Citation Nr: 1805922 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 10-01 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating for service connected chronic obstructivepulmonary disorder (COPD) greater than 10 percent disabling from February 18, 1997 to January 14, 2011. 2. Entitlement to an initial disability rating for service connected chronic obstructivepulmonary disorder (COPD) greater than 60 percent disabling from January 15, 2011 to September 29, 2015. 3. Entitlement to an initial disability rating for service connected chronic obstructivepulmonary disorder (COPD) greater than 30 percent disabling from October 1, 2015 to the present. 4. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss disability. 5. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1979 to September 1981. This matter is before the Board of Veterans Appeals (Board) on appeal from March 2009, and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran submitted a claim for service connection for a respiratory disorder in February 1997. He was granted service connection and awarded a 10 percent disability rating for COPD by way of the March 2009 rating decision. The effective date of the grant of service connection and the 10 percent rating was from the date of the claim, February 18, 1997. The Veteran perfected his appeal of a rating in excess of 10 percent in December 2009. The Veteran's disability rating was increased to 60 percent, effective from January 15, 2011, by way of a rating decision dated in February 2011. The Veteran, through his attorney, disagreed with the effective date assigned for the 60 percent rating and also contended that the COPD disability warranted a rating in excess of 60 percent. The Board notes that the RO issued a statement of the case (SOC) in regard to an earlier effective date in November 2011. The issue of a rating in excess of 60 percent was addressed in a supplemental statement of the case (SSOC) that was also issued in November 2011. The Veteran, through his attorney, perfected an appeal of the earlier effective date issue in December 2011. As the current appeal emanates from the Veteran's disagreement with the initial rating of the 10 percent assigned following the grant of service connection for COPD, the Board has characterized the claim for staged ratings. "[O]n a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." See Fenderson v. West, 12 Vet. App. 119, 126 (1999), quoting AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2012, the Board remanded the matter of higher initial ratings for COPD for additional development. Also, in a January 2014 rating decision, entitlement to a TDIU was denied. In January 2015, a timely notice of disagreement with this decision was received from the Veteran's attorney. While a separate appeal has not yet been perfected, the TDIU issue is part and parcel of the perfected appeal as to the initial ratings assigned for COPD (as the Veteran is seeking a TDIU due to his service-connected COPD disability). Thus, the issue of entitlement to a TDIU is properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that in a May 2014 rating decision the Veteran was provided with notice that his rating for COPD of 60 percent was proposed to be decreased to 30 percent. The Veteran's appeal has been remanded several times for additional development, most recently in March 2015. The remand directives required additional evidence including VA medical records that show PFTs from the VA pulmonary clinic to be associated with the claims file. The remand directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). A September 2016 rating decision granted an earlier effective date pertaining to the increased evaluation of 10 percent for the service-connected bilateral hearing loss disability, from June 24, 2009. This decision represented a complete grant of benefits regarding the earlier effective date. The separate increased rating component of the Veteran's bilateral hearing loss disability claim remains in appellate status. FINDINGS OF FACT 1. The Veteran's COPD was manifested by FVC 5.73 which is 101 percent of predicted; FEV1 of 4.46 which is 96 percent of predicted; FEV1/FVC of 78 percent; and DLCO of 90 percent for the period from February 18, 1997 to January 14, 2011. 2. The Veteran's COPD was manifested by FEV-1 reading of 46 percent of predicted, FEV1/FYC reading of 54 percent of predicted value, and DLCO of 52 percent for the period from January 15, 2011 to September 29, 2015. 3. The Veteran's COPD was manifested by post bronchodilator results of FVC of 75 percent predicted; FEV1 of 73 percent predicted; and FEV1/FVC of 97 percent for the period from October 1, 2015 to the present. 4. Bilateral hearing loss disability is manifested by a right ear speech discrimination of 88 with an average decibel loss of 59, and a left ear speech discrimination of 82 with an average decibel loss of 71. 5. The Veteran retired in 1994 from his job as a teamster. 6. The Veteran's service connected disabilities; COPD, bilateral hearing loss disability, and tinnitus; do not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for COPD for the period from February 18, 1997 to January 14, 2011 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 4.1, 4.3, 4.3, 4.97 Diagnostic Code 6604 (2017). 2. The criteria for an evaluation in excess of 60 percent for COPD from January 15, 2011 to September 29, 2015 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 4.1, 4.3, 4.3, 4.97 Diagnostic Code 6604 (2017). 3. The criteria for an evaluation in excess of 30 percent for COPD from October 1, 2015 to the present have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 4.1, 4.3, 4.3, 4.97 Diagnostic Code 6604 (2017). 4. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 4.1, 4.3, 4.3, 4.85, 4.86 Diagnostic Code 6100 (2017). 5. The criteria for a TDIU are not met as the Veteran is not precluded due to his service connected disability from re-entering the workplace, suffers from a non-service connected back disability, and has the capacity for substantially gainful employment. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Veteran has not 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). II. Rating of COPD and Hearing Loss Disability Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the COPD disability has significantly changed, and a uniform evaluation is not warranted. The bilateral hearing loss has not significantly changed, and a uniform evaluation is warranted. A. COPD 38 C.F.R. §§ 4.96 and 4.97 provide guidance for rating respiratory conditions. The Veteran's COPD is currently rated under 38 C.F.R. § 4.97. The criteria under Diagnostic Code 6604 are based primarily on PFTs. An evaluation of 10 percent is assigned for evidence of forced expiratory volume in one second (FEV-1) of 71 to 80 percent of predicted value; or the ratio of FEV-1 to forced vital capacity (FEV1/FYC) of 71 to 80 percent; or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) 66 to 80 percent predicted. A higher evaluation of 30 percent is not warranted unless there is FEV-1 of 56 to 70 percent predicted; or FEV-1/FYC of 56 to 70 percent; or DLCO (SB) 56 to 65 percent predicted. A higher evaluation of 60 percent is not warranted unless there is FEV-1 of 40 to 55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). An evaluation of 100 percent is granted whenever there is forced expiratory volume in one second (FEV-1) less than 40 percent of predicted value; or the ratio of FEV-1 to forced vital capacity less than 40 percent; or diffusion capacity of the lung for carbon monoxide by the single breath method less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or episode(s) of acute respiratory failure; or the requirement for outpatient oxygen therapy. The Rating Schedule contains special provisions for the application of Diagnostic Code 6604. PFTs are required to evaluate COPD, except when certain circumstances are demonstrated, including when pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy is diagnosed, or when outpatient oxygen therapy is required. 38 C.F.R. § 4.96 (d)(1). When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96 (d)(3). When evaluating based on PFTs, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results should be used for rating purposes. 38 C.F.R. § 4.96 (d)(5). In other words, whichever results are better should be used. When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is utilized. 38 C.F.R. § 4.96 (d)(6). The Veteran's COPD is currently rated at 10 percent disabling from February 18, 1997 to January 14, 2011, 60 percent disabling from January 15, 2011 to September 29, 2015, 30 percent disabling from October 1, 2015. By way of background, VA granted service connection for COPD in a March 23, 2009 rating decision, and assigned a 10 percent evaluation. 1. February 18, 1997 to January 14, 2011, Currently 10 Percent Disabling The original date of claim for the claimed respiratory disorder was February 18, 1997. The rating decision dated July 23, 1997 denied service connection for this condition. The Veteran subsequently disagreed and filed a timely appeal and the appeal has been under consideration since the time of the original claim. The Board remanded the appeal on multiple occasions and directed a series of comprehensive respiratory examinations. Pulmonary function testing in May 2001 notes post bronchodilator results of FVC 5.73 which is 101 percent of predicted; FEV1 of 4.46 which is 96 percent of predicted; FEV1//FVC of 78 percent and DLCO of 90 percent. The results state these values are normal with only a slight increase in residual volume. This is consistent with mild intermittent symptomology of asthma. The physician noted that spirometry and lung volumes were consistent with normal function except for slight increase in residual volume. The Board finds this to be highly probative. VA attempted to obtain 2003 PFT results, but none were found. A November 2004 VA treatment record notes spirometry testing productive of an FVC of 92 percent, FEV1 of 84 percent, and FEV1/FVC of 73 percent. There was no obstruction. A report from the Kansas City VA Medical Center (VAMC) indicates that in 2004 the Veteran was scheduled for pulmonary function tests two times. Both were cancelled by the Veteran. A treatment report from June 2005 note spirometry results showing FVC of 91 percent, FEV1 of 85 percent, and FEV1/FVC of 75 percent. A February 2009 VA examination from the Kansas City VA Medical Center (VAMC) shows results of FVC of 86 percent, FEV1 of 82 percent, and FEV1/FVC of 67 percent. The physician opined that spirometry and lung volumes were consistent with mild obstructive defect with moderate air trapping. There is no record of outpatient oxygen therapy required. Additional VA treatment records are substantially the same. An evaluation of 10 percent is assigned from February 18, 1997, the original date of claim. An evaluation of 10 percent is assigned for evidence of forced expiratory volume in one second (FEV-1) of 71 to 80 percent of predicted value; or the ratio of FEV-1 to forced vital capacity (FEV1/FVC) of 71 to 80 percent; or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) 66 to 80 percent predicted. Here, the Veteran's COPD most closely approximates a ten percent rating based upon his May 2001 PFTs, showing an FVC 5.73, which is 101 percent of predicted; FEV1 of 4.46 which is 96 percent of predicted; FEV1/FVC of 78 percent, and DLCO of 90 percent. Subsequent treatment records indicate that the Veteran cancelled two appointments, and then showed substantially the same ratings in 2004 and 2005 for FEV-1/FVC. The Veteran's later reported symptoms are already contemplated by the 10 percent rating. A higher evaluation of 30 percent is not warranted unless there is FEV-1 of 56 to 70 percent predicted; or FEV-1/FVC of 56 to 70 percent; or DLCO (SB) 56 to 65 percent predicted. Consequently, a rating of 10 percent prior to January 15, 2011 is warranted. 2. January 15, 2011 to September 29, 2015, currently 60 percent disabling The Veteran was afforded another VA examination in January 2011. The VA examiner noted the Veteran used a steroid inhaler. In addition, the Veteran reported dyspnea on mild exertion. A cardiac examination showed no evidence of congestive heart failure, pulmonary hypertension or abnormal heart sounds. A pulmonary examination noted rhonchi and prolonged expiration in both lungs. A diaphragm excursion and chest expansion was also slightly limited. The VA examiner noted no evidence of significant weight loss or malnutrition. Chest x-rays showed normal heart size with mildly hyper-aerated lungs. Pulmonary function testing showed a post-bronchodilator FEV-1 reading of 46 percent of predicted, and an FEV1/FVC reading of 54 percent of predicted value. DLCO was 52 percent of predicted. The Veteran's PFT findings were noted to be consistent with moderately-severe obstructive defect with air trapping and moderately decreased diffusion capacity with no significant improvement with bronchodilator administration. There was no evidence of cor pulmonale, right ventricular hypertrophy, episodes of acute respiratory failure, or need for outpatient oxygen therapy. The VA examiner confirmed the diagnosis of COPD. The Veteran's January 2011 VA examination results show symptoms consistent with a 60 percent evaluation due to post-bronchodilator FEV-1 reading of 46 percent of predicted, FEV1/FYC reading of 54 percent of predicted, and DLCO of 52 percent. The 60 percent evaluation is warranted as of January 15, 2011, the date of the VA examination first showing an increase in severity. There was no evidence of cor polmonale. The Board notes that the Veteran was already in receipt of a 60 percent rating from January 15, 2011 to September 29, 2015 based upon these accepted January 2011 VA examination results. By way of reference, a 60 percent rating is warranted for a FEV in one second (FEV-1) of 40 to 55 percent predicted; or, FEV-1 to FVC (FEV-1/FVC) of 40 to 55 percent; or, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40 to 55 percent predicted; or, maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit. As such, the most probative evidence does not demonstrate entitlement to an evaluation greater than 60 percent for this period. The Veteran's COPD is not productive of a higher 100 percent rating, because his FEV-1 does not fall within the higher range. An evaluation of 100 percent is granted whenever there is forced expiratory volume in one second (FEV-1) less than 40 percent of predicted value; or the ratio of FEV-1 to forced vital capacity less than 40 percent; or diffusion capacity of the lung for carbon monoxide by the single breath method less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or corpulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or episode(s) of acute respiratory failure; or the requirement for outpatient oxygen therapy. There is no competent or probative evidence to the contrary. Consequently, and giving all deference to the Veteran, a rating of 60 percent for the period from January 15, 2011 to September 29, 2015 most closely approximates the severity of the Veteran's COPD. 3. October 1, 2015, Currently 30 Percent Disabling A September 2013 VA examination shows results of FVC of 76 percent, FEV1 of 69 percent and a FEV1/FVC of 67 percent. The physician opined that the FEV-1 test result most accurately reflects the Veteran's disability. The Veteran does not require outpatient oxygen therapy. The Board finds this to be highly probative. Here, a July 2015 rating decision reduced the evaluation of the Veteran's COPD to 30 percent disabling from 60 percent effective October 1, 2015. A previous May 30, 2014 letter notified the Veteran of the proposal to reduce the rating and provided due process rights. The most probative evidence shows the Veteran's COPD has improved in severity and no longer warrants a 30 percent evaluation from October 1, 2015. PFT testing of September 2015 was again not complete as the Veteran was noted to be unable to follow directions and perform the maneuvers according to ATS standards. An August 2016 VA examination shows that the Veteran reported he uses a steroid inhaler, long acting bronchodilator, and short acting bronchodilator. PFT results show post bronchodilator results of FVC of 75 percent predicted; FEV1 of 73 percent predicted and FEV1/FVC of 97 percent. The FEV1 percent predicted is noted as the test result most accurately reflecting the Veteran's limitation in pulmonary function. Additional VA treatment records are substantially the same. An evaluation 30 percent is not warranted for a FEV-1 of 56 to 70 percent predicted; or FE V-1/FVC of 56 to 70 percent; or DLCO (SB) 56 to 65 percent predicted. Here, the September 2013 VA examination results show a 30 percent evaluation for COPD is appropriate based on an FEV-1 of 56 to 70 percent of predicted value, given his 69 percent FEV-1 reading. In addition, the Board notes that the VA examiner has indicated that the FEV-1 most accurately reflects the Veteran's level of disability. An evaluation of 10 percent is assigned for evidence of forced expiratory volume in one second (FEV-1) of 71 to 80 percent of predicted value; or the ratio of FEV-1 to forced vital capacity (FEV1/FYC) of 71 to 80 percent; or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) 66 to 80 percent predicted. The Board notes that the Veteran's August 2016 VA examination results if considered alone would potentially only support a 10 percent evaluation. The Board notes that the RO's proposed reduction was only from 60 to a 30 percent evaluation. The most recent August 2016 results show a FVC of 75 percent predicted; FEV1 of 73 percent predicted and FEV1/FVC of 97 percent. Nevertheless, the Board finds the most probative evidence is the September 2013 VA examination, and will rate the Veteran's COPD accordingly at 30 percent. The Board notes that the RO has generously applied the rating criteria to the present severity of the Veteran's disability, despite the Veteran's disagreement with the reduction. Consequently, a rating of 30 percent from October 1, 2015 is warranted. Implicit in the Veteran's claim is also whether the reduction from 60 percent disabling to 30 percent disabling was warranted. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. 38 C.F.R. § 3.44 (a). Relevant to the instant case, under 38 C.F.R. § 3.344 (c), The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. The Board finds that the rating was in effect less than five years, and the VA examinations were full, complete, and showed improvement in the severity of the Veteran's disability. In other words, the objective evidence in the VA examination showed improvement. Consequently, the Board finds that the reduction to a 30 percent rating was warranted. In sum, the most probative evidence does not show that a higher than 10 percent evaluation is warranted prior to January 15, 2011, nor is a higher than 60 percent evaluation from January 15, 2011 to October 1, 2015 warranted, and higher than 30 percent after October 1, 2015. The reduction was also warranted. In reaching these conclusions, the Board has applied the benefit of the doubt doctrine, and finds that the competent and most probative evidence is against a higher rating for any of the periods on appeal. B. Hearing Loss Disability Under the applicable criteria disability ratings are determined by an application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent to 100 percent based on 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 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See 38 C.F.R. § 4.85. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone 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 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85. Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies of: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86 (a), (b). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran contends that his service-connected bilateral hearing loss disability should be rated at higher than 10 percent. The Veteran was recently afforded a VA examination in July 2014. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follow: HERTZ 1000 2000 3000 4000 RIGHT 35 40 75 85 LEFT 40 55 90 100 An evaluation of 10 percent is assigned because the Veteran's right ear has a speech discrimination of 88with an average decibel loss of 59 and the left ear has a speech discrimination of 82 with an average decibel loss of 71. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The RO subsequently afforded the Veteran another VA audiometric examination in August 2016. However, as discussed in more detail below, the Veteran failed to fully cooperate at the scheduled VA audiometric examination. Upon being afforded an audiometric examination in August 2016, the VA examiner opined that Veteran exaggerated his threshold loss and repeated measurements could not resolve differences so that the results were valid for rating purposes. The Speech Reception Threshold (STR) was significantly lower that the Pure Tone Average (PTA) and this also could not be resolved. The Veteran was demonstrating severe hearing loss but was able to understand questions and have conversation at normal speech level. The VA examiner opined that these findings were not appropriate for rating purposes. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). The most probative evidence is the July 2014 VA audiometric examination indicating that the Veteran's hearing loss most closely approximates a 10 percent rating. In making its decision, the Board has carefully considered the Veteran's contentions. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Consequently, an increased rating is not warranted, and the appeal must be denied. III. TDIU Law and Regulations In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, in circumstances where the scheduler rating is less than total, 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 service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). In a related provision, 38 C.F.R. § 4.16 (b) allows for a Veteran who does not meet the threshold requirements for the assignment of a total rating based on individual unemployability, but who is otherwise deemed by the Director of Compensation & Pension Services to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities, to be rated totally disabled. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The sole fact that a claimant 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, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. In the present case, service connection has been granted for COPD at 10 percent disabling from February 18, 1997 to January 14, 2011, 60 percent disabling from January 15, 2011 to September 29, 2015, and 30 percent disabling from October 1, 2015; with tinnitus at 10 percent from February 18, 1997; and bilateral hearing loss at a noncompensable rating from February 18, 1997 and 10 percent from June 24, 2009. The Veteran's combined ratings are 20 percent from February 18, 1997, 30 percent from June 24, 2009, 70 percent from January 15, 2011, and 40 percent from October 1, 2015. A. History The Veteran's combined ratings do not meet the criteria under 38 C.F.R. § 4.16 (a), except for the period from January 15, 2011 to September 29, 2015, when his COPD was rated at 60 percent disabling. The Board will consider whether the Veteran's service connected disabilities preclude him from securing or following substantially gainful employment. A September 1993 Disability Determination and Transmittal from the Social Security Administration (SSA) shows "You said you are disabled because of your back problems." The Determination shows that the Veteran could adjust to other light work. Subsequent SSA records indicate that the Veteran is in receipt of social security disability benefits for disorders of the back and anxiety related disorders. The Board notes that the Veteran is not service connected for either of these disabilities. An October 1995 private psychiatric opinion from Dr. J. S. M. indicates that the Veteran has worked primarily as a dock worker. He injured himself on the job in 1987. A May 2001 VA treatment record shows that the Veteran has a history of employment in the private sector. He is currently on SSI disability due to back problems. At a February 2009 VA respiratory examination, the Veteran reported that he is in receipt of SSI disability due to his back problem, He worked as a teamster doing heavy dock work, and last worked in 1994. At a February 2011 VA examination, the Veteran reported that he last worked in 1994. He reported that he had retired. The VA examiner opined at a September 2013 respiratory examination that the Veteran would not be able to do more than light physical employment, but he could do sedentary work. At an August 2016 VA audiometric examination, the Veteran reported difficulty understanding speech in background noise. The VA examiner opined that this will not preclude gainful employment. The Veteran reported he stopped working due to a back injury. He denied that his hearing loss had caused him difficulty working. There VA examiner opined that there was nothing related to the Veteran's hearing loss that would preclude gainful employment. The Board finds this to be highly probative. B. Analysis Here, the Board finds that the Veteran's service connected disabilities do not preclude him from securing or following substantially gainful employment. The Veteran's termination of employment was either due to a back disability or was voluntary. Nothing suggests that his service connected disability impacted his employment at that time. In regard to whether service connected disability preventing obtaining and sustaining substantial gainful employment during the period on appeal, the Board finds that the Veteran's service connected disabilities did not meet the schedular criteria, and there is no probative evidence indicating that he is precluded from obtaining and retaining substantially gainful employment. The September 2013 VA examiner opined that the Veteran is capable of light work. At the August 2016 VA examination, the Veteran denied that hearing loss caused difficulty at work. There is no other probative evidence to the contrary, and the Veteran has been afforded several VA examinations regarding the severity of his service connected disabilities. To the extent that he has other non-service connected disabilities, VA may not consider such impairments. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial disability rating for service connected chronic obstructive pulmonary disorder (COPD) greater than 10 percent disabling from February 18, 1997 to January 14, 2011 is denied. Entitlement to an initial disability rating for service connected chronic obstructive pulmonary disorder (COPD) greater than 60 percent disabling from January 15, 2011 to September 29, 2015 is denied. Entitlement to an initial disability rating for service connected chronic obstructive pulmonary disorder (COPD) greater than 30 percent disabling from October 1, 2015 to the present is denied. Entitlement to an evaluation in excess of 10 percent for the service-connected bilateral hearing loss disability is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs