Citation Nr: 1801125	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-23 206	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent disabling from May 20, 2009, for bilateral hearing loss. 

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


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

G. Morales, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from March 1946 to April 1947.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in November 2017. A transcript is of record.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. The evidence does not show an initial rating in excess of 10 percent from May 20, 2009 onward; the evidence shows hearing loss of Level I in the right ear and Level XI in the left ear, with an exceptional pattern of hearing loss in the left ear. 

2. The Veteran's service-connected disabilities have not been shown to render him unemployable, and a referral to the Director, Compensation Service for consideration of an extraschedular TDIU is not warranted. 

CONCLUSIONS OF LAW

1. Throughout the rating period on appeal, the criteria for an initial rating in excess of 10 percent have not been met. U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86 Diagnostic Code (DC) 6100 (2017). 

2. The criteria for referral to the Director, Compensation Service for an extraschedular claim of entitlement to a TDIU have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10 (2017). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but it is not required to provide assistance to a claimant if there is not a reasonable possibility that assistance would aid in substantiating the claim. VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). 

The Veteran has not alleged any deficiencies in VA's duties to notify and assist. It will not be discussed further. As such, the Board will proceed with consideration of the Veteran's appeal. 

The Veteran contends that his hearing loss is worse than the rating assigned by the RO. He specifically reports problems understanding people during conversations and believes that he lost his previous employment because of difficulty in hearing. He asserts that his service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. 

Bilateral Hearing Loss Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where entitlement to a compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 

Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of puretone audiometry tests. See 38 C.F.R. §§ 4.85-4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a puretone audiometry test. 38 C.F.R. §4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average puretone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average puretone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. §§ 4.85, 4.86. 

The Board first notes that the Veteran does have an exceptional pattern of hearing impairment, meaning four of the specified frequencies have a puretone threshold of 55 or greater in his left ear. See 38 C.F.R. § 4.86. In such cases, the rating specialist may use either Table VI or Table VIA, whichever results in a higher rating. See id.

The Board has reviewed the evidence, and finds that the Veteran's bilateral hearing loss disability does not warrant an initial rating in excess of 10 percent. 

The August 25, 2009 VA examination measured the level of hearing loss disability. The right ear was recorded with a puretone threshold average of 48.75 decibels (rounds up to 49) and 100 percent speech discrimination score, and the left ear was recorded with a puretone threshold average of 105 decibels and zero percent speech discrimination score. 8/25/2009, VA Examination, at p. 2. In Table VI, the right ear 49 decibel average and 100 percent speech recognition combine for a I. 38 C.F.R. § 4.85, Table VII. The left ear 105 decibel average and zero percent speech recognition combine for a XI. Id., Table VI. Roman numerals I and XI combine for a 10 percent disability rating. Id. As the Veteran has an exceptional pattern of hearing loss in the left ear conforming to 38 C.F.R. § 4.86(a), on Table VIA, the left ear 105 decibel average receives a XI designation.  Roman numerals I and XI combine for a 10 percent rating. Id.

The October 25, 2011 VA examination also measured the level of hearing loss disability. The right ear was recorded with a puretone threshold average of 47.5 decibels (rounds up to 48) and 96 percent speech discrimination score (Roman Numeral I), and the left ear was recorded with a puretone threshold average of 105 decibels and could not test speech discrimination (Roman Numeral XI). 10/25/2011, VA Examination, at p. 2. Roman numerals I and XI combine for a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. As the Veteran has an exceptional pattern of hearing loss in the left ear under 38 C.F.R. § 4.86(a), on Table VIA, the left ear 105 decibel average receives a XI designation. Id. Roman numerals I and XI also combine for a 10 percent rating. Id. 

On July 17, 2013, the Veteran underwent a VA examination, which measured the level of hearing loss disability. The right ear was recorded with a puretone threshold average of 52 decibels and 96 percent speech discrimination score (Roman Numeral I), and the left ear was recorded with a puretone threshold average of 105 decibels and zero percent speech discrimination (Roman Numeral XI). 7/17/2013, VA Examination, at p. 4, 5. Roman numerals I and XI combine for a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. As the Veteran has an exceptional pattern of hearing loss in the left ear under 38 C.F.R. § 4.86(a), on Table VIA, the left ear 105 decibel average also receives a XI designation. Id. Roman numerals I and XI combine for a 10 percent rating. Id. 

The November 13, 2015 VA examination also measured the level of hearing loss disability. The right ear was recorded with a puretone threshold average of 46 decibels and 94 percent speech discrimination score (Roman Numeral I), and the left ear was recorded with a puretone threshold average of 105 decibels and zero percent speech discrimination (Roman Numeral XI). 11/13/2015, C&P Exam, at p. 1, 2. Roman numerals I and XI combine for a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII.  As the Veteran has an exceptional pattern of hearing loss in the left ear under 38 C.F.R. § 4.86(a), on Table VIA, the left ear 105 decibel average also receives a XI designation. Id. Roman numerals I and XI combine for a 10 percent rating. Id.

Lastly, the Veteran underwent a VA examination on May 31, 2017, wherein the right ear had a 50 decibel average and 94 percent speech discrimination score, which receives a designation of I, and the left ear recorded 105 decibel average and zero percent speech discrimination score, which receives a XI designation for a combined 10 percent rating. 5/31/2017, C&P Exam, at p. 1, 2. As the Veteran has an exceptional pattern of hearing loss in the left ear under 38 C.F.R. § 4.86(a), on Table VIA, the left ear 105 decibel average also receives a XI designation and Roman numerals I and XI combine for a 10 percent rating. 38 C.F.R. § 4.85, Table VII.

The Board has also considered the Veteran's statements that he has difficulty hearing people in conversations and has trouble hearing when the television is on. 11/03/2017, Hearing Transcript, at p. 9. He is competent to report these symptoms, and the Board also finds him credible as the statements on these points are consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the lay subjective reports of a more severe degree of disability because they directly address the rating criteria for the Veteran's hearing loss. The rating schedule has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319 (Vet. App. Mar. 17, 2017).

The evidence shows generally the same symptoms throughout the period on appeal such that staged ratings are not appropriate. See Fenderson, 12 Vet. App. 126-27.  

Accordingly, this claim must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine, but the preponderance of the evidence is against a rating in excess of 10 percent disabling. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

TDIU

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).

In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

The Veteran's service-connected disabilities are bilateral hearing loss, rated as 10 percent disabling, and tinnitus, rated as 10 percent disabling. He does not meet the criteria for consideration for entitlement to a TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. Therefore, a TDIU rating is not assignable under 38 C.F.R. § 4.16(a). 

Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). 

In this case, the Veteran asserts that his service-connected bilateral hearing loss and tinnitus disabilities prevent him from working. He has remained unemployed since his last position as a real estate salesman ended in 2007. See 11/03/2017, Hearing Related - Employment K Termination. 

The Veteran's VA examinations indicated that his hearing loss impacted ordinary conditions of daily life, which included his ability to work. 8/25/2009, VA Examination, at p. 3; 10/25/2011, VA Examination, at p. 4; 5/31/2017, C&P Exam, at p. 4; 11/13/2015, C&P Exam, at p. 3; 7/17/2013, VA examination, at p. 7, 8 ("has trouble understanding his wife and son sometimes").

At the Veteran's hearing, he testified regarding the impact that his bilateral hearing loss and tinnitus has had on his daily life, including his ability to work. He indicated that he believed that it was possible he was terminated from his last job, as a real estate salesman, because of his inability to hear coworkers and managers while he was speaking to others on the phone. 11/3/2017, Hearing Transcript, at p. 5. ("[T]hey couldn't talk with me when I was on the phone.").  However, he specified that he did not believe that he was unemployable as he has had post-graduate education. Id. at 8. He also noted that he has pretty good hearing in his right ear, with the use of hearing aid, and the combination of hearing aids allows him to "get along that way." Id. at p. 1. 

In consideration of this evidence, the Board finds that the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. The Board notes that the Veteran was asked several times to supplement the record with a formal application for a TDIU, which would have provided more information as to his education, training, and employment history, but he did not respond to those requests. The Veteran has submitted additional information to the RO, most recently in August 2017, wherein he partly described his tinnitus and addressed his left ear hearing difficulties and the potential influence it has had on employment. However, he has not specified how his service-connected disabilities render him unable to secure or follow substantially gainful employment. 8/28/2017, Correspondence, at p. 1. Furthermore, the Veteran indicated that with the use of his hearings aids, he has "pretty good hearing." He has testified that when there are numerous sources of sound, i.e., his wife is speaking to him and the TV is on, then he can have a hard time with his hearing. However, to the extent that his hearing loss and tinnitus may affect his employment, the assigned schedular ratings for those disabilities compensate the Veteran for such impairment. Thus, referral for extraschedular consideration is not appropriate and a TDIU rating is not warranted. 38 C.F.R. § 4.16(b). 

Accordingly, this claim must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine, but the preponderance of the evidence is against unemployability. Under these circumstances, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

ORDER

Entitlement to an initial rating in excess of 10 percent disabling for bilateral hearing loss is denied. 

Entitlement to a TDIU is denied. 



____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs