Citation Nr: 18144907 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 08-23 037 DATE: October 25, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to April 7, 2011 is denied. Entitlement to a rating in excess of 60 percent for bilateral after loss from April 7, 2011, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to April 7, 2011, the Veteran’s hearing loss was manifested by, at worst, Level I hearing loss in the right ear and Level III hearing loss in the left ear. 2. Since April 7, 2011, the Veteran’s hearing loss was manifested by no worse than Level IV hearing loss in the right ear and Level VIII hearing loss in the left ear 3. The Veteran’s service-connected disabilities do not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 7, 2011, the criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). 2. From April 7, 2011, the criteria for entitlement to an evaluation in excess of 60 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to October 1964. This matter comes before the Board of Veterans’ Appeals (Board) from March 2006 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The March 2006 rating decision granted service connection for bilateral hearing loss and assigned an initial noncompensable rating, effective April 21, 2005. The August 2013 rating decision denied TDIU. In June 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The matters were last before the Board in November 2017, when the case was remanded for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As is the case here, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent, based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (“specified frequencies”). To evaluate the degree of disability from service-connected defective hearing, the rating 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 Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone 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 pure tone 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 considered separately. 38 C.F.R. § 4.86(b). The Veteran contends his service-connected bilateral hearing loss warrants a compensable evaluation from April 21, 2005 to April 7, 2011, and an evaluation in excess of 60 percent from April 7, 2011. 1. & 2. Entitlement to an initial compensable rating for bilateral hearing loss prior to April 7, 2011, and in excess of 60 percent thereafter. Several VA audiology examinations are of record. An audiogram conducted during an October 2005 VA examination showed the following pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 15 15 45 45 30 LEFT 35 70 60 60 56 Speech discrimination scores using the Maryland CNC test were 100 percent in the right ear and 94 percent in the left ear. Based on Table VI, the Veteran had Level I hearing loss in both ears. Under Table VII, where hearing loss is at Level I in both ears, a noncompensable evaluation is assigned. An audiogram conducted during a September 2009 VA examination showed the following pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 55 45 35 LEFT 50 75 65 65 64 Speech discrimination scores using the Maryland CNC test were 98 percent in the right ear and 88 percent in the left ear. Based on Table VI, the Veteran had Level I hearing loss in the right ear and Level III hearing loss in the left ear. Under Table VII, where hearing loss is at Level I in one ear and Level III in the other, a noncompensable evaluation is assigned. Thus, for the period prior to April 7, 2011, the probative evidence reflects that a noncompensable evaluation is warranted. The basis for the award of the 60 percent rating by the Appeals Management Center (AMC) in the January 2012 rating decision was a private audiogram conducted on April 7, 2011. However, use of this audiogram for rating purposes was erroneous. In this regard, the private test used the W-22 speech discrimination test, not the required Maryland CNC controlled speech discrimination test; thus, the private audiogram could not be used to assign a higher rating based on the speech scores. 38 C.F.R. § 4.85(a). To further compound the error, the AMC did not even use the actual speech scores from the W-22 test; instead, they used a decibel reading significantly lower than the actual speech scores. This resulted in the erroneous assignment of a 60 percent rating. Had the testing been compliant with 38 C.F.R. § 4.85(a) and been acceptable for rating purposes, a significantly lower evaluation would have been warranted. In this regard, the April 2011 examination conducted by the Veteran’s private audiologist showed the following pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 35 30 55 55 44 LEFT 50 75 70 65 65 The correct speech discrimination scores from the W-22 test were 84 percent in the right ear and 76 percent in the left ear. Applying the correct discrimination scores to Table VI solely for the purpose of comparison, yields a finding of Level II hearing loss in the right ear and Level IV hearing loss in the left ear. Under Table VII, where hearing is Level II in one ear and Level IV in the other, a noncompensable evaluation is warranted. Accordingly, the AMC’s award of a 60 percent rating based on an improperly interpreted private audiogram that was not adequate for rating purposes was erroneous. A VA examination audiogram was conducted in March 2015. This examination showed the following pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 40 35 50 45 43 LEFT 60 85 70 70 71 Speech discrimination scores using the Maryland CNC test were 80 percent in the right ear and 76 percent in the left ear. Based on Table VI, the Veteran had Level III hearing loss in the right ear and Level IV hearing loss in the left ear. Because the left ear exhibits an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86(a), the audiology results for that ear were applied to Table VIA, resulting in Level VI hearing loss, which is more favorable. Under Table VII, where hearing is at Level III in one ear and Level VI in the other, a 10 percent evaluation is assigned. An audiogram conducted during a January 2018 VA examination showed the following pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 40 55 60 55 53 LEFT 55 65 70 75 66 Speech discrimination scores using the Maryland CNC test were 96 percent in the right ear and 80 percent in the left ear. Based on Table VI, the Veteran had Level I hearing loss in the right ear and Level IV hearing loss in the left ear. Because the left ear exhibits an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86(a), the audiology results for that ear were applied to Table VIA, resulting in Level V hearing loss, which is more favorable. Under Table VII, where hearing is at Level I in one ear and Level V in the other, a noncompensable evaluation is assigned. Lastly, the Veteran submitted a private audiogram conducted in July 2018 that appears to have been conducted in accordance with 38 C.F.R. § 4.85(a) and included the results of the Maryland CNC speech discrimination test. The audiogram showed the following pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 50 65 60 60 59 LEFT 70 85 80 75 78 Speech discrimination scores using the Maryland CNC test were 82 percent in the right ear and 52 percent in the left ear. Based on Table VI, the Veteran had Level IV hearing loss in the right ear and Level VIII hearing loss in the left ear. Because the left ear exhibits an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86(a), the audiology results for that ear were applied to Table VIA, resulting in Level VII hearing loss. As the results under Table VIA are less favorable for the left ear than are the results under Table VI, Table VI is applied. Under Table VII, where hearing is at Level IV in one ear and Level VIII in the other, a 20 percent evaluation is assigned. The record also includes private audiologic testing conducted in October 2005, June 2008, June 2013 and February 2015; however, the results of these tests are not adequate for VA purposes, as they were not performed consistent with 38 C.F.R. § 4.85(a). As a result, they cannot be used for rating purposes. See 38 C.F.R. § 4.85. Regardless, the audiometric findings on those private testing reports are consistent with those shown on contemporaneous VA examinations. Based upon the probative audiometric testing of record, the Veteran’s level of hearing loss warrants a noncompensable evaluation prior to April 7, 2011 and actually until March 2015, when audiometric testing supported a 10 percent rating. It is not until the July 2018 private audiological testing that findings consistent with a 20 percent evaluation have been shown. At no time has the evidence supported the 60 percent rating erroneously assigned effective April 7, 2011. It therefore follows that a rating in excess of 60 percent is not warranted from that date. The Board has carefully considered the lay statements of the Veteran regarding the functional impact of his hearing loss, including his difficulty hearing his wife and others, particularly in noisy and public settings, the need to look at people when they speak, asking others to repeat themselves, and not always hearing the high-pitched alarms at his work as a security guard without hearing aids that he has worn since February 2011. The Board also acknowledges that the Veteran believes a higher evaluation is warranted dating back to April 21, 2005, as he stated he has had hearing loss since service that has progressively worsened in the past 10 years. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold averages and speech discrimination based on testing conducted in accordance with 38 C.F.R. § 4.85(a). Consequently, the Board must predicate its determinations based on the results of the valid audiology examinations of record. In this regard, the Board finds the VA examinations and July 2018 private examination to be highly probative and notes they were conducted in accordance with 38 C.F.R. § 4.85(a). Thus, the medical evidence of record is more probative than the Veteran’s lay assertions regarding the severity of his hearing loss. In summary, the most probative evidence indicates that an initial compensable rating prior to August 7, 2011, or in excess of 60 percent disabling thereafter, is not warranted, and the claim for an increased initial rating is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Veteran contends he should be granted a TDIU due to the severity of his service-connected disabilities. The Veteran described the effects of his hearing loss as having to ask people to repeat themselves in order to understand and that his tinnitus interfered with his hearing. VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status may not be considered when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned on a schedular basis when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is rated at 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran filed a claim for a TDIU in July 2012, which was denied in an August 2013 rating decision. The Veteran met the schedular criteria for a TDIU on April 7, 2011, at which time he was service connected for: bilateral hearing loss as 60 percent disabling, tinnitus as 10 percent disabling, and crush injury, left non-dominant, middle and ring fingers residuals, rated as noncompensably disabling. The record indicates the Veteran went into the military out of high school and attained a GED, and after discharge completed some college courses. He stated he worked as a letter carrier for many years, before working for 7 years as a longshoreman, a job which he left in July 2012. An August 2013 record verified the Veteran worked as a longshoreman from April 2004 to June 2012. At his Board hearing, the Veteran testified he quit the longshoreman job because the ships were dangerous and noisy and he had difficulty hearing both with and without his hearing aids, and that he did not feel it was safe for him or his coworkers. He testified he had not tried to find work since 2012 and would rather go on unemployment because he felt he could not perform the work. The medical evidence of record does not show the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment. In this regard, an October 2005 VA examiner indicated the Veteran reported his tinnitus interfered with communication and hearing. A September 2009 VA examiner indicated that, without hearing aids, the Veteran’s hearing disabilities had a significant effect on his occupational activities because he had difficulty communicating, but that with hearing aids, his hearing loss would have a minimal effect on communication. In an August 2013 private treatment record, the Veteran’s audiologist noted that, because of his hearing loss, the Veteran will have some difficulty understanding speech, and greater difficulty if background noise is present, which would create difficulty in the workplace as well as social situations. A March 2015 VA examiner concluded the Veteran’s hearing loss and tinnitus did not impact his ability to work. During the examination, the Veteran reported his tinnitus did not impact his ability to work and stated the functional impact of his hearing loss was his spouse complaining about his hearing problem and having to use hearing aids to hear better. In a March 2017 private treatment record, the Veteran reported difficulty hearing over the telephone and hearing the television and his wife, and that he no longer worked because it was becoming dangerous for him to do so. A January 2018 VA examiner concluded the Veteran would have difficulty hearing instructions in an occupational setting, which could bring him harm to him or coworkers, but that hearing aids would be beneficial depending on the occupation. In a July 2018 treatment record, the Veteran’s private audiologist stated she did not recommend the Veteran return to his previous profession as a longshoreman, as the assymetry of the hearing loss makes sound localization difficult and the decrease in discrimination ability would make it difficult to understand instructions or warnings. Upon consideration of the Veteran’s education level, his work history and the functional impairment noted in the lay and medical evidence, the Board finds the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities render him incapable of performing the physical and mental acts required of employment. While the evidence indicates his service-connected disabilities present difficulty with hearing and understanding speech, especially when background noise is present, and that the Veteran believes it is dangerous for him to work as a longshoreman, the evidence does not show that the Veteran’s service-connected disabilities render him unemployable. See Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). While the record shows the Veteran is not currently working, it also shows he has not attempted to find other work since quitting his job in 2012 and that he has indicated he is retired. The Board acknowledges that the Veteran is rated at 60 percent for his hearing loss; however, as discussed above, that percentage was erroneously assigned, and the actual functional impairment per the Rating Schedule is no worse than 20 percent disabling. See McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009) (the Board, as the final trier of fact, is not constrained by favorable determinations below.) Although the Veteran stated he felt his longshoreman job was unsafe, the evidence does not show that his service-connected disabilities have rendered him unable to perform other occupations consistent with his education and occupational history. In addition, the evidence reflects the Veteran is able to hear with hearing aids. In summary, the preponderance of the probative evidence is against finding that the Veteran is unemployable due solely to his service connected disabilities, and the claim for entitlement to TDIU is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Birder, Associate Counsel