Citation Nr: 18154479 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 12-10 821 DATE: November 30, 2018 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s hearing loss is manifested by Level I hearing in the left ear. 2. The most competent, credible, and probative evidence of record demonstrates that the Veteran’s service-connected disabilities, alone, are not of such nature or severity as to prevent him from securing or following any substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to November 1994. This matter is on appeal from (1) a January 2010 rating decision, which granted entitlement to service connection for left ear hearing loss with a noncompensable disability rating, effective June 12, 2009, and (2) a June 2017 Supplement Statement of the Case (SSOC) that denied entitlement to TDIU. The Veteran disagrees with the initial rating assigned for his left ear hearing loss and the denial of entitlement to TDIU. The Board notes that, in a September 2018 rating decision, the Agency of Original Jurisdiction granted service connection for the Veteran’s right ear hearing loss. As that issue on appeal was granted, it is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). 1. Entitlement to an initial compensable rating for left ear hearing loss is denied. By rating action of January 28, 2010, the Regional Office granted service connection for bilateral hearing loss and assigned an initial noncompensable evaluation, under Diagnostic Code 6100 for hearing loss, effective June 12, 2009. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. In January 2010, the Veteran was afforded a VA audio examination. Results from the audiogram reflect that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 35 LEFT 25 25 20 30 55 Puretone threshold averages were 23.75 decibels for the right ear and 32.5 decibels for the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear, using Maryland CNC tests. The examiner found the Veteran to have mild to severe sensorineural hearing loss from 3000 to 8000 Hz in the left ear. The examiner reported the impact of the hearing loss on occupational activities as poor social interactions and hearing difficulty. Based on results of the testing, with the utilization of Table VI, the Veteran has Level I hearing impairment in both the right ear and the left ear. Under Table VII, a designation of Level I hearing in the right ear and Level I hearing in the left ear yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. In March 2017, the Veteran was afforded a VA audio examination. Puretone thresholds for the examination are not available as the examiner reported that the test results were not valid for rating purposes. The examiner provided the following explanation as to why the results were invalid: “Objective findings from oto-acoustic emission testing revealed patient’s subjective responses do not represent true hearing thresholds.” The examiner also reported problems with the speech discrimination score for both the right and left ear. She explained that the “use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate.” The examiner reported that it was probable that the claimant has an organic hearing loss; however, valid thresholds could not be determined from the evaluation. The examiner recommended that the Veteran follow up for a repeat evaluation. In April 2018, the Veteran was afforded a VA audio examination. Results from the audiogram reflect that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 30 45 LEFT 25 25 20 30 55 Puretone threshold averages were 30 decibels for the right ear and 32.5 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear, using Maryland CNC tests. The examiner found the Veteran to have sensorineural hearing loss in the left ears. The Veteran reported difficulty with understanding in conversations. Based on the results of the testing, with the utilization of Table VI, the Veteran has Level I hearing impairment in both the right ear and left ear. Under Table VII, a designation of Level I hearing in the right ear and Level I hearing in the left ear yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. As described above, the audiological findings from the January 2010 and April 2018 audiograms, when analyzed under Table VII, equate to a noncompensable disability rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. At no time during the appeal period has the Veteran’s hearing loss disability been shown to rise to the level of symptomatology required to support a higher rating. The evaluation for hearing loss is based on objective testing. Thus, the objective VA examination report does not support an assignment of a disability rating in excess of what the Regional Office has already awarded — a noncompensable rating for the entirety of the appeal period. As such, a noncompensable disability rating is warranted. At a June 2015 Board hearing, the Veteran testified that he believed his hearing loss had worsened since his 2011 VA examination. The Board notes that, prior to the Board hearing, the Veteran was actually tested in January 2010, not 2011. The Veteran also testified that, due to his hearing loss, he needs to use the speaker on his phone and listen to his television at a high volume. The Board has considered the Veteran’s contentions regarding his claim for a higher rating. Although the Board does not doubt the sincerity of the Veteran’s belief regarding the severity of his hearing loss, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board in no way discounts the difficulties the Veteran experiences as a result of his bilateral hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion and must make a finding on the rating schedule based on the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. Entitlement to TDIU is denied. In March 2010, the Veteran filed his initial claim for individual unemployability. In April 2010 and March 2012, the Regional Office sent the Veteran correspondence requesting that he complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to secure information necessary to properly adjudicate his claim for a TDIU. A June 2017 SSOC denied the Veteran’s claim for entitlement to TDIU. The SSOC explained that, on April 19, 2010 and March 6, 2012, the Regional Office wrote the Veteran and asked him to submit a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The SSOC also reported that a completed VA Form 21-8940, a form required to further consider the Veteran’s claim, had not been received. The Board notes that an October 2018 rating decision granted entitlement to a temporary total rating because the Veteran underwent lumbar surgery for his service-connected lumbar spine degenerative disc disease that required convalescence. A temporary evaluation of 100 percent was assigned for the Veteran’s lumbar spine degenerative disc disease, effective September 12, 2018, the day of the surgery. The rating is scheduled to return to a permanent 10 percent disability rating on April 1, 2019. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, prior to September 12, 2018 (excluding the period when a temporary total rating was in effect pursuant to 38 C.F.R. § 4.30), the Veteran did not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). Prior to September 12, 2018, the Veteran was service-connected for degenerative disc disease of the lumbar spine with right lower extremity radiculopathy rated at 20 percent, tinnitus rated at 10 percent, lumbar spine with left lower extremity radiculopathy rated at 10 percent, degenerative disc disease of the lumbar spine rated at 10 percent, bilateral hearing loss rated at 0 percent for a combined evaluation of 40 percent from September 26, 2015. Therefore, prior to September 12, 2018, the Veteran did not have either a single disability rating of 60 percent or a combined rating of at least 70 percent with at least one disability rated at 40 percent so as to meet the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). As the Veteran does not meet the applicable percentage standards, the Board must consider whether the Veteran is nevertheless unable to secure or follow a substantially gainful occupation as a result of his service connected PTSD. See 38 C.F.R. § 4.16(b). An August 2014 orthopedics note reported that the Veteran had a history of bilateral shoulder pain due to a bench press accident that happened approximately 8 months ago. Prior to the accident, the Veteran had been maintaining a relatively high level of activity as he participated in a heavy weight lifting league, competitive basketball, and football, and worked as a personal trainer. However, since January 2014, he had been unable to participate in any of those activities due to his severe lateral shoulder pain. At a June 2015 Board hearing, the Veteran testified that he currently worked full time as a personal trainer and part-time with the Parks and Recreation with Miami-Dade County. An October 2018 medical record reported that the Veteran had a lumbar fusion on September 12, 2018 requiring convalescence through April 1, 2019. As previously described, the Veteran failed to submit a completed VA Form 21-8940, a form required to obtain critical information needed to properly adjudicate his claim for a TDIU. (Continued on the next page)   Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities do not render him unable to secure or follow all forms of substantially gainful employment consistent with his educational background and occupational experience, and entitlement to a TDIU is denied. In this regard, the evidence reflects that, prior to the Veteran’s lumbar fusion surgery on September 12, 2018, the Veteran was employed and had been employed for most of the period on appeal. While the Board does not doubt that the Veteran’s service-connected disabilities had some impact on his employability, there is simply no evidence of record making it factually ascertainable that the Veteran’s service-connected disabilities alone rendered him unemployable at any time during the relevant appeal period. Accordingly, the preponderance of the evidence is against the assignment of a TDIU and the claim is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel