Citation Nr: 18148129 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 18-00 093 DATE: November 6, 2018 ORDER Entitlement to a rating in excess of 40 percent disabling for bilateral hearing loss is denied. Entitlement to a 40 percent schedular rating for peripheral vascular disease, left lower extremity is granted. Entitlement to a 40 percent schedular rating for peripheral vascular disease, right lower extremity is granted. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, audiometric testing has revealed no worse than Level VII hearing acuity in the Veteran’s left ear and Level VI in his right ear. 2. For the entire appeal period, the Veteran’s bilateral peripheral vascular disease has been productive of claudication on walking less than 100 yards, with an ABI of greater than .5 and less than .7 in each lower extremity. 3. The evidence of record does not support a finding that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)., Diagnostic Code (DC) 6100 (2018). 2. The criteria for a 40 percent rating for peripheral vascular disease of the left lower extremity are met. 38 U.S.C. §§ 1155, 5103, 5103A (West 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.104, DC 7114 (2016). 3. The criteria for a 40 percent rating for peripheral vascular disease of the right lower extremity are met. 38 U.S.C. §§ 1155, 5103, 5103A (West 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.104, DC 7114 (2016). 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 5110 (a), 5107(b) (2012); 38 C.F.R. §§ 3.400, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to a rating in excess of 40 percent disabling for bilateral hearing loss The Veteran contends that his bilateral hearing loss warrants a higher disability rating. Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIa, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). There are certain exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86. VA treatment records indicate that the Veteran continues to suffer from hearing loss and is using hearing aids. In April 2016, the Veteran attended Hearing Loss Disability Benefits Questionnaire (DBQ) examination. Upon examination, pure tone thresholds, in decibels, were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 75 60 75 80 85 LEFT 78 65 75 85 85 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 82 percent in the left ear. Using Table VIa, the Veteran’s April 2016 examination results revealed Level VI hearing loss in the right ear and Level VII in the left ear. Combining these levels according to Table VII results in a 30 percent disabling rating. Although the Veteran’s has difficulty hearing in certain situations, the rating schedule was developed to accommodate exceptional patterns of hearing impairment recognized by the results of his hearing evaluation. Here, applying the results of the Veteran’s hearing test to the rating schedule establishes that an increased rating is not indicated. Entitlement to a rating in excess of 20 percent disabling for peripheral vascular disease of each lower extremity The Veteran contends that his disability warrants a higher rating in a claim received on January 12, 2016. Specifically, he indicates that he has trouble walking 50 feet. Diseases of the heart and cardiovascular system are rated under 38 C.F.R. § 4.104; arteriosclerosis obliterans (ASO) is rated under the provisions of Code 7114. A 20 percent rating is warranted for peripheral vascular disease when it is manifested by claudication on walking more than 100 yards, and; diminished peripheral pulses or the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure (ABI) of 0.9 or less. A rating of 40 percent is assigned for claudication on walking between 25 and 100 yards on a level grade at two miles per hour; and, trophic changes (thin skin, absence of hair, dystrophic nails) or ABI of 0.7 or less. A rating of 60 percent is assigned for claudication on walking less than 25 yards on a level grade at two miles per hour; and, either persistent coldness of the extremity or ABI of 0.5 or less. A rating of 100 percent is assigned for ischemic limb pain at rest; and, either deep ischemic ulcers or ABI of 0.4 or less. 38 C.F.R. § 4.114, DC 7114. Note (1) to Code 7114 states the normal ABI index is 1.0 or greater. In April 2016, the Veteran attended an Artery and Vein Conditions (Vascular Diseases Including Varicose Veins) DBQ VA examination. The examiner diagnosed bilateral peripheral artery disease and indicated bilateral claudication on walking more than 100 yards. In a June 2016 Notice of Disagreement, the Veteran indicated he had trouble walking 50 feet, approximately 16 yards. In a July 2016 VA Cardiology Consultation note, the Veteran reported cramping in his calves for years. He also indicated that he “does all he wishes and can manage pretty easily.” The examiner noted that his claudication was stable and doesn’t interfere with the Veteran’s usual activities. An October 2016 ABI study at the Michael DeBakey Medical Center indicated an index of .53 for the lower right extremity and .52 for the lower left extremity. Based on the foregoing evidence of record, the Board finds that with the resolution of reasonable doubt in the Veteran’s favor, a 40 percent evaluation for each lower extremity is warranted. This is based on the ABI between 5 and 7, together with the Veteran’s report of difficulty walking in excess of 50 feet. Although there is a report showing the Veteran was indicated as capable of walking more than 100 yards without claudication, the report did not show how that fact was determined. Likewise, the 2016 cardiology note reflecting the veteran could manage easily, appears to have been expressed in the context of the Veteran describing how he manages his 9 acres. It also was noted that his was accomplished using riding mowers. Persistent coldness and ABI of .5 or less is not shown, as to warrant a 60 percent evaluation. Entitlement to total disability based on individual unemployability (TDIU) Total disability ratings for compensation may be assigned where the schedular rating is less than total, when 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. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. The Veteran contends that his service-connected diabetes and bilateral hearing loss prevent him from maintaining gainful employment. As of August 31, 2011, the Veteran has met the schedular requirements for TDIU. From that date the Veteran was service-connected for bilateral hearing loss at 40 percent disabling; PTSD at 30 percent disabling, diabetes mellitus at 20 percent disabling; tinnitus at 10 percent disabling; hypertension at 10 percent disabling; coronary artery disease at 10 percent disabling; and bilateral peripheral neuropathy vascular disease rated noncompensable. Each lower extremity has since been evaluated as 20 percent disabling by the RO, and each are now 40 percent disabling by this decision. On a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated he had two years of high school education and last worked in April 2005. He was a machinist for the same company from 1980 to 2005. On the Veteran’s April 2016 hearing loss examination, it was noted that the Veteran’s functional impairment involved the usage of hearing protection if he worked in a noisy environment. Other examinations conducted at this time indicated that the Veteran’s diabetes itself did not affect his ability to work; and that his PTSD only produced mild occupational impairment. The Veteran testified that he had no problems standing and that his past work history was at a stationary position, (although he would obviously have to get himself to that position). It also was indicated that he could maintain his acreage. Although not employed, based on this evidence it is not shown the Veteran’s service connected disabilities preclude employment. Accordingly, entitlement to TDIU benefits is not established. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel