Citation Nr: 1800404	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  17-17 791	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an initial compensable evaluation for bilateral hearing loss.  

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


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J. Gallagher, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1976 to August 1994.

This appeal is before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center in Washington, DC.  Jurisdiction has since been returned to the Regional Office (RO) in Detroit, Michigan.

In May 2017, the Veteran testified during a Board hearing in Detroit, Michigan, before the undersigned Veterans Law Judge (VLJ).  A transcript is included in the claims file.  Both the VLJ and the Veteran's representative conducted the hearing under the impression that the issue under appeal was entitlement to service connection for bilateral hearing loss.  They believed that service connection had been denied because the Veteran had not established audiometry results which meet the definition of a disability under 38 C.F.R. § 3.385.  Thus, the VLJ explained to the Veteran that he needed to provide audiometric results showing a more severe disability.  The Board finds that, in essence, the same evidence is required to maintain a claim for increased rating, and therefore this error caused no prejudice to the Veteran.  See 38 C.F.R. § 3.103(c)(2).

The Veteran also has appealed the issues of entitlement to increased ratings for pes planus, posttraumatic stress disorder (PTSD), and degenerative disc disease of the lumbar spine.  Because the Veteran testified as to these issues at two separate hearings before two separate VLJs, they are decided by a panel of VLJs in a separate decision.  See 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707.

In September 2012, the Board remanded the Veteran's appeal regarding his hearing loss with instruction to issue a statement of the case.  The Board again remanded the issue in April 2016 with instruction to comply with prior remand.  A statement of the case was issued in December 2016, and the Veteran perfected the appeal in February 2017.  The Board is therefore satisfied that the instructions in its remands of September 2012 and December 2016 have been satisfactorily complied with.  See Stegall v. West, 11 Vet. App. 268 (1998).

During his hearing the Veteran raised the issue of entitlement to a TDIU in part as a result of the increased rating claim on appeal.   As such, the determination as to whether he is entitled to a TDIU is part and parcel of the determination of the increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  The Board therefore has jurisdiction over this intertwined matter.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran manifested, at worst, Level II hearing in his right ear and Level II hearing in his left ear.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Hearing Loss

The Veteran claims an initial compensable rating for bilateral hearing loss.

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Neither the Veteran nor his representative 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 duty to assist argument).  There is thus no prejudice to the Veteran in deciding this appeal.

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85.  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.

Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 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.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral. 

The Veteran underwent a VA examination in December 2007.  Audiometry results revealed pure tone thresholds as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
0
5
0
20
6
LEFT
5
10
5
30
13

Speech recognition scores were 92 percent in the right ear and 96 percent in the left ear.  The examiner found hearing essentially within normal limits bilaterally.  

In a December 2008 statement, the Veteran's mother reported that he has trouble hearing her and she has to repeat herself.

VA treatment records reflect that at a December 2008 audiology consultation, the Veteran reported difficulty understanding speech in noisy backgrounds.  Specific pure tone thresholds were not reported in the record, but the audiologist noted that all were within normal limits except for the 4000 hertz thresholds, which demonstrated mild sensorineural hearing loss in the left ear and borderline normal in the right ear.  Speech recognition scores were 88 percent in the left ear and 96 percent in the right ear.  His audiologist found that his complaints of hearing difficulties were surprising given the thresholds, and stated that it was possible that the difficulties reflected more of an attentional deficit related to tinnitus or mental health issues.

In a January 2009 statement, the Veteran reported an inability to hear voices when background noise is present.  He stated the same in his April 2009 substantive appeal, and he reported the use of hearing aids.

The Veteran underwent another VA examination in February 2011.  He reported worsening hearing in his daily life, including difficulty understanding speech when background noise is present.  Pure tone thresholds were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
0
0
0
20
5
LEFT
5
5
5
30
11.25

Speech recognition scores were 96 percent in the right ear and 92 percent in the left ear.  He was diagnosed with normal to mild sensorineural hearing loss in the left ear.

In a May 2012 statement, the Veteran disagreed with his noncompensable rating, stating that his hearing continued to degrade.  He reported more pronounced problems hearing voices in conversation when ambient noises are present.  He stated that he can hear noise but clarity is the problem.

VA treatment records include an August 2012 audiology consultation, at which the Veteran reported difficulty understanding speech in noisy backgrounds.  Specific pure tone thresholds were not reported in the record, but the audiologist noted that all were within normal limits except for the 4000 hertz thresholds, which demonstrated mild hearing loss notch in the left ear and borderline normal notch in the right ear.  Speech recognition scores were 92 percent in the left ear and 88 percent in the right ear.  The audiologist noted that hearing levels remained stable as compared to his previous December 2008 audiometric testing.

In an October 2013 statement, the Veteran reported that his hearing testing consistently verifies that his ability to hear the speech range is impaired.  He stated that he uses hearing aids.

In an October 2016 statement, the Veteran reported that his hearing examinations show a dip in the voice range.  He stated that his hearing aids are not as functional as he would like.

The Board finds that an initial compensable evaluation is not warranted for the Veteran's bilateral hearing loss.  Taking his most severe speech recognition scores of 88 percent in each ear, any average decibel threshold of 57 or less results in Level II hearing loss on Table VI.  The Veteran's average decibel thresholds are no higher than 13.  Under Table VII, no compensable evaluations are available without hearing loss measured at Level IV or higher in at least one ear.  Moreover, there is no indication of audiological findings which would qualify as an exceptional pattern of hearing, as the Veteran at no point had thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a threshold of 70 decibels or more at 2,000 hertz.  While exact thresholds have not been provided relating to his December 2008 and August 2012 VA audiological consultations, the descriptions of the thresholds provided by the audiologists are more than adequate for the Board to determine that the Veteran's measured hearing loss does not approach compensable levels.  Furthermore, although the Board recognizes that it has been years since the Veteran's most recent examination, the evidence does not indicate that his disability has worsened since that time.  He reported that his hearing worsened in May 2012, but his August 2012 audiology consultation found that his levels were stable compared to December 2008.  Absent a showing of a worsening disability, the Board finds that remand for a current examination is not necessary.


ORDER

An initial compensable evaluation for bilateral hearing loss is denied.


REMAND

The Veteran seeks TDIU.  He contends that his service-connected disabilities, when considered in combination, render him unemployable.

For the entirety of the appeal period, the Veteran is in receipt of a combined evaluation above 70 percent with a single disability evaluated above 40 percent.  He therefore is eligible for schedular TDIU under 38 C.F.R. § 4.16(a) if found to be unemployable.  

Because the first record evidence that the Veteran raised the issue of TDIU is at his May 2017 hearing, the Board finds that additional development is necessary before the Board may decide his claim.  A September 2016 letter from his treating VA psychiatrist indicates that his PTSD has prevented him from working.  While this is highly probative evidence to show unemployability, additional information is required.  Specifically, it is unclear when in 2007 the Veteran ceased working, and his VA treatment records show that he was offered a job in Florida in September 2007.  He reported that he was unsure if he would take it because he was concerned about caring for his mother.  Furthermore, there is indication that the Veteran was a full-time student for a period in the subsequent years.  He also stated that he was able to work behind the bar at his motorcycle club, though it is not clear that such work constitutes full-time employment.  

Remand is therefore necessary to conduct the necessary development to determine the Veteran's precise employability situation throughout the appeal period.  The Board cannot make a determination of what substantially gainful occupation is available to the Veteran without information on his employment history and education, either from a completed VA Form 21-8940 or from another source.  See 38 C.F.R. § 4.16; VBA Fast Letter 13-13 (2013).

Accordingly, the case is REMANDED for the following action:

1.  Provide appropriate notice for a claim of entitlement to a TDIU to the Veteran and his representative with the appropriate claims forms, and inform the Veteran that such forms must be completed and returned in order to decide his claim for TDIU.  Conduct any additional development deemed necessary to determine the impact of the service-connected disabilities on the Veteran's employability.

2.  After completing the above, and any other development deemed necessary, adjudicate the appeal.  If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs