Citation Nr: 18155463 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 18-32 791 DATE: December 4, 2018 ORDER A rating higher than 50 percent for bilateral hearing loss is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has manifested no worse than Level VII hearing acuity in the right ear and Level IX hearing acuity in the left ear. 2. The Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 50 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1945 to May 1946. The Veteran requests a total disability rating for his service-connected bilateral hearing loss disability on the basis that his disability renders him unable to work. As the issue of entitlement to a TDIU has been raised by the evidence of record, the Board has recharacterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In his substantive appeal to the Board, the Veteran requested and was scheduled for a hearing on October 26, 2018. However, he did not report for the scheduled hearing and has not requested that his hearing be rescheduled. As such, the request for a hearing has been withdrawn. 38 C.F.R. § 20.700 (a) (2017). 1. Entitlement to a rating higher than 50 percent for bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran claims that his service-connected bilateral hearing loss is more disabling than reflected by the current assigned rating. He claims that he is entitled to a total disability rating because he is unable to hear in group settings. He is currently assigned a 50 percent disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). As background, in an August 2012 rating decision, the agency of original jurisdiction (AOJ) granted service connection for bilateral hearing loss and assigned a 10 percent rating, effective December 7, 2011. The Veteran did not initiate an appeal and the rating decision became final. In February 2017, the Veteran filed an application for an increased rating for hearing loss. In a February 2017 rating decision, the AOJ assigned a 50 percent rating, effective February 3, 2017. Additional evidence was associated with the claims file, and in an October 2017 rating decision, the AOJ continued the currently assigned 50 percent disability rating. In a November 2017 notice of disagreement (NOD) the Veteran requested a total disability rating for his hearing loss disability. The matter is now before the Board. Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. In describing the evidence, the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. Here, the discussion is limited to 38 C.F.R. § 4.85 as the evidence does not show an exceptional pattern of hearing impairment. In February 2017 the Veteran was afforded a VA examination. The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz as 25, 60, 80, and 95 dB respectively; for the left ear, auditory thresholds in the same frequencies were recorded as 40, 65, 85, and 105 dB respectively. Average loss in the right ear was listed as 65, and average loss in the left ear was 74. Speech recognition ability was 52 percent in the right ear and 44 percent in the left ear. The results of this examination correspond to Level VII hearing in the right ear and Level IX hearing in the left ear. 38 C.F.R. § 4.85 (b). When these values are applied to Table VII, a 50 percent disability rating is assigned. 38 C.F.R. § 4.85. As for functional impact, the Veteran described trouble hearing his wife speak when there is surrounding noise and on the telephone. VA medical records document ongoing adjustments for hearing aids. In June 2017 he received a hearing aid adjustment after complaints of an echo. In August and September 2017 the Veteran misplaced his left hearing aid and received replacements. The Veteran was afforded another VA examination in September 2017. The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz as 30, 55, 80, and 90 dB respectively; for the left ear, auditory thresholds in the same frequencies were recorded as 45, 60, 90, and 105 dB respectively. Average loss in the right ear was listed as 64, and average loss in the left ear was 75. Speech recognition ability was 54 percent in the right ear and 36 percent in the left ear. The results of this examination correspond to Level VII hearing in the right ear and Level IX hearing in the left ear. 38 C.F.R. § 4.85 (b). When these values are applied to Table VII, a 50 percent disability rating is assigned. 38 C.F.R. § 4.85. As for functional impact, on September 2017 examination, the Veteran reported that he was not actively seeking employment. He reported working in 2016 at a golf course, but that he had problems hearing cart noises and it became “risky.” He stated that his hearing loss affects his ability to secure a job “to a certain extent.” The examiner opined that the Veteran’s hearing loss did not impact ordinary conditions of daily life, including his ability to work. In his November 2017 substantive appeal to the Board, via Form 9, the Veteran contended that he is entitled to a total disability rating for his service-connected hearing loss disability because he is unable to hear in group settings. He recounted attending his high school reunion with 16 people and the inability to participate in conversation. He also has trouble having telephone conversations with female participants and persons with accents. Further, he often requests that his wife repeat conversations due to difficulty hearing. Based on the above, the Board concludes that an increased rating for the Veteran’s bilateral hearing loss disability is not warranted for any stage of his appeal. It is apparent that the assigned disability evaluation of 50 percent for the appeal period accurately and appropriately reflects his bilateral hearing loss disability under the provisions of 38 C.F.R. § 4.85. 2. Entitlement to a TDIU. The Veteran claims that he is unable to maintain a substantially gainful occupation due to his service-connected bilateral hearing loss disability. A “schedular” TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2017). The Veteran currently has two disabilities for which service connection has been established: bilateral hearing loss rated 50 percent disabling, and tinnitus rated 10 percent disabling. His combined evaluation is 60 percent from February 3, 2017. Thus, he does not meet the percentage requirements of 4.16(a). 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 totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16. 38 C.F.R. § 4.16(b). The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In determining the severity of impairment, 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, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Consideration shall be given in all claims to the nature of the employment and reason for termination. Id. As mentioned above, the Veteran submitted an August 2017 application for increased compensation based on unemployability due solely to his bilateral hearing loss disability. He has completed two years of college. He last worked from May 2016 to August 2016 at a golf course for 16 hours per week. The Veteran’s golf course employer submitted a September 2017 VA Form 21-4192. The Veteran worked as a golf course marshal restocking water supply. The employer noted that the Veteran’s employment was terminated because he could not perform physical job duties. The February 2017 examination report documents that the Veteran’s description of trouble hearing his wife speak when there is surrounding noise and on the phone. On September 2017 examination, the Veteran reported that he was not actively seeking employment. He reported working in 2016 at a golf course, but that he had problems hearing cart noises and it became “risky.” He stated that his hearing loss affects his ability to secure a job “to a certain extent.” The examiner opined that the Veteran’s hearing loss did not impact ordinary conditions of daily life, including ability to work. After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran’s service-connected bilateral hearing loss disability do not render him unable to secure and follow a substantially gainful occupation. He has not asserted that his other service-connected disability, tinnitus, renders him unemployable. Although he contends that he stopped working at the golf course due to his hearing loss disability, his employer clearly stated that he was terminated due to his inability to perform physical demands associated with the job, such as restocking water supply. Further, the Veteran’s contentions of functional limitations were considered by the September 2017 VA examiner who concluded that the Veteran’s hearing loss disability did not impact his ability to work. There are no contradictory medical opinions of record. However, the Court has held that the Board is the entity that determines whether a TDIU is warranted, not the experts. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014) (explaining that “applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner”). The Board’s decision rests on all relevant and probative evidence. (CONTINUED ON NEXT PAGE) As such, the evidence weighs against finding that the Veteran’s service-connected disabilities combined to cause unemployability. Entitlement to TDIU is thus not established. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel