Citation Nr: 18153791 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 12-03 500 DATE: November 28, 2018 ORDER An increased rating for bilateral hearing loss, to include entitlement to an extraschedular rating, is denied. A total disability rating based on individual unemployability, to include on an extraschedular basis, is denied. Service connection for chronic serous otitis media is granted. APPELLANT’S CONTENTIONS The appellant, the Veteran’s widow, has been substituted as the claimant for purposes of processing the instant claims to completion. She contends that the ratings currently assigned for the Veteran’s bilateral hearing loss—0 percent disabling from December 29, 2006, and 50 percent from January 11, 2011—do not accurately reflect the severity of the disability he experienced. Specifically, she asserts that the Veteran’s hearing loss caused exceptional or unusual disability such that the application of the regular schedular standards to his disability is impractical, and an extraschedular rating is warranted. The appellant also contends that as a result of the Veteran’s service-connected disabilities, he was unable to secure or follow a substantially gainful occupation after he stopped working in February 2017, following his diagnosis of lung cancer. FINDINGS OF FACT 1. Before January 11, 2011, the Veteran’s bilateral hearing loss was manifested by impairment of auditory acuity no worse than Level II in either the right or left ear. See March 2007 VA Examination; January 2011 VA Treatment Record. 2. From January 11, 2011 on, the Veteran’s bilateral hearing loss was manifested by impairment of auditory acuity no worse than Level VIII in the right ear and Level IX in the left ear. See VA Examinations dated March 2011, March 2012, July 2014, October 2015; March 2011 VA Treatment Record; October 2012 Private Treatment Record. 3. All functional impairment the Veteran experienced as a result of his bilateral hearing loss was adequately contemplated by the rating schedule. 38 C.F.R. § 4.85, Diagnostic Code 6100; See, e.g., February 2012 Substantive Appeal; November 2012 Board Hearing; June 2014 Veteran Statement; August 2016 VA Medical Opinion; October 2018 Appellant Statement. 4. The Veteran’s chronic serous otitis media had its onset during his active duty service. See VA Treatment Records dated January 2011, December 2014; August 1976 Service Treatment Record. 5. The Veteran was not unable to secure or follow a substantially gainful occupation as the result of his bilateral hearing loss at any point during the claim period. See February 2012 Substantive Appeal; November 2012 Board Hearing; Veteran Statements dated June and November 2014; August 2016 VA Medical Opinion; October 2018 Appellant Statement. CONCLUSIONS OF LAW 1. The criteria for an increased rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for an extraschedular rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b). 3. The criteria for service connection for chronic serous otitis media are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for a total disability rating based on individual unemployability, to include on an extraschedular basis, are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 1974 to October 1981. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a decision dated in May 2014, the Board denied an increased rating for the period prior to March 13, 2012, and remanded the appeal pertaining to the period beginning on that date. The Veteran appealed the decision to the United States Court of Appeals For Veterans Claims (Court). In a December 2014 Order vacating the May 2014 Board decision, the Court found that the Board had erred in determining that the VA audiometric examinations of record were adequate, because the examiners, and the Board, did not “address [the Veteran’s] assertions regarding the actual practical impact of his hearing loss on his employment or daily activities.” The Court cited to Martinak v. Nicholson, 21 Vet. App. 447 (2007), which held that VA audiologists “must fully describe the functional effects caused by a hearing disability” in their final reports. In a February 2015 Remand implementing the Court’s Order, the Board found that the Order had raised the issue of entitlement to an extraschedular rating. The Board stated: In Martinak the Court noted that the failure of an examiner to discuss functional impairment would not be prejudicial unless extraschedular entitlement under 38 C.F.R. § 3.321(b) was at issue. (at 455–6). The parties to the [joint motion for remand] did not discuss extraschedular entitlement, but in finding prejudicial error implicitly found that an extraschedular question was raised. Noting that it could not address the issue in the first instance, the Board remanded to the RO to refer the case to the Director of Compensation and Pension Service for consideration of entitlement to an extraschedular rating in accordance with 38 C.F.R. § 3.321(b)(1). Upon receipt of the opinion of the Director, the Board denied entitlement to an extraschedular rating in a July 2017 decision. In a May 2018 Order granting a joint motion for remand, the Court vacated the Board’s decision and remanded for readjudication consistent with the terms of the joint motion. The motion stated that the Board’s decision erred in the following ways: 1) By failing to reconcile its finding that the Veteran’s earning capacity had not been impaired by his hearing loss—because there was no evidence that the Veteran missed any work, had any hospitalizations, or that his employment had been shortened due to his hearing loss—with the Compensation Director’s opinion that the Veteran’s hearing loss made occupational activity “difficult but not impossible.” 2) By failing to discuss the Veteran’s statements regarding how he perceived his hearing loss, including statements that his hearing loss caused aggravation, anger, and problems using his headset at work, and that his hearing loss caused him difficulty passing his work physical. The motion also stated that the Board should make particular findings for each stage of the Veteran’s staged rating. 1. Entitlement to an Increased Rating for Bilateral Hearing Loss Loss of hearing acuity is evaluated under 38 C.F.R. § 4.85, which establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 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). The Veteran was afforded five VA examinations with audiograms throughout the claim period. In addition, three other audiograms are of record, produced at VA and private audiology appointments. The puretone threshold findings of these audiograms, as well as the results of speech discrimination tests, are as follows, with average puretone thresholds for the frequencies 1000–4000 Hz noted in bold at the far right: March 2007 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 60 75 – 54 LEFT 45 50 55 70 85 – 65 Speech Discrimination: R 100%; L 96% January 2011 VA Medical Center Appointment HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 45 80 90 – 65 LEFT 50 45 60 75 90 – 67.5 Speech Discrimination: R 96%; L 96% March 2011 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 35 75 80 – 56.25 LEFT 50 45 60 90 95 – 72.5 Speech Discrimination: R 84%; L 96% March 2011 VA Medical Center Appointment HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 75 80 – 56.25 LEFT 35 45 55 80 85 – 66.25 Speech Discrimination: R 96%; L 96% March 2012 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 50 90 95 – 71.25 LEFT 50 55 65 90 95 – 76.25 Speech Discrimination: R 98%; L 96% October 2012 Private Appointment HERTZ 500 1000 2000 3000 4000 RIGHT 65 70 85 95 100 – 87.5 LEFT 75 85 95 100 100 – 95 No Speech Discrimination Scores July 2014 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 75 95 105 – 85 LEFT 70 80 80 90 105 – 89 Speech Discrimination: R 76%; L 74% October 2015 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 55 65 75 100 100 – 85 LEFT 65 70 75 90 100 – 84 Speech Discrimination: R 88%; L 96% Applying the results of the audiograms from March 2007 to March 2012 to Table VI of 38 C.F.R. § 4.85 yields the following findings, and the corresponding ratings under Table VII: March 2007: R Level I; L Level II: 0 Percent Disability January 2011: R Level II; L Level II: 0 Percent Disability March 2011: R Level II; L Level II: 0 Percent Disability March 2011: R Level I; L Level II: 0 Percent Disability March 2012: R Level II; L Level II: 0 Percent Disability From the October 2012 audiogram on, puretone thresholds at each of the specified frequencies (500, 1000, 2000, 3000, and 4000 Hz) are 55 decibels or more for both of the Veteran’s ears. When the puretone threshold at each of the specified frequencies is 55 decibels or more, VA determines the level of hearing loss using either Table VI or Table VIa (impairment based on puretone thresholds alone), whichever results in the higher level. Applying this standard to the audiograms from October 2012 to October 2015 yields the following findings and ratings (with the most favorable of Table VI and VIa noted): October 2012 (Table VIa): R Level VIII; L Level IX: 50 Percent Disability July 2014 (Table VIa): R Level VIII; L Level VIII: 50 Percent Disability October 2015 (Table VIa): R Level VIII; L Level VIII: 50 Percent Disability In sum, the objective evidence of record does not support schedular ratings in excess of 0 percent before January 11, 2011, nor in excess of 50 percent from that date forward. Furthermore, as discussed in detail below, all of the Veteran’s subjective complaints of his hearing loss are adequately contemplated by the schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that the schedular rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment). Therefore, increased schedular ratings in excess of 0 percent before January 11, 2011, and in excess of 50 percent from that date on, are not warranted. 2. Entitlement to an Extraschedular Rating for Bilateral Hearing Loss Background When a Veteran’s case presents such an exceptional or unusual disability picture as to render the available schedular ratings inadequate, due to such related factors as marked interference with employment or frequent periods of hospitalization, the case shall be referred to the Director of Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111, 115-17 (2008). If either a claimant or the evidence of record indicates that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extraschedular rating is warranted. Id. Here, the case was referred to the Director of Compensation Service in February 2017. The Director provided an opinion in March 2017, which stated that “based on the totality of evidence of record, there is no foundation for an extra-schedular evaluation for bilateral hearing loss in excess of 0 percent prior to January 11, 2011 and 50 percent subsequently.” The Director noted that the evidence did not show a marked interference with work, frequent hospitalization, or unusual or exceptional disability, and commented that “[o]occupational activity was shown to be difficult but not impossible as a result of hearing loss.” The Director concluded that the Veteran’s bilateral hearing loss limited but did not preclude occupational activity, and that the rating schedule included all the symptoms of his disability. For these reasons, the Director found that an extraschedular rating was not warranted. The Board agrees with the analysis of the Director of Compensation Service. As a preliminary matter, neither the Board nor the Court has previously made a finding to the contrary, although the issue of entitlement to an extraschedular rating was raised at the Board’s instance. Rather, as explained above, in its May 2015 Remand, the Board inferred that the issue of entitlement to an extraschedular rating had been raised by the Court’s reliance on Martinak in its December 2014 Order finding that remand was warranted for failure to consider the functional effects of the Veteran’s hearing loss. Accordingly, neither the Court nor the Board has made findings as required under Thun v. Peake, 22 Vet. App. 111 (2008) that: 1) the evidence before VA presents such an exceptional disability picture that the available schedular evaluations are inadequate, and 2) that the Veteran’s disability picture exhibits other related factors such as those provided by 38 C.F.R. § 3.321(b)(1) as “governing norms,” namely marked interference with employment and frequent periods of hospitalization. Instead, these findings were made in the first instance by the RO, in its February 2017 memorandum referring the case to the Director of Compensation Service. Specifically, the RO found that “the medical evidence reveals an exceptional disability with such related factors such as marked interference with employment specifically as a truck driver,” thus satisfying both Thun elements. As noted above, the Director of Compensation Service disagreed with the RO’s analysis of the facts under Thun, and the Board denied an extraschedular rating in accord with the Director’s opinion. In light of the Court’s vacatur of the Board’s July 2017 decision, the Board now reviews the issue anew, in accord with the guidance provided by the parties’ joint motion to the Court. Evidence of Functional Impairment The Veteran provided ample testimony of his functional impairment throughout the claim period, both to VA clinicians and to VA directly. This evidence was supplemented by the notes of VA examiners, two VA opinions regarding the Veteran’s functional impairment, and lay statements submitted by his wife, the appellant. The Board begins by examining this evidence in its entirety. At two VA medical center appointments in January 2011, the Veteran reported that he had had difficulty hearing normal conversational speech for the past six months, but denied symptoms of dizziness, vertigo, and aural fullness. A VA clinician noted excellent speech discrimination. In a February 2011 statement, the Veteran reported that he had lost a lot of his hearing over the past year. He reported that he could not hear people talking, and that his family was encouraging him to get hearing aids. He stated that as a truck driver, it was important for him to hear as much as possible. He reported that he could not hear the ring tone on his cell phone, even at high volume. At a March 2011 VA examination, the examiner noted the Veteran experienced difficulty hearing and understanding. In his March 2011 notice of disagreement, the Veteran reported that he was having more trouble hearing people. He stated that “they were going to operate on my ears at one time, but determined that it would not help.” In his February 2012 substantive appeal, the Veteran reported that when he took out his hearing aids he could not hear a thing. He reported that when his battery went out he was without hearing, which was a safety problem. At a March 2012 VA examination, the Veteran reported that with his hearing aids he did pretty well if it was quiet, although if there was noise he would not understand everything that was said. At the Veteran’s November 2012 hearing before the Board, he testified that his hearing had worsened since his March 2012 VA examination. He testified that he had a hard time hearing what people were saying, and that when he took his hearing aids out at night, it was silent; he could not hear anything. He testified that when he watched TV without his hearing aids he would have the volume “blaring” and not notice it. He testified that his wife would have to come over to him and tap him on the shoulder to get his attention, because he could not hear her. The Veteran also testified that he had almost failed his Department of Transportation physical examination for the previous year due to his hearing loss. He testified that he had another examination coming up in March, and that if he did not pass he would lose his job. He testified that on occasion his boss had dispatched him someplace that he could not hear, and he had “got into trouble over it.” In a June 2014 statement, the Veteran reported that his hearing loss and tinnitus caused him to become aggravated and angry on a daily basis. He stated that he did not like to interact with people because they would ask him to repeat himself. He stated that his hearing aids caused problems with his cell phone and his headset at work, but if he took them out, he could not hear. At a July 2014 VA examination, the Veteran reported that he had a hard time hearing what his boss told him to do at work. He stated: “there is a lot of safety involved in driving a truck. If I cannot pass my health test in hearing, I lose my job.” At a September 2014 VA medical center appointment, the Veteran reported that in 2011 he could hear better without his hearing aids then he could currently. He stated that without his hearing aids “it gets fairly quiet.” The clinician noted that the Veteran did not seem to have trouble understanding him with his hearing aids out. In a November 2014 statement, the Veteran stated that he would lose his job in March because he would not pass the Department of Transportation hearing test. At an October 2015 VA examination, the examiner noted that the Veteran had difficulty understanding speech in most situations without his hearing aids, but that his hearing loss did not affect his ability to work. In a July 2016 VA medical opinion, the examiner opined that the Veteran was able to maintain employment with the use of hearing aids. He stated that the Veteran had difficulty understanding speech in most situations without hearing aids, but that even without hearing aids the Veteran was able to understand speech with 88 percent discrimination in the right ear and 96 percent discrimination in the left ear, referring to the Veteran’s October 2015 audiogram. In an August 2016 VA medical opinion, the examiner noted that the Veteran’s puretone thresholds without hearing aids did not meet the Federal Motor Carrier Safety Regulations criteria, but that it was more likely than not that the Veteran would meet those criteria with hearing aids. The examiner concluded that if hands-free communication while driving were required, an amplified headset or wireless Bluetooth device linking the Veteran’s hearing aids with his cell phone would be necessary. The examiner opined that without hearing aids, the Veteran would not meet the Federal criteria and likely would not be able to hear environmental noises such as other vehicles or sirens, causing a safety risk. The examiner further opined that without hearing aids it was expected that the Veteran would not be able to communicate effectively unless facing the speaker at a close distance, and that even then, requests for repetition would likely be needed. With background noise or in groups, the examiner opined that the Veteran would have greater difficulty understanding, even facing the speaker, and even with hearing aids might miss essential parts of the conversation. In an October 2018 statement, the Veteran’s wife, the appellant, reported that when he was driving the Veteran had had to have his dispatcher radio set to the highest volume, and that his safety had been at risk, since he could not hear horns or train whistles. The appellant reported that the Veteran had become frustrated by asking people to repeat things, and that he could not hear people talking to him even when they were shouting. She reported that he had experienced pain in his ears, and that as a result of his hearing loss he had been isolated and only socialized with his family, since they were accustomed to speaking loudly to him. She reported that “he was often irritable and upset because of his inability to hear, and at times got really discouraged and disgusted by it.” Extraschedular Analysis As noted above, an extraschedular rating may be warranted where: 1) The evidence presents such an exceptional disability picture that the available schedular rating criteria are inadequate; and 2) The Veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms,” namely, marked interference with employment and frequent periods of hospitalization. Significantly, “marked interference with employment” does not require difficulty obtaining or maintaining employment. Thun v. Peake, at 115–117. Only if both of these elements are satisfied is an extraschedular rating warranted. Here, the Board finds that an extraschedular rating is not warranted, for either the period before January 11, 2011 or the period from that date forward, because neither Thun element is satisfied. Functional Impairment Before January 11, 2011, Including the Veteran’s Lay Statements The evidence of functional impairment for the period before January 11, 2011 is scarce. The Veteran provided no statements regarding functional impairment with his December 2006 claim for disability benefits. At a March 2007 VA examination, the examiner noted hearing loss and tinnitus, but no functional impairment. As noted above, at a January 2011 VA medical center appointment, the Veteran reported that he had difficulty hearing normal conversational speech, but denied symptoms of dizziness, vertigo, and aural fullness. The clinician noted mild to profound hearing loss in the right ear and moderate to profound hearing loss in the left ear, with excellent speech discrimination for both ears. Finally, in his February 2011 statement, the Veteran reported that he could not hear people talking and that he could not hear his cell phone ring tone. He stated that this was a safety concern with his job as a truck driver. In King v. Shulkin, 29 Vet. App. 174, 177–178 (2017), the Court explained that the object of the rating criteria is to “represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability.” With regard to hearing loss in particular, the Court has held that the schedular criteria contemplate the functional effects of decreased hearing and difficulty understanding in an everyday work environment, specifically the “inability to hear or understand speech or to hear other sounds in various contexts. . . .” Doucette, at 369. All the evidence of the Veteran’s functional impairment due to his hearing loss before January 11, 2011 comes down to the inability to hear or understand speech or to hear sounds in various contexts, specifically his cell phone ring tone. The fact that such impairment caused problems for the Veteran’s work is not separate evidence of functional impairment. Rather such problems constitute an effect of the Veteran’s impairment, and it is precisely this effect that the rating schedule is intended to compensate. For this reason, under Thun, interference with employment does not suffice to warrant an extraschedular rating; “marked” interference with employment is required. Here, there is no evidence at all of interference with the Veteran’s employment other than his statement that hearing loss presented a safety concern for his job as a truck driver. In this regard, the Board notes that the safety risk attendant on truck driving with hearing loss is contemplated and provided for by the Federal regulations cited in the August 2016 VA medical opinion. These regulations are intended to ensure that truck drivers with hearing loss too severe to drive safely may not do so. According to the August 2016 opinion, even at that time, when the Veteran’s hearing loss was much more severe than before January 2011, he qualified under the Federal regulation to drive safely, so long as he wore hearing aids and kept a spare battery. Therefore, the Board finds that prior to January 11, 2011, the evidence does not present such an exceptional disability picture that the available schedular criteria are inadequate, and that the Veteran’s disability picture does not exhibit other related factors such as marked interference with employment or frequent periods of hospitalization. Functional Impairment from January 11, 2011 On, Including the Veteran’s Lay Statements As before January 11, 2011, all of the evidence of Veteran’s functional impairment due to his hearing loss from that date on reduces to the inability to hear or understand speech or to hear sounds in various contexts, with very few exceptions. To summarize the evidence enumerated above in detail, the VA examinations in March 2011, March 2012, July 2014, October 2015, July 2016, and August 2016, as well as a September 2014 VA treatment record and the Veteran’s March 2011 notice of disagreement, February 2012 substantive appeal, and November 2012 Board hearing all report either strictly the Veteran’s inability to hear or understand speech or to hear sounds in various contexts, or the effect of this inability on his work, especially with regard to safety. As with the evidence prior to January 11, 2011, this is precisely the sort of functional impairment which King and Doucette indicate is specifically contemplated by the rating schedule for hearing loss. Therefore, for the reasons enumerated above, the Board finds that this impairment does not comprise such an exceptional disability picture that the schedular criteria are inadequate. Several other pieces of evidence contain statements not exhausted by the above analysis, and warrant individual treatment. First, in his notice of disagreement, the Veteran reported that at some point in time he or his doctors had been contemplating surgery on his ears, but that it was “determined that it would not help.” Presumably the Veteran presented this statement as evidence of the severity of his hearing loss. If the Veteran had undergone surgery, he might have had a claim for a temporary evaluation during convalescence, but the record reflects no history of ear surgeries. See October 2015 VA Examination. More to the point, the fact that surgery was contemplated neither constitutes impairment in and of itself nor establishes the existence of functional impairment not contemplated by the rating criteria. There is no evidence indicating what pathology or symptoms the surgery would have treated. Secondly, in a June 2014 statement, the Veteran reported that his hearing aids caused problems with his cell phone and did not work with his mandatory work headset. He reported that if he took his hearing aids out in order to use his phone or his headset, he could not hear anything. While this evidence presents a sympathetic catch-22—the Veteran could either wear his hearing aids and not use his phone and headset, or take them out and not be able to hear—both sides of the dilemma comprise nothing other than the inability to hear or understand speech or to hear sounds in various contexts. In this regard, the August 2016 VA medical opinion noted that if hands-free communication while driving were required, an amplified headset or wireless Bluetooth device linking the Veteran’s hearing aids with his cell phone would be necessary. Taking the Veteran’s statement as true, it may have been that such an accomodation was indeed necessary. However, the accomodation would have been for functional impairment adequately contemplated by the rating schedule, i.e. inability to hear. Finally, several pieces of evidence attest to what might be characterized as psycho-social effects of the Veteran’s bilateral hearing loss. This evidence comprises two lay statements, by the Veteran and the appellant, the former of which was specifically mentioned by the Court in its May 2018 Order (the latter was submitted after the Court’s Order). In the Veteran’s June 2014 statement, he reported that his hearing loss and tinnitus caused him to become aggravated and angry on a daily basis, and that he did not like to interact with other people due to “their requests of repeating myself.” In her October 2018 statement, the Appellant further reported that the Veteran had been constantly frustrated by asking people to repeat things, and that his hearing loss had caused him to isolate, socializing only with his family, who were used to speaking loudly for him. She stated that the Veteran “was often irritable and upset because of his inability to hear, and at times got really discouraged and disgusted by it.” The Veteran’s personal and interpersonal struggles with his hearing loss are eminently sympathetic. As reflected by his 50 percent rating from January 11, 2011 on, his medical record evinces severe hearing loss for many years before his passing. It is not to be doubted that this caused him significant distress. Nevertheless, symptoms such as irritability, depressed mood, and social isolation are specifically contemplated under the general rating formula for mental disorders (38 C.F.R. § 4.130), which is to say that they constitute neither impairment specifically contemplated in the rating schedule for hearing loss nor simply impairment due to hearing loss but not contemplated therein; rather, the rating schedule specifically contemplates these symptoms as due primarily to a separate and distinct disorder. Moreover, like the Veteran’s problems using his cell phone and headset, this impairment ultimately reduces to the inability to hear. As the Court noted in King, the rating schedule compensates veterans for the “impairment in earning capacity” that results from their disabilities. That is to say, the rating schedule compensates veterans not for their disabilities per se, but for the effects of their disabilities, for their functional impairment. Therefore, when the schedule provides particular compensation for a particular level of disability, it does so in light of the contemplated effect of that level of disability: the contemplated functional impairment. Here, the statements of the Veteran and the Appellant attest to impairment which, by their account, is caused exclusively by the Veteran’s inability to hear or understand speech or to hear sounds in various contexts. In other words, these statements attest to impairment specifically contemplated in the rating schedule, as interpreted by the Court in Doucette. Reconciling the Director’s Opinion that Occupational Activity Was “Difficult but Not Impossible” In the parties’ joint motion for remand, granted by the Court in its May 2018 Order, they specifically noted that the Board erred in its July 2017 decision by failing to reconcile its finding that the Veteran’s earning capacity had not been impaired by his hearing loss—because there was no evidence that the Veteran missed any work, had any hospitalizations, or that his employment had been shortened due to his hearing loss—with the Compensation Director’s opinion that the Veteran’s hearing loss made occupational activity “difficult but not impossible.” The Board first notes that the dispositive question is not whether the Veteran’s earning capacity had been impaired by his hearing loss—his schedular compensation for hearing loss implies VA’s finding that it had been—but whether as a result of a disability picture so exceptional or unusual as to render the schedular rating criteria inadequate, the Veteran experienced other factors such as “marked interference” with employment. Impairment of earning capacity is obviously relevant to this inquiry, but it is not equivalent to it. In any case, the reconciliation of the Board’s finding with that of the Compensation Director is contained in the definitions of the words “difficult” and “impossible.” What is difficult but not impossible is possible. Therefore, the Compensation Director’s opinion implies, among other things, that occupational activity was possible for the Veteran, and the Board found that he had in fact performed it, full time, without any absences, until he stopped working for reasons unrelated to his hearing loss. See October 2018 Appellant Brief (stating that the Veteran retired because he was diagnosed with lung cancer). 3. Functional Impairment Related to Chronic Serous Otitis Media In an October 2018 brief submitted to the Board, the appellant argued that an extraschedular rating is warranted for the Veteran’s diagnosis of chronic serous otitis media, which is not contemplated under the rating criteria for hearing loss. Otitis media is contemplated in the rating schedule as a separate and distinct disability from hearing loss, under Diagnostic Codes 6200 and 6201. Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Here, the evidence indicates that the Veteran had a diagnosis of chronic serous otitis media throughout the claim period, which had its onset during his active duty service. See VA Treatment Records dated January 2011, December 2014; August 1976 Service Treatment Record. Accordingly, service connection for chronic serous otitis media is warranted. 4. Entitlement to a TDIU The Court of Appeals for Veterans’ Claims (CAVC) has held that a total disability rating based on individual unemployability (TDIU) is part of a claim for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the appellant explicitly raised the issue in an October 2018 claim and accompanying brief. A TDIU 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 either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). As the appellant’s claim for a TDIU comprises part of the appeal for an increased rating for bilateral hearing loss and not an independent claim, the Board’s jurisdiction is limited to consideration of the Veteran’s hearing loss alone. However, 38 C.F.R. § 4.16(b) provides that for purposes of a TDIU, disabilities affecting a single bodily system will be considered as one disability. Therefore, the Board must also consider the Veteran’s service-connected tinnitus. The Veteran’s combined rating for bilateral hearing loss and tinnitus is 60 percent, which, counted as a single disability, meets the schedular criteria since January 11, 2011. The remaining issue is whether the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). There is no evidence that the Veteran’s bilateral hearing loss and tinnitus prevented him from securing and following a substantially gainful occupation at any time throughout the claim period. First and foremost, the Veteran was employed full time, or more than full time, throughout most of the claim period. See October 2018 Application for TDIU (reporting employment at around fifty-five hours per week from 2011 to February 2017). When the Veteran stopped working in February 2017, he left work not because of his hearing loss and tinnitus, but because he received a diagnosis of lung cancer. See October 2018 Appellant Brief; October 2018 Appellant Statement. Additionally, in the October 2018 application for TDIU, the appellant did not report that the Veteran lost any time from illness before he left work in February 2017. The appellant contends that the Veteran’s hearing loss and tinnitus contributed to his decision to retire, and that because of the impairment those disabilities caused, he should have retired long before he did. See October 2018 Appellant Brief. She contends that the Veteran was often forced to take out his hearing aids while driving due to the pain they caused him, which produced a safety hazard to himself and others, since without hearing aids he could not hear other vehicles, sirens, and emergency signals. In response, the Board reiterates its findings made in Sections 1 and 2, above: 1) prior to January 11, 2011, there is no evidence at all of interference with the Veteran’s employment, other than his statement that hearing loss presented a safety concern for his job as a truck driver, and 2) From January 11, 2011 on, taking as true the Veteran’s statements that his hearing aids caused problems with his cell phone and did not work with his mandatory headset, he may have required an amplified headset or wireless Bluetooth device linking his hearing aids with his cell phone or headset, per the August 2016 VA medical opinion. As discussed in Section 1, above, the safety concern identified by the Veteran as caused by his hearing loss is contemplated and accounted for by the Federal Regulations cited in the August 2016 VA medical opinion. According to the August 2016 opinion, the Veteran qualified under the regulations to drive safely, so long as he wore hearing aids and kept a spare battery. Finally, taking as true the appellant’s report that the Veteran often had to remove his hearing aids due to pain, there is nevertheless no evidence that this ever prevented him from maintaining his full-time position as a truck driver. The appellant’s own application for TDIU indicates that the Veteran worked fifty-five hours a week throughout the claim period until he left work in February 2017. Therefore, the Board cannot find that the Veteran was unable to secure or maintain a substantially gainful occupation at any point throughout the claim period. Accordingly, a TDIU is not warranted. Entitlement to a TDIU on an Extraschedular Basis Although the Veteran’s disabilities do not meet the required minimum ratings before January 11, 2011, “[i]t is the established policy of the Department of Veterans Affairs 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.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. However, as discussed above, there is no evidence at any point throughout the claim period that the Veteran was unable to secure or maintain a substantially gainful occupation. Therefore, a TDIU is not warranted on an extraschedular basis prior to January 11, 2011. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel