Citation Nr: 1754569	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  16-30 077	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to an evaluation in excess of 50 percent for bilateral hearing loss.

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


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran, his spouse, and his daughter



ATTORNEY FOR THE BOARD

T. Joseph, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from December 1954 December 1956.  During his period of service, the Veteran earned the Good Conduct Medal.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied entitlement to a rating in excess of 30 percent for bilateral hearing loss; and a December 2014 rating decision of the VA RO in Louisville, Kentucky, which, in pertinent part, denied entitlement to a rating in excess of 50 percent for bilateral hearing loss, and denied entitlement to TDIU.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  For the entire period on appeal, the Veteran's right ear hearing loss has had a Numeric Designation of no greater than VIII as per Table VI of the VA schedule of ratings. 

2.  For the entire period on appeal, the Veteran's left ear hearing loss has had a Numeric Designation of no greater than IX as per Table VI of the VA schedule of ratings.

3.  Resolving any doubt in the Veteran's favor, his service-connected disabilities render him unable to gain or maintain substantially gainful employment.
CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 50 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 4.1, 4.85, 4.86, Diagnostic Code 6100 (2017).

2.  The Veteran meets the schedular requirement for TDIU, and the effects of his service-connected disabilities have rendered him unemployable.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Increased Rating - Bilateral Hearing Loss

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  See 38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when assigning disability ratings.  See generally 38 C.F.R. § 4.1.  Where entitlement to compensation already has been established and 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).  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Hearing impairment is evaluated pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100.  Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85, Tables VI, VII.  To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness.  Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores.  The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment.  Id.  

Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned (Table VIA).  This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more.  38 C.F.R. § 4.86.  Each ear is to be evaluated separately under this part of the regulations.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran seeks an increased evaluation for his service-connected bilateral hearing loss, which is currently evaluated as 50 percent disabling.  

The Veteran underwent a VA examination in February 2014.  The examiner noted that puretone test results were inconsistent, as the Veteran did not cooperate for valid results.  The Veteran's speech reception thresholds were inconsistent with the pure tone results and positive Stenger results were noted at 500 and 2000 Hz.  The examiner further noted that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, and inconsistent word recognition scores, that made combined use of puretone average and word recognition scores inappropriate.

In an April 2014 notice of disagreement, the Veteran contended the statements regarding his lack of cooperation during the February 2014 VA examination were untrue.  He reported that his hearing was a lot worse and he could not hear.  He further stated that he had no intent not to cooperate fully with the examiner. 

In September 2014, the Veteran appeared for a VA examination.  The Veteran reported that he did not understand people's voices or words, nor could he understand when using the telephone.  He further reported that he was unable to hear at all without his hearing aids.  The audiological evaluation shows that he exhibited puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
40
65
80
85
LEFT
25
35
75
95
105+

The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 68 decibels in the right ear and 78 decibels in the left ear.  The speech recognition scores on the Maryland CNC word list were 56 percent in the right ear and of 40 percent in the left ear.

Applying the test results of the September 2014 audiogram to Table VI of the Rating Schedule results in a Roman numeric designation of Level VIII for the right ear, and Level IX for the left ear.  Applying the Roman numeric designations to Table VII, the result is a 50 percent rating.  

The Veteran underwent a VA examination in September 2015.  The examiner noted that the Veteran was not cooperative for testing.  His speech reception thresholds were not in agreement with the puretone average.  The Veteran initially gave better responses on puretone testing.  However, when rechecked, he gave worse responses.  He did not consistently respond to puretone testing.  The Veteran also gave rhyming responses for incorrect responses on the speech recognition testing, which the examiner noted to be unusual for incorrect responses.  The examiner further noted that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, and inconsistent word recognition scores that make combined use of puretone average and word recognition scores inappropriate.

Upon careful review of the evidence of record, the Board finds the preponderance of the evidence is against granting a disability rating in excess of 50 percent for bilateral hearing loss.  The Veteran has undergone numerous audiological examinations.  The results of the Veteran's September 2014 examination entitle him to a 50 percent rating, but there is no valid hearing acuity test demonstrating that a higher rating is warranted.  Thus, the Veteran's currently awarded 50 percent rating represents the most favorable outcome possible to the Veteran's claim, and there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the 50 percent evaluation assigned during the appeals period.  The assignment of staged ratings is not warranted.  See Fenderson, supra.

As the preponderance of the evidence is against an increased schedular rating, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107(b); see Gilbert, supra.  

TDIU

Total disability ratings for compensation based on individual unemployability may be assigned where 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 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).  Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities.  38 C.F.R. § 4.16(b).

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).  Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In order for a Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other Veterans who meet the basic schedular criteria.  The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment.  See Van Hoose, 4 Vet. App. at 361.

The Veteran is service connected for bilateral hearing loss, evaluated as 50 percent disabling; and tinnitus, evaluated as 10 percent disabling.  

The Board notes that the Veteran's bilateral hearing loss and tinnitus are considered one disability, as they are of a common etiology (in-service acoustic trauma) and affect a single body system (audiological/neurological).  See 38 C.F.R. § 4.16(a)(2) and (3).  As the schedular evaluations for these disabilities combine to 60 percent, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16(a), are satisfied.

However, the evidence must still show that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities in order to be entitled to a TDIU.

The Veteran contends his service-connected disabilities render him unemployable.  On review of the record, the Board finds that such is reasonably shown.  

In the Veteran's statement in support of claim for TDIU, he reported that he retired from his position as church pastor due to his inability to hear people within the chapel.  He also stated that he could not hear what others were saying to him when he was on the pulpit.  

During his September 2014 examination, the Veteran reported that he did not understand people's voices or words, nor could he understand when using the telephone.  He further reported that he was unable to hear at all without his hearing aids.  

At the time of his September 2015 examination, the Veteran reported that he had trouble understanding voices when people speak to him.  He further reported that the ringing in his ears made him nervous and gave him anxiety.  

The Veteran testified during a videoconference hearing in September 2017.  He testified that he was unable to understand what people are saying, as their words were often distorted by his hearing loss.  He further testified that he had to retire due to his inability to hear what people were saying to him.  

The Veteran's wife testified that the Veteran is unable to hear her, even when in close proximity.  His daughter added that she has to be very close to the Veteran so that he can read her lips.  She further testified that the Veteran was able to make out what someone is saying if they are in front of him and he can see their lips.  Otherwise, he does not hear when someone is speaking.  He may pick up a few words, but cannot understand full conversations.

Given the foregoing body of evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities.  The evidence shows that the Veteran has a significant hearing loss disability, which makes it difficult for him to understand and communicate with others.  The Veteran, his spouse, and his daughter have competently and credibly testified as to how this affects his ability to work and communicate with others.

The Board also notes the limitations of his educational and vocational background.  The Veteran has testified that he only has an eighth grade education.  There is no evidence of any type of special training beyond attending welding school upon separation from the military.  The Veteran's work history of record has consisted of employment as a pastor of a small church.  

Considering the foregoing, the Board will resolve reasonable doubt in the Veteran's favor, and find that the criteria for TDIU are met.  Accordingly, the claim is granted.  

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ORDER

Entitlement to an evaluation in excess of 50 percent for bilateral hearing loss is denied.

Entitlement to TDIU is granted.



____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs