Citation Nr: 1804124 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-17 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitling to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from May 1970 to September 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma that granted service connection for bilateral hearing loss, rated 0 percent, effective October 29, 2010, the date of the claim. The Veteran has disagreed with the initial rating assigned for his service-connected bilateral hearing loss, but not the effective date. In December 2015, a videoconference hearing was held before the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. During the course of his appeal for an initial compensable rating for his bilateral hearing loss, the Veteran indicated that he retired in part due to his inability to hear. This evidence reasonably raised the issue of TDIU. Moreover, the Board notes that in January 2016, the Veteran expressly filed a claim for TDIU, indicating that he was unable to secure or follow any substantially gainful occupation as a result of all of his service-connected disabilities. Accordingly, the Board finds that the issue of entitlement to TDIU is properly before the Board. In February 2016, the Board remanded the claims for further development. More specifically, the Board remanded the claims to collect additional treatment records, to afford a new audiological examination, and to allow the RO an opportunity to adjudicate the TDIU issue. That development having been completed, the Board may now render a determination as to both issues. FINDINGS OF FACT 1. The Veteran's hearing loss has been manifested by, at worst, Level IV hearing loss in the right ear and Level III hearing loss in the left ear. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met during the pendency of this claim. 38 U.S.C. §§ 1155, 3.321, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.85, Diagnostic Code 6100 (2017). 2. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103 (a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). The Veteran's service treatment records and post-service VA and private treatment records have been obtained and, most recently, an adequate VA audiological examination was afforded to the Veteran. Overall, there is no evidence of any VA error in notifying or assisting the Veteran. II. Legal Criteria Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Codes 6100 (2017). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86 (a). Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). III. Analysis Bilateral Hearing Loss The Veteran claims entitlement to an initial compensable rating for his service-connected hearing loss. For the following reasons, the Board finds that the criteria for a compensable rating are not satisfied. The Veteran was seen by a private audiologist in November 2011. The treatment report, dated in December 2011 showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 45 60 70 70 61 LEFT 50 55 70 70 61 Speech recognition scores based on the Maryland CNC Test were 72 percent in the right ear and 60 percent in the left ear. The Board notes that the November 2011 examination did not include a performance intensity test which is required when speech discrimination scores are 92 percent or less. Because a performance intensity test was not performed, the test results could not be used in assigning an evaluation for compensation purposes. The Veteran was afforded a VA examination in January 2011. He exhibited puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 45 60 75 75 64 LEFT 45 55 56 70 69 Speech recognition scores based on the Maryland CNC Test were 88 percent in the right ear and 88 percent in the left ear. Applying the findings from the January 2011 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III hearing loss in the right ear and Level III hearing loss in the left ear. Accordingly, a 0 percent rating was assigned under Table VII. 38 C.F.R. § 4.85. The Veteran was afforded a VA examination in September 2012. He exhibited puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 35 55 75 80 61 LEFT 40 55 70 80 61 Speech recognition scores based on the Maryland CNC Test were 96 percent in the right ear and 94 in the left ear. Applying the findings from the September 2012 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level II hearing loss in the left ear. Accordingly, a 0 percent rating was assigned under Table VII. 38 C.F.R. § 4.85. Pursuant to the Board's February 2016 remand directives, the Veteran was afforded a VA examination in March 2016. He exhibited puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 25 50 70 65 52.5 LEFT 30 55 65 70 55 Speech recognition scores based on the Maryland CNC Test were 80 percent in the right ear and 84 in the left ear. The audiologist noted the Veteran's reports of employment impairments as trouble hearing conversations in crowded rooms. Applying the findings from the March 2016 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IV hearing loss in the right ear and Level II hearing loss in the left ear. Accordingly, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The Board has reviewed the probative evidence of record and finds that the Veteran's hearing disability has not been shown to be manifested by an exceptional pattern of hearing impairment; or to otherwise meet the criteria for a compensable rating at any time during the appeal period. Fenderson, supra. The Board has reviewed and considered the Veteran's statements regarding functional loss due to hearing impairment, including asking people to repeat themselves, difficulty hearing in a noisy environment, having to turn the television on loudly, and difficulty hearing instructions to follow along and participate in meetings. While these statements do paint a picture of the difficulty caused by the hearing impairment, these statements and medical evidence do not establish that a compensable rating is warranted for any part of the appeal period because a schedular rating is determined from the application of mechanical audiometric testing and speech recognition scores. Importantly, the percentage bilaterally of speech recognition reflects high speech discrimination ability throughout the rating period on appeal. In this case, the examination records reflect no more than Level IV auditory acuity for the right ear and Level III auditory acuity for the left ear at any point after service connection was established. Such findings do not support assignment of a compensable evaluation. Instead, the Veteran's audiometric findings fall squarely within the criteria for a noncompensable evaluation under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. The functional impairment caused by the hearing loss described by the Veteran is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by his current evaluation. For these reasons, an increased rating is not warranted. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16 (b). 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16 (a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. The Veteran reasonably raised the issue of a TDIU at the December 2015 hearing, and he filed a claim for a TDIU in January 2016, asserting he was unable to work as a result of his service-connected disabilities. The Board notes at the outset that he meets the criteria for a schedular TDIU, as he is currently service-connected for coronary artery disease, rated as 60 percent disabling; chondromalaia patella of the left knee, rated as 10 percent disabling; chondromalacia patella of right knee, rated as 10 percent disabling; complete separation of the right acromioclavicular joint, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; right shoulder arthritis, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. In the January 2016 application for TDIU, the Veteran indicated that he had not worked since September 2014, at which time he worked as a systems analyst. He also reported completing high school and denied additional education or training. Following a careful review of the record, the Board finds that the preponderance of the evidence is against finding that the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. At the hearing, the Veteran testified that he could not perform at his job, encouraging him to retire a year and a half early. More specifically, the Veteran reported that work was frustrating and inconvenient because co-workers would ask him to turn his radio down and it was difficult going to meetings. The examiners of record suggested that the Veteran could work in an environment free from the requirements of exertion, walking, squatting, and lifting. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record does not persuasively support a finding that the Veteran, without regard to advancing age and nonservice-connected disabilities, is not capable of performing the mental actions required by employment, particularly noting his former role as a systems analyst. The hearing loss and tinnitus examination conducted in March 2016 noted the Veteran's report of employment impairments as trouble hearing conversations in crowded rooms (hearing loss) and the ringing of the ears impacts low level conversation and sleeping at night (tinnitus). The cardiac disorders Disability Benefits Questionnaire (DBQ) completed in March 2016 noted the impact of the service-connected heart conditions on the Veteran's ability to work was limited exertion. The DBQ for the right shoulder noted occupational impairments of limited lifting and limited overhead activity. The DBQ for the knees noted the occupational impairment as limited squatting and walking. Again, the central inquiry is whether the Veteran's service-connected disabilities are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). While the evidence clearly shows that the Veteran's service-connected disabilities have an impact on physical employment and those that would require the Veteran to be able to hear in crowded, noisy environments, the evidence also suggests that he would be able to maintain sedentary employment in quiet listening environments. Additionally, the evidence does not show that the Veteran could not obtain or maintain substantially gainful activity in such environments. Reviewing the record as a whole, the Board finds that the conclusions of the recent VA examiners are substantially supported by both past and present medical findings and conclusions. The medical evidence supports the examiners' conclusions, and the Board finds that the Veteran is not precluded from obtaining or sustaining substantially gainful employment as a result of his service-connected disabilities. The Veteran's stable employment history further supports a finding that the Veteran is capable of gainful employment. The record shows the Veteran had been continuously employed for almost two decades prior to his September 2014 voluntary retirement. Furthermore, the Veteran's statements that work was frustrating and inconvenient does not persuasively indicate that he had to retire due to his service-connected disabilities. Additionally, none of the VA examiners found that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational background. Again, while the lay assertions have been considered, the Board finds the weight of competent and probative evidence to be against them. This is the case even while considering the Veteran's past educational attainment of a high school diploma, and his substantial work experience as a systems analyst. The Board therefore finds the preponderance of the evidence against the TDIU claim. Accordingly, the benefit of the doubt doctrine does not apply, and the claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to TDIU due to service-connected disabilities is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs