Citation Nr: 1804601	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.   17-00 308	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to a rating in excess of 40 percent prior to February 26, 2015 and a rating in excess of 50 percent on or after February 26, 2015 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:	Allan T. Fenley, Esq.


ATTORNEY FOR THE BOARD

S. Baxter, Associate Counsel



INTRODUCTION


The Veteran served on active duty October 1963 to October 1965. 

This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  In the July 2015 rating decision granted the evaluation of bilateral hearing loss, which was currently 40 percent to 50 percent disabling effective February 26, 2015.  In September 2015, the RO denied the claim of entitlement to individual unemployability.   

The July 2015 rating decision granted a 50 percent rating for bilateral hearing loss, effective February 26, 2015, the date of a claim for TDIU was submitted.  A 40 percent rating for bilateral hearing loss was in effect prior to February 26, 2015.   The Veteran essentially disagreed with these staged ratings, and argued that the 50 percent rating should be effective one year prior to the February 2015 date.  In other words, the Veteran is seeking an increased rating regarding the staged rating evaluation.  Accordingly, the Board has recharacterized the appeal as a claim for increased rating, rather than an earlier effective date for a 50 percent rating.

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) (West 2).

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).


FINDINGS OF FACT

1.  It is not factually ascertainable that the Veteran's increase of his bilateral hearing loss manifested within one year prior to receipt of his February 26, 2015 claim.

2.  The Veteran had a hearing loss in the right ear with a Numeric Designation of XI and hearing loss in the left ear with a Numeric Designation of VI. 


CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent prior to February 26, 2015 and a rating in excess of 50 percent on or after February 26, 2015 for bilateral hearing loss have not been met.  38 U.S.C. § 1155(2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, 4.86 Diagnostic Code (DC) 6100, Tables VI, VIa, VII, 4.86 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Duties to Notify and Assist

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in August 2005 and December 2009 letters.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017).  

Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports.

The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination obtained in this case is adequate.  The examination report is based on a substantial review of the record, medical findings, and considered the Veteran's complaints, symptoms, and history.  As the examination report ultimately provide sufficient information such that the Board can render an informed determination, the examination report is adequate.  Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues addressed in this decision has been met.  38 C.F.R. § 3.159 (c)(4).

VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time.

II.  Increased Rating for Bilateral Hearing Loss

The relevant law and regulations provide that the effective date of an award of increased compensation "shall not be earlier than the date of receipt of the application thereof."  38 U.S.C. § 5110 (a).  The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400 (o)(1). 

An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim.  If the increase occurred after the date of receipt of the claim, the effective date is the date of increase.  38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400  (o)(1)(2); VAOPGCPREC 12-98 (1998).

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).  Separate rating codes identify the various disabilities.  38 C.F.R. Part 4.  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.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The VA schedule of ratings will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  38 C.F.R. Section 3.321 (b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria.  According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards."  Id. 

An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 

Evaluations of hearing impairment range from zero to 100 percent based on organic impairment of hearing acuity.  Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness.  Tables V, VIa and VII are used to calculate the rating to be assigned.  38 C.F.R. § 4.85.  Under 38 C.F.R. § 4.86 , when the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86 (a).  Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86 (b).

The Veteran contends that his hearing loss should be rated higher than 50 percent.  On his December 2016 Form 9, he indicated VA failed to consider evidence the bilateral hearing loss increased in severity in the one year prior to February 26, 2015. 

Prior to February 26, 2015

The Veteran submitted a VA form 21-8940, Application for Increased Compensation Based on Unemployability in February 2015 and indicated that hearing loss was the reason he had not worked since 2000.  On the basis of this claim, a VA examination was scheduled regarding hearing loss which was conducted in May 2015.  

A review of the record does not show any complaints, symptoms, or treatment for bilateral hearing loss from February 2014 to February 2015.  An evaluation of hearing impairment is measured through controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85.  The evidence of record does not document any audiological evaluation with any Maryland CNC speech discrimination and a pure tone audiometry test during this time period.  Therefore, the Board finds that it is not factually ascertainable that the Veteran developed an increased in severity one year prior to February 26, 2015.  Therefore, the Board finds that a rating in excess of 40 percent is not warranted prior to February 26, 2015.  

February 26, 2015 and thereafter  

On the authorized audiological evaluation in May 2015, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
90
95
105+
105+
105+
LEFT
40
62
75
75
80

Speech audiometry revealed speech recognition ability of 8 percent in the right ear and of 92 percent in the left ear.  The average decibel loss was 102.5 in the right ear.  The average decibel loss was 71.25 in the left ear.  The Veteran reported that he had to stop working because of his hearing loss.  The Veteran indicated that he was not able to participate in a group conversation because it was hard for him to follow what people were saying.  He indicated that he was only able to follow conversation only if he was face to face. 

Per 38 C.F.R. § 4.86(a), the Veteran's pattern of hearing impairment qualifies as exceptional because the pure tone thresholds at the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) is 55 dB or more in his right and left ear.  Applying the provisions of 38 C.F.R. § 4.86(a), Table VI or Table VIa may be applied to the right ear and left ear, which ever results in the higher numeral in the favor of the Veteran.  Applying table VI per 38 C.F.R. § 4.86(a), results in a numeric designation of level XI in the right ear and a numeric designation of level II in the left ear.  Applying table VIa per 38 C.F.R. § 4.86(a) results in a numeric designation of level XI in the right ear and numeric designation of level VI in the left ear.  As table Via results in the higher numerals.  Therefore, when the audiometrics are considered under table VII, a 50 percent evaluation is shown.  

In June 2015, the Veteran's wife wrote that it was very difficult to communicate with the Veteran in a normal tone.  She reported that his hearing was worse.  She reported that people had to repeat themselves when talking to the Veteran.  She also wrote that the Veteran had to look at the person to understand them.  She indicated that the Veteran used a hearing aid however; the TV must be still at a high volume for him to hear.

The Board has considered all of the evidence, lay and medical, during the relevant period.  The Board finds, that the evidence overall supports the assignment of a 50 percent rating.  The Board finds that a 50 percent evaluation and not more is warranted from February 26, 2015 and thereafter.  Fenderson, supra.  Thus, entitlement to an evaluation in excess of 50 percent from February 25, 2015, is denied.  Id.  


	(CONTINUED ON NEXT PAGE)



ORDER

Entitlement to a rating in excess of 50 percent for bilateral hearing loss prior to February 26, 2015 is denied.  

Entitlement to a rating in excess of 50 percent for bilateral hearing loss from February 26, 2015 is denied.

REMAND

The Veteran seeks entitlement to a total disability rating based upon individual unemployability (TDIU).  The Board finds that further development is needed prior to the adjudication of the Veteran's claim of entitlement a TDIU.

VA regulations provide for a TDIU rating when the schedular rating is less than total, where 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, 4.16(a) (2017).

Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16 (a), may receive extraschedular consideration.  See 38 C.F.R. § 4.16 (b).  Specifically, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a).  Id.  The rating board will include a full statement as the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue.  Id.  

In this case, the Veteran's service-connected disabilities include bilateral hearing loss rated as 50 percent disabling and tinnitus associated with bilateral hearing loss rated as 10 percent disabling.  The Veteran has a total combined rating of 60 percent therefore he does not meet the criteria under 38 C.F.R. § 4.16 (a).

On February 2015 VA form 21-8940; the Veteran indicated that his hearing loss caused him from securing or following any gainful occupation.  The Veteran indicated that he last worked in 2000.  The Veteran's prior occupation included working in hotel management, food distribution, and as a town supervisor. 

In December 2016, the VA examiner indicated that people who are deaf or hard of hearing could perform the majority of jobs available.  She noted that there were a few exceptions with people who are deaf or hard of hearing.  The examiner indicated that if given the appropriate training and accommodations he would have the same range of job options as any other person.  She noted that with this degree and configuration of hearing loss the Veteran is expected to have difficulty with communication but that should not prevent him from employment.    

In December 2016, the Veteran submitted a letter from a private vocational expert KM.  KM indicated that in her professional opinion it was more likely than not that the Veteran was completely disabled from the workforce due to his service connecting disabilities beginning in February 2000.  The combination of his symptoms and limitations resulted in an inability to attend to basic work functions and resulted in him being unable to maintain substantial gainful employment, even at the sedentary level.  

Although the Veteran does not currently meet the percentage threshold requirements for TDIU, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations.  38 C.F.R. § 4.16 (b).  However, the Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b).  Bowling v. Principi, 15 Vet. App. 1 (2001).  Accordingly, if the Veteran does not meet the threshold criteria for TDIU, and there is evidence of unemployability due solely to service-connected disability, then the case should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration of a TDIU.


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Refer the Veteran's TDIU claim to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis.  

2.  Upon response, the RO must undertake any adjudicative actions necessary.  Readjudicate the Veteran's TDIU claim.  If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond.  Thereafter, return the matter to the Board for further adjudication, if otherwise in order.


The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014).



______________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs