Citation Nr: 18149982 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-16 669 DATE: November 14, 2018 ORDER A compensable rating for bilateral hearing loss prior to April 4, 2017, is denied. An evaluation in excess of 10 percent for bilateral hearing loss after April 4, 2017, is denied. Entitlement to a total disability rating for individual unemployability is denied. FINDINGS OF FACT 1. The Veteran had active service from February 1966 to February 1969. 2. The Veteran’s hearing acuity is no worse than Level V in his left ear and Level IV in his right ear. 3. The Veteran’s service-connected bilateral hearing loss and posttraumatic stress disorder (PTSD) do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to April 4, 2017, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, DC 6100 (2017). 3. The criteria for schedular TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity. Generally, the evaluation is determined after consideration of controlled speech discrimination ability and average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second (Hz). If, however, an examiner certifies that use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., the evaluation will be based solely on the pure tone threshold average. 38 C.F.R. § 4.85(c). Additionally, if the evidence demonstrates the existence of exceptional patterns of hearing impairment, such as where testing reveals pure tone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hz) or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 or more decibels at 2000 Hz, the evaluation can be based on the pure tone threshold average and speech discrimination ability or solely on pure tone threshold average. 38 C.F.R. § 4.86. Further, when impaired hearing is service-connected in only one year, its evaluation is governed by 38 C.F.R. § 4.85(f). The Veteran asserts his bilateral hearing loss is worse than contemplated by the noncompensable rating prior to April 4, 2017, and worse than the 10 percent rating assigned thereafter. Specifically, he claimed in an April 2012 notice of disagreement that his hearing loss warranted a 20-30 percent rating at minimum. During his most recent, April 4, 2017 VA audiology examination, he reported he had difficulty understanding his family, understanding speech with any background noise, and often needed to ask others to repeat themselves. Audiometric testing results recorded during the examination were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 45 65 80 58 LEFT 40 40 60 75 54 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 78 percent in the left ear. Applying these values to the rating criteria results in a numeric designation of IV in the right ear and V in the left ear. Applying the Level IV Roman Numeral designation for the right ear and Level V Roman Numeral designation for the left ear to Table VII results in a 10 percent disability rating for a bilateral hearing loss disability. 38 C.F.R. §§ 3.383, 4.85 (2017). During an October 2011 VA audiology examination, he reported no functional impact or impact on daily life. Audiometric testing results recorded during the examination were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 55 65 44 LEFT 25 30 55 60 42 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Applying these values to the rating criteria results in a numeric designation of I in each ear. Applying the Level I Roman Numeral designation for the right ear and Level I Roman Numeral designation for the left ear to Table VII results in a noncompensable disability rating for a bilateral hearing loss disability. 38 C.F.R. §§ 3.383, 4.85 (2017). During a January 2010 VA audiology examination, he reported that he had to keep the television volume high. Audiometric testing results recorded during the examination were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 60 85 55 LEFT 35 45 55 75 52.5 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. Applying these values to the rating criteria results in a numeric designation of I in each ear. Applying the Level I Roman Numeral designation for the right ear and Level I Roman Numeral designation for the left ear to Table VII results in a noncompensable disability rating for a bilateral hearing loss disability. 38 C.F.R. §§ 3.383, 4.85 (2017). During an April 2008 VA audiology examination, he reported difficulty hearing in crowds and a frequent ringing in both ears. Audiometric testing results recorded during the examination were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 60 85 49 LEFT 30 35 55 85 51 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. Applying these values to the rating criteria results in a numeric designation of I in the right ear and II in the left ear. Applying the Level I Roman Numeral designation for the right ear and Level II Roman Numeral designation for the left ear to Table VII results in a noncompensable disability rating for a bilateral hearing loss disability. 38 C.F.R. §§ 3.383, 4.85 (2017). The Veteran also submitted a private audiogram from March 2016. However, the audiogram does not indicate if the Maryland CNC wordlist was used to measure speech recognition and is, therefore, not applicable for rating purposes. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). At the various VA examinations, the Veteran was asked to describe the impact that his hearing impairment had on his daily life, as was shown above. The October 2011 VA audiology examination report indicated the examiner asked the Veteran for the impact on occupational functioning and daily life, and that he indicated that there was none. Although there is no narrative answer, that VA audiology report, along with all others, complied with the requirements set forth in Martinak. The Board has considered the Veteran’s lay statements that his hearing is worse than currently rated. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. He is not, however, competent to identify a specific level of hearing loss according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings, as provided in the examination reports, directly address the criteria under which the disability is evaluated. Based on the evidence, the appeal is denied. The Board has considered the Veteran’s claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). TDIU 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When there is an approximate balance of positive and negative evidence material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran claims that his service-connected disabilities, specifically PTSD, are sufficient to produce unemployability. He is rated at 70 percent for PTSD and 10 percent for bilateral hearing loss, for a combined rating of 70 percent from December 15, 2009. These are his only two service-connected disabilities. The Veteran has asserted and evidence has shown that he last worked in 2004. His last employer submitted documentation in April 2016 that showed he had been an employee for 34 years, and retired in October 2004. The employer noted that the Veteran missed 27 days of work for disability in his final year, however neither the employer nor the Veteran have attributed this time to PTSD or bilateral hearing loss. The employer did not indicate whether any service-connected disability caused observable functional impairment while he was employed. The Veteran stated during a June 2010 VA examination that although he felt irritable due to PTSD symptoms, he had a good relationship with coworkers and superiors, and did not miss time from work. During a July 2017 VA examination, he stated that his job had been very physical demanding, and his then increase of physical health problems caused him to retire. However, the Veteran has contended in multiple instances that his disabilities worsened following his retirement, in part, due to the additional time he then had to think about stressors in service. As such, that the evidence does not show his service-connected disabilities did not impact or cause his last employment to be terminated does not weight heavily against his claim. Turning first to his service-connected bilateral hearing loss, the Veteran endorsed some impact on daily life during his VA examinations as discussed above, however he has not claimed any significant functional impact. VA examinations and treatment records have not noted a significant functional impact such that his bilateral hearing loss disability would cause him to be unemployable. In contrast, there is evidence that weighs both for and against finding that his PTSD symptoms cause him to be unemployable. First, various VA examiners have found significant functional impairment caused by PTSD symptoms, but none have determined that PTSD causes him to be unemployable. During a May 2010 VA examination, he endorsed symptoms of social withdrawal, anhedonia, traumatic re-experiencing of events that caused anxiety, rare recurrent nightmares, and irritability. The examiner found him to be a reliable historian, but did not notice the severe irritability described at any point during the examination. He did note that concentration was markedly impaired, but that abstract thinking, memory, and judgment did not appeared impaired. The Veteran did not consider himself unemployable, but rather retired. During an October 2011 VA examination, he endorsed or demonstrated symptoms of recurrent recollections of stressors, anhedonia, avoidance of thoughts and activities related to service, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, mild memory loss, depressed mood, disturbances of motivation and mood, and flattened affect. The Veteran claimed he was capable of managing his financial affairs. The examiner stated that his symptoms were similar to his 2010 VA examination, and caused occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Next, during a July 2017 VA examination, he endorsed or was found to have symptoms of recurrent dreams of stressors, avoidance of thoughts or feelings related to stressors, persistent and exaggerated negative beliefs or expectations about himself or others, persistent negative emotional state, feelings of detachment or estrangement, irritable behavior, hypervigilance, exaggerated startle response, depressed mood, anxiety, suspiciousness, disturbance of motivation and mood, anhedonia, and anxiety around crowds. The examiner found his affect to be normal, that he was coherent and logical, and competent to handle his financial affairs. The examiner again found that his symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. She reasoned that the Veteran’s psychiatric symptoms were not considered of the nature or severity that would preclude gainful employment. The Veteran may become emotionally overwhelmed and unfocused at times; however, this is not to the degree where he would be unable to work. Therefore, she found no functional impairments from a mental health perspective on his occupational abilities. The Veteran also attended a separate July 2017 VA Social Work and Industrial Survey examination. The Veteran stated that he attempted to attend mass daily, and sometimes had breakfast with a fellow Veteran and parishioner. As mentioned above, the Veteran stated he retired due to an increase in physical health problems. The examiner noted he had a high school level education, with additional training as a paramedic. In contrast, the Veteran submitted several private opinions indicating that his disabilities render him unemployable. First, a private psychologist noted in an April 2013 evaluation that his PTSD symptoms included general nervousness, tension, anxiety, sleep disturbances, sexual problems, feeling weak and fatigued, concentration problems, irritability, tendency to withdraw, depressed mood, crying spells, sensitivity to noise, recurrent thoughts of stressors, avoidance of situations, flashbacks of traumatic situations, increased distractibility, unstable moods, hopelessness about the future, panic attacks, frightening thoughts and images, anger or irritability for no particular reason, anhedonia, and feeling apathetic. Next, he submitted a May 2016 private psychologist evaluation. The psychologist found that he was able to use telephone, heat water, make coffee, turn off stove, mail letters, drive, use public transportation, dress, bathe, and take care of personal hygiene. He had difficulty but could manage financial affairs, shop alone for clothes and groceries, remember appointments, and do household chores. With assistance or supervision, he could play a game of skill, work on a hobby, keep track of current events, or do outdoor chores like yardwork. He had a complete inability to perform tasks such as sexual activity, paying attention to, understanding, or discussing television, books, or magazines. It was unclear which of these impairments was solely related to his service-connected disabilities. He reported becoming easily irritable. Findings indicated severe symptomatology of PTSD, however, did not assess whether he was unable to follow a substantially gainful occupation due to PTSD symptoms alone. In fact, it was reasoned that the Veteran’s symptoms were worse since his retirement since he had nothing else to occupy his time other than ruminating about his past. The psychiatrist concluded from these symptoms and overall presentation that the Veteran had moderate-to-severe psychopathology controlled by psychoactive medications and low-stress environment. It was reasoned, based on this impairment, that the Veteran should not return to the workforce, as his ability to concentrate and sustain persistence for work tasks, deal with the stresses of work, deal with supervisors and co-workers were all moderately-to-markedly impaired, overall ability to deal with supervisors and co-workers, and thus engaging in any employment other than low-paying work would result in a deterioration in psychological functioning. The Veteran submitted a separate November 2017 private assessment that concurred in conclusion with the one discussed above. However, despite noting similar symptomatology, the psychologist concluded that the Veteran’s present degree of severity of his mental illness existed since February 22, 1969, and that he is totally disabled emotionally and unable to function in any job in any capacity. This undercuts the probative weight of the assessment. The Veteran worked in his most recent position for 34 years, without missing time due to PTSD, and without having difficulty interacting with colleagues or superiors, since 1969. Further, on many occasions he has maintained that his symptoms increased dramatically following retirement. This indicates either that the psychologist did not have a full understanding of the Veteran’s work history or symptomatology progression over the years, or that the assessment’s conclusion was made independent of available facts. This same psychologist submitted an August 2018 addendum opinion, refuting the findings of the July 2017 VA examiner. The private psychologist stated that the VA examiner was inconsistent, and that during the psychologist’s own evaluation, he found that the Veteran becomes significantly more than just emotionally overwhelmed and unfocused at times, and rather that his symptoms caused him to be unable to function in any job in any capacity. However, as noted above, reduced probative weight is given to that psychologist’s original evaluation given the inaccurate recounting the progression and timeline of the Veteran’s PTSD symptoms. As such, using it as a point of comparison to the VA examiner’s evaluation is also not particularly probative. During his June 2016 Board hearing, the Veteran stated he did not believe he would be able to work for anyone due to his lack of attention span. He noted in a January 2016 correspondence that as he retired in 2004, his anxiety and depression were becoming more apparent and made going to work difficulty, and impacted his performance; however, he has endorsed different reasons for retiring at different points as noted above. Generally, he has noted it was due to increasing nonservice-connected disabilities. His son and daughter submitted correspondence regarding the severity of the Veteran’s PTSD symptoms, which align with the symptoms shown in private evaluations and VA examinations. However, neither document expressly shows how his symptoms impact his employability. While information submitted from the Veteran, his family, and private psychologists show that his PTSD symptoms are severe, the Board finds that the most probative evidence of record does not support a finding that he is unemployable. The opinions of the VA examiners, who have fully reviewed his treatment records, are accorded a high degree of probative weight. In totality, his service-connected disabilities do impact his ability to find and maintains employment, but the 70 percent rating for PTSD and 70 percent combined rating properly reflect that level of functional impairment. As such, while the evidence shows that his disabilities could cause difficulties finding and maintaining employment had he been attempting to do so, they do not preclude him from securing or following substantial gainful employment. Finally, his functional impairment is contemplated by the rating percentages his disabilities warranted. His PTSD symptomatology is reflected in the criteria for a 70 percent rating. In light of the above discussion, the preponderance of the evidence is against the claim for TDIU and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette, supra. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel