worst left ear results, level VI hearing loss in August 2015, he would still only qualify for a 20 percent rating under Table VII.  Accordingly, there is no evidence of record that would allow the Board to grant a higher disability rating for his hearing loss.

While the previous audiometric tests provided some varying results, the latest audiometric examiner noted that the results provided were "overall consistent and appear to be within test-retest variability."  Further, the examiner noted that any discrepancies between tests could be attributed to noise exposure from farming equipment.  Because these results are largely static, there is no evidence that would warrant a higher evaluation. 

None of the audiological examinations of record reported a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz for either ear. For this reason, the criteria of 38 C.F.R. § 4.86(b) are inapplicable.  Since the Veteran's puretone levels are not 55 decibels or higher at 1000, 2000, 3000 and 4000 Hertz in any of his tests, Table VIa is not applicable. 38 C.F.R. § 4.86 (a).  

Accordingly, a rating in excess of 20 percent for hearing loss is denied. 

Legal Criteria - TDIU

An award of TDIU requires that a veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability, and that the veteran have a single service-connected disability rated at 60 percent or more, or at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  The central inquiry is whether the Veteran's service-connected disabilities are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

Factual Background - TDIU

At the time of this decision, the Veteran is service connected for adjustment disorder with depressed mood rated at 50 percent, bilateral hearing loss rated at 20 percent, and bilateral tinnitus rated at 10 percent.

Turning to the facts of the case, in a September 2005 letter, the Veteran's psychologist doubted that the Veteran would be "very successful in any attempted gainful employment based first of all on his difficulties at the present time with attentiveness and concentration."  She also noted that "his ability to govern his emotions under ordinary stress is at the present time mild to moderately poor and once more is becoming a good deal more impaired as his hearing loss becomes more of an issue for him as it does on a daily basis."  

In first addendum letter in February 2006, the Veteran's psychologist reported that the Veteran admitted he was "too sad" to work and that when he does work he didn't do it very well.  The psychologist explained that the Veteran's deteriorating mental state had been initially caused by his hearing loss and the effects it had on his social interactions.  The psychologist noted that "even the mention of [the Veteran's] hearing loss, (and the obvious symptoms of his hearing loss such as abnormally low tone and volume along with severely poor eye contact), augment significantly his crying and phenomenological statements that reveal his low self-esteem."  

In a second addendum letter dated February 2007, the Veteran's psychologist noted that the Veteran had been losing weight, sleeping poorly, and "goes absolutely nowhere whatsoever."  The psychologist noted again that the deterioration of his psychical well-being as well as his mental status was caused by his inability to hear well.  In this regard, the psychologist noted that the Veteran had become a "recluse."  The psychologist found that "it is therefore unquestionable that this individual's adherence to personal routines and daily habits has deteriorated even now to the point where his grooming is of question."  The psychologist noted that the Veteran's depression had "gone past the severe level" and that he was "extremely preoccupied with his own difficulty."  The psychologist concluded that the Veteran "is completely incapable in my opinion, of gainful employment based first of all on his amotivational behavior...  I suspect his is incapable of following simple one and two step directions in any type of competitive setting.  This individual is so reclusive as to be called pathologically asocial and under these circumstances, he really could not work alongside of other people with any degree of comfort or proficiency."  

In a third addendum letter dated May 2007, the Veteran's psychologist reported that he had evaluated the Veteran three times with "an unmistakable behavior observation of his deteriorating mood disorder."  The psychologist again concluded that the development of the Veteran's symptoms "are unquestionably in response to the stressors he experiences in the form of, 'not being able to hear what other people say to me and being ashamed to be around others.'"  The psychologist reported the development of the Veteran's mental state, noting that over the course of several years became a severe and debilitating disability.  This culminated into an "extremely pronounced diminished interest in working."  The psychologist concluded that the prognostic picture is extremely guarded if not actually negative and that the likelihood of his recovery-especially to the point of his ability to work, recreate, or in any other way, enjoin in activities, are extremely unlikely and prognostically quite poor in projection." 

In an August 2008 decision, the Board noted that the private psychologist's letters regarding the Veteran's mental disability were "inconsistent with other evidence of record, and do not adequately explain the symptoms."  There were several inconsistencies noted.  The Board noted that the private psychologist had noted severe depression on the last assessment and symptoms as extreme as mild retardation and crying spells.  VA treatment records, however, which provided evaluation from many different physicians over a several year period, did not corroborate any of those findings, and instead showed only mild findings consistent with depression.  While the private psychologist noted that the Veteran could not use hearing aids, VA treatment records showed that the Veteran requested his hearing aids be adjusted in 2005.  While the private psychologist noted that the Veteran had lost a significant amount of weight because of his psychiatric symptoms, VA treatment records show that the Veteran lost at most eight pounds over the course of several years, including several different medical procedures.  

Overall, the Board found that the contrasted findings between VA treatment records and the private psychologists finding "casts into doubt the credibility of the findings reported in the [private psychologist's] reports."  Based on this review, the Board found the private psychologist's opinions not probative. 

In January 2010, the Veteran was contacted to create an appointment for an examination to assess his ability to work, but he reported that he wanted to "close out the claim for now" because "he didn't want to hurt his chances to continue to work."  The Board accordingly denied the claim for TDIU in June 2010.  The Veteran did not appeal that decision.  Instead, the Veteran filed for a new claim for TDIU and increased evaluations for his service-connected disabilities in October 2010.  

In a psychological examination in December 2010, the examiner noted that the Veteran's psychological disability caused occasional occupational impairment. 

In correspondence from the Veteran's private physician dated June 2011, the physician opined that the Veteran was "unable to hear well enough to effectively continue his full time position as a farmer."  The physician explained that the Veteran's disabilities caused him to "become withdrawn from professional and family life."  

In a VA examination dated October 2011, the examiner noted that the private psychologist's opinions had questionable credibility, based on a review of the claims file and past VA treatment records.  Overall, the examiner opined that the Veteran's adjustment disorder by itself or in conjunction with his tinnitus and impaired hearing "would not render this Veteran totally unemployable."  

In an addendum opinion provided in October 2011, a VA examiner noted that the "Veteran's hearing loss/tinnitus alone would not significantly impact his ability to obtain/maintain substantially gainful employment," basing his opinion on "clinical experience and expertise as a licensed audiologist."  Similarly, the same examiner noted in February 2012, that the Veteran is capable of "physical or sedentary employment."  She noted that the Veteran had difficulty understanding portions of speech in higher frequencies and accordingly would have "difficulty in noisy places."  She opined, however, that "this inability to sometimes not hear the speech sounds mentioned would keep the Veteran from gainful employment.  He simply would need to control his environment in such a way that he can hear the speech signal or rely on other means of communication when he doesn't understand."      

In an October 2011 audiological examination the Veteran reported that he was "unable to function at farming as well as unable to hear changing in farming equipment noise."  The examiner concluded that the Veteran's hearing loss did impact his ability to work but opined that the Veteran's hearing loss and tinnitus alone would not significantly impact his ability to maintain gainful employment.  

In an audiological clinic note in VA treatment records dated May 2012, the Veteran reported that he was still working on the farm.  In September 2013, the Veteran reported that he was working as a farmer. 

In VA treatment records dated June 2014, the Veteran reported that he had "limited working ability and was not able to get out and work" because of depressive symptoms.  At the same time, the nurse noted that the Veteran was coping with his depressive symptoms by "working." 

In VA treatment records dated August 2014, the Veteran reported that he had been "busy on the farm," reporting that he continues to farm row crops, beans, and corn.  

In an October 2014 psychological examination, the examiner opined that "with the three service-connected conditions together, it still did not appear to support individual unemployability especially in light the Veteran is working on his farm daily."  

In an August 2015 psychological examination, the examiner noted that the Veteran's psychological symptoms caused intermittent inability to perform occupational tasks.  In a separate addendum opinion, the examiner noted that it was less likely as not that the Veteran's service-connected disabilities, considered in combination, preclude him from securing a substantially gainful occupation.  The examiner stated that while the Veteran was being treated for mental and physical health symptoms, he continued to farm the 200 acre farm he owned. 

In an August 2015 audiological examination, the examiner opined that the Veteran's hearing loss "did impact the Veteran's daily life including his ability to work."  The Veteran reported that he had problems communicating with people around him.  The examiner opined that "this degree of hearing loss would not limit any type of employment, especially in the farming industry."  

In an October 2016 audiological examination, the examiner opined that the Veteran's hearing loss "should not significantly affect his ability to obtain and maintain substantially gainful employment."  The examiner opined that the Veteran's hearing impacted his ability to work, relying on the Veteran's report that he relied on his hearing aids.  

In VA treatment records dated June 2016, the Veteran reported that he had been busy working his farm, but had let someone else do the planting for him.   

In VA treatment records dated September 2016, the Veteran reported more frequent memory issues associated with his non-service-connected Alzheimer's dementia.  A psychologist noted that the Veteran had difficulty handling complex tasks and "it is likely he would be dangerous if he were driving."  In a separate note in that same month, the Veteran reported that he was told "he cannot drive or work anymore with farm machinery."  These difficulties seem to be related to both his service-connected and non-service-connected psychological disabilities.  It was noted that he struggled with the limitations of not being able to drive, but still drove short distances.  The Veteran's wife reported at that time that she had to operate the center pivot irrigation system in the past growing season because the Veteran was unable to do so.  The Veteran reported that he planned to conduct the harvest of the crops that fall.  

Analysis - TDIU

Based on a review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities.  

Several VA examiners and treatment providers have opined that the Veteran is able to work, despite his service-connected disabilities.  While many of them have noted that his disabilities cause difficulties in his farming occupation, such as not being able to hear certain aspects of the farming machinery or being too depressed to work every day, all examiners have ultimately found that the Veteran is able to maintain employment.  These examiners based their opinions in part on their observations that the Veteran had alternative ways of operating his farm despite his hearing impairment. 

Two private opinions, one from the Veteran's psychologist and one from the Veteran's physician, have opined that the Veteran's service-connected disabilities prevent him from being able to work.  However, the Board finds these opinions to be less probative than the multiple VA opinions provided in the record.  In regard to the psychologist's opinion, the Board finds the opinion not probative because, as discussed above, it was not based on an accurate factual predicate.  As the Board noted in the August 2008 opinion, the psychologist's findings were inconsistent with VA treatment records and did not adequately explain the severity of the Veteran's reported symptoms.  See Reonal, 5 Vet. App. at 458.  Reiterating those inconsistencies, the Board noted that the private psychologist had noted symptoms as extreme as crying spells and cognitive impairment comparable to mild retardation, but VA treatment records showed only mild findings consistent with depression.  While the private psychologist noted that the Veteran could not use hearing aids, VA treatment records showed that the Veteran requested his hearing aids be adjusted in 2005.  While the private psychologist noted that the Veteran had lost a significant amount of weight because of his psychiatric symptoms, VA treatment records show that the Veteran lost at most eight pounds over the course of several years.  Overall, the Board concludes that these findings show that the private psychologist's opinions were significantly exaggerated and therefore significantly less probative than the multiple VA examiners' opinions, which are consistent with the rest of the evidence of record. 

As for the June 2011 opinion provided by the Veteran's physician, the physician did not provide an explanation as to why the Veteran's hearing loss caused him to be unable to "hear well enough to effectively continue his full time position as a farmer."  There was no explanation as to why hearing loss, even more profound than the Veteran's, could have caused an individual to be unable to farm.  Even more curious about this opinion is that despite the Veteran's hearing loss in that year, the Veteran continued to work on his farm.  Without an adequate rationale as to why hearing loss (even in combination his psychiatric symptoms) would cause unemployability, the opinion has little probative weight when assessing the Veteran's unemployability.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Finally, the record shows that at the time of this decision, the Veteran is still working his farm.  While his wife and others assist him with some tasks, as of the last VA treatment records dated September 2016, the Veteran still planned to conduct the harvest of his crops.  While his conditions may make farming more difficult, it does not appear his service-connected disabilities are preventing him from working as a farmer.  The evidence of record indicates that part of the impairment that causes the Veteran's difficulties with farming are caused by his Alzheimer's disease, which is not service connected.  Based on these facts and the opinions provided by VA examiners, the claim for TDIU must be denied.

The Board is grateful for the Veteran's honorable service. 


ORDER

Entitlement to an increased rating for hearing loss is denied.

Entitlement to a TDIU rating is denied. 



____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs