Citation Nr: 18142245 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 11-20 622 DATE: October 15, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has had no worse than Level II hearing loss in both his ears, and the evidence of record has not demonstrated an exceptional pattern of hearing loss during the appeal period. 2. The evidence of record does not establish by a preponderance of the evidence that the Veteran’s service-connected disabilities alone have rendered him unable to obtain or maintain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 501, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from June 17, 1956 to July 1, 1956, and from July 7, 1957 to July 21, 1957. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision. The Veteran initially requested a video hearing before the Board when he appealed that decision but withdrew his hearing request in August 2015. These matters were previously before the Board in May 2017 when the Board found the matter of TDIU was raised by the record and remanded both issues for further development. 1. Entitlement to a compensable rating for bilateral hearing loss Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). “Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Disability ratings for hearing impairment are governed by 38 C.F.R. § 4.85. Generally, and under the circumstances presented by this case, hearing impairment is rated using two different types of hearing tests. Id. First, a veteran’s pure tone audiometric thresholds in each ear are measured in decibels across 4 frequencies (1000, 2000, 3000, and 4000 Hertz) and the average of those scores (rounded to the nearest whole number) is calculated. Id. Second, a veteran’s speech discrimination ability (rendered as a percentage) is determined using the Maryland CNC test. Id. Once the average pure tone thresholds and speech discrimination scores are determined for each ear, the values of each ear individually are combined using Table VI to assign a Roman numeral I-XI. Id. Once each ear is assigned a Roman numeral, the Roman numerals assigned are combined using Table VII to determine a veteran’s disability rating. Id. Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear is assigned a Roman Numeral designation of I. Id. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence regarding the Veteran’s hearing loss during the appeal period includes his October 2010 statement where he states that he believes his hearing loss condition had become more severe. That same month, the Veteran’s brother provided a statement in which he affirmed that the Veteran’s hearing was impaired and that he believed the hearing loss was making his brother unemployable. The Veteran’s hearing loss was examined in a December 2010 VA examination. During that evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 45 65 70 LEFT 15 15 25 65 70 The pure tone average across the 1000 to 4000 Hz was 44 decibels in the right ear and 50 decibels percent in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in each ear. Using Table VI in 38 C.F.R. § 4.85, these results yield Level II hearing loss in both the left and right ears. Table VII provides that where each ear has hearing loss designated Level II, a noncompensable (0 percent) rating is provided. Id. The examiner noted that there was no effect on the Veteran’s daily activities as a result of his hearing loss. The Veteran underwent a private audiological evaluation in December 2011, and the provider also provided a letter regarding this evaluation in January 2012. Pure tone thresholds during this evaluation, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 50 80 65 LEFT 20 20 20 80 70 The Veteran’s average pure tone thresholds on this examination across the 1000 to 4000 Hz values was 48 decibels in the left ear and 61 decibels in the right. It is not clear if the Veteran’s speech discrimination ability was tested using the Maryland CNC test. VA regulations do provide a table (Table VIA) that guides raters in rating hearing loss conditions based only on pure tone thresholds. 38 C.F.R. §§ 4.85(c), 4.86. However, this regulation is clear that this table is only to be used where an evaluator certifies that the use of speech discrimination scores is not appropriate for a particular veteran, or where there are certain specified patterns of hearing loss. Id. Consequently, it appears that this evaluation does not meet the criteria to be used to rate the Veteran’s hearing loss condition. The Board nevertheless observes that the evaluation report does contain a table labeled “Discrimination Loss.” This table includes a column with percentage values of 92 percent in the right ear and 96 in the left. Assuming these values refer to the results of a Maryland CNC test, the Board notes that Table VI would yield a Level II hearing loss in the right ear and a Level I in the left ear. Id. Table VII would then yield a noncompensable (0 percent) rating based on this evaluation as well. The Veteran’s private audiologist, in the letter, explained that over time, the Veteran would begin to perceive sounds as “distorted or muffled” and that speech would become difficult to understand. The audiologist also stated that the severity of the Veteran’s hearing loss would “significantly impair” his ability to hear and understand speech, but that he would “receive the most occupational and communicational benefit with the assistance of hearing aids for both ears.” In May 2014, the Veteran had his hearing evaluated at his local VA medical center. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 35 60 70 LEFT 15 20 20 65 70 Maryland CNC testing was not done. However, the Board notes that the results of this examination yielded pure tone thresholds similar to the previous examinations. The average pure tone threshold across the 1000 to 4000 Hz values was 42 decibels in the right ear and 45 decibels in the left. The Veteran explained to the audiologist that his hearing loss made it difficult for him to understand his spouse, to understand conversations in complex environments, and to understand people who were not facing him when speaking to him. The Veteran perceived his hearing loss as severe. The audiologist noted based on the examination that the Veteran would have trouble with soft/distant speech, higher pitched voices, conversation in complex listening environments. Hearing aids were ordered for the Veteran during this visit. The Veteran underwent another authorized audiological evaluation in July 2015; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 45 65 70 LEFT 20 15 25 60 65 The average pure tone threshold across the 1000 to 4000 Hz values was 51 in the right ear and 41 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Under these circumstances, Table VI provides a designation of Level I hearing loss both the left and right ears. 38 C.F.R. § 4.85. Table VII provides for a non-compensable rating where both ears receive a Level I designation. Id. At this examination, the Veteran reported that he still had trouble hearing conversational speech even when using his hearing aids. In July 2018, the Veteran’s wife provided a statement explaining that the Veteran could not hear her unless she yelled and that he often misheard her. The Veteran also provided a statement in which he explained that he still could not hear well, even with the hearing aids. The Veteran most recently underwent a VA audiological evaluation in August 2018; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 65 65 LEFT 25 25 30 70 70 The average pure tone thresholds across the 1000 to 4000 Hz values was 49 decibels in the right ear and 49 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. Using Table VI, these results provide a Level I hearing loss designation in both ears. 38 C.F.R. § 4.85. Using Table VII, VA assigns a noncompensable (0 percent) rating where both ears are assigned a Level I. Id. At this examination, the Veteran reported trouble hearing in background noise. As described above, the results of the Veteran’s hearing loss examinations at the three VA examinations all correspond to noncompensable ratings. His private audiological evaluation also suggests that his hearing loss warrants a noncompensable rating. To the extent the Veteran has described having difficulty hearing, to include in certain situations and settings or with certain speakers, the Board finds these are directly contemplated by the rating criteria, which is evaluated based on hearing loss. Consequently, the Board finds that the mechanical application of rating criteria in the tables, that are based on the Veteran’s ability to hear noises and recognize words, adequately describe his disability. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board also notes that VA regulations provide for alternative means of rating hearing loss where pure tone thresholds are 55 decibels or greater at each of the values from 1000 to 4000 Hz or where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. However, the Veteran’s hearing loss does not meet either of these exceptional patterns of hearing loss at any of his examinations. Based on the evidence described above, the Board finds that the evidence of record preponderates against the Veteran’s claim for a rating in excess of 0 percent for bilateral hearing loss during the relevant appeal period. 2. Entitlement to TDIU Total disability ratings for compensation may be assigned, where the schedular 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 such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. In determining whether a veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. 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 the veteran can actually find employment. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards previously described. 38 C.F.R. § 4.16. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s only service-connected disabilities are bilateral hearing loss, rated noncompensable, and tinnitus, rated 10 percent disabling. His combined disability rating is 10 percent. 38 C.F.R. § 4.25. Consequently, the Veteran does not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). However, based on the Veteran’s brother’s 2010 statement that the Veteran’s hearing loss sometimes rendered him unemployable, the Board remanded this to request information on the Veteran’s employment history. In response, the Veteran only provided part of the requested form, and it was left blank except for a signature. The Veteran was subsequently notified that some of the information from this form was missing, and advised that a decision would be rendered based on the evidence of record if no reply was received. The medical evidence of record, to include the audiological evaluations described above, notes the Veteran’s complaints regarding difficulty hearing but does not provide any specific information that his audiological disabilities render him unemployable, or information about his employment. The best information about the Veteran’s unemployability in the record comes from statements provided in July 2018 from the Veteran, the Veteran’s step-daughter, and the Veteran’s wife. However, these statements all seem to indicate that the Veteran and his family believe that he has been rendered unemployable due to the combination of the Veteran’s hearing disabilities and disabilities of his eyesight, back, feet and legs, memory, blood pressure, and headaches. Similarly, although the Veteran submitted medical evidence from the EP Premier Medical Group, these treatment records relate to conditions other than the Veteran’s service-connected bilateral hearing loss and tinnitus. Thus, the evidence of record does not indicate that the Veteran’s service-connected disabilities alone are what is rendering him unemployable. Therefore, the Board finds that the evidence of record preponderates against a finding that the Veteran’s service-connected disabilities alone render him unemployable, and it is not appropriate either to award a TDIU on a schedular basis or to refer this matter for extra-schedular consideration. 38 C.F.R. § 4.16; Van Hoose v. Brown, 4 Vet. App. 361. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel