Citation Nr: 18155506 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-51 108 DATE: December 4, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to a compensable disability rating for bilateral sensorineural hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his tinnitus began during active service; is otherwise related to an in-service injury, event, or disease; or began within one year of separation from service. 2. At worst, the Veteran had Level I hearing loss in both ears. 3. The Veteran’s service-connected disabilities other than post-traumatic stress disorder (PTSD) did not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309 (2018). 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2018). 3. The criteria for a TDIU due to service-connected disabilities other than PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an October 2018 Appellant’s Brief, the Veteran’s representative made a generic statement that the Veteran took exception to and preserved for appeal “all errors” including “failure to discharge the duty to assist.” However, no specific error was identified. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The nexus element may be satisfied by evidence a showing of continuity of symptomatology after service to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2018); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), including tinnitus are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101(3), 1112(a)(1) (2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2018). As a lay person the Veteran is competent to self-diagnose tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran received a VA examination in May 2015. He reported he experienced a cricket-like sound in his ears at a volume of 8 out of 10. The examiner considered his statements but noted the Veteran had denied having tinnitus on previous VA examinations. The examiner noted that tinnitus related to noise exposure is expected to be noted at the time of the exposure or shortly after. Consequently, the presence of tinnitus 46 years after service was outside that window. Thus, the examiner concluded the Veteran’s tinnitus was not due to his in-service noise exposure. The Veteran has provided lay assertions that his tinnitus began in service and persisted since that time. He is competent to make this observation. There is nothing in the record that renders his statements not credible. The Board acknowledges the Veteran denied having tinnitus on previous examinations. However, the Veteran’s lay statements show the Veteran did not consider the cricket-like sound he experienced to be a ringing in his hears. Accordingly, he denied having tinnitus because he did not experience a ringing sound. The Board finds the Veteran’s lay assertions and the VA examiner’s opinion are in relative equipoise. Thus, affording the Veteran the benefit of the doubt, service connection for tinnitus is granted based upon continuity of symptoms. See 38 C.F.R. § 3.102 (2018). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI (2018). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85 (2018). An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (2018). In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. The Veteran in this case does not have an exceptional pattern of hearing loss. On the authorized audiological evaluation in May 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 40 30 55 65 LEFT 40 55 45 30 45 The average pure tone threshold was 48 in the right ear and 44 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in both ears. The May 2015 VA examiner described the functional effects of the Veteran’s hearing loss on his daily activities. 38 C.F.R. § 4.10 (2018); see also Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran described having a hard time hearing, which was complicated by his tinnitus. The Veteran had problems with using his hearing aids because they amplified his tinnitus. Based on the May 2015 examination the Veteran had Level I hearing loss in both ears. On a private audiological evaluation in August 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 40 60 70 LEFT 50 60 50 35 55 The average pure tone threshold was 55 in the right ear and 50 in the left ear. The Board notes the August 2015 examination contains a speech audiometry; the Veteran received 100 percent for both ears. However, it is not clear the private examiner used the Maryland CNC test. Thus, the Board will not consider the Veteran’s speech recognition ability for this examination in evaluating his disability rating. The private examiner did not consider the functional impact of the Veteran’s hearing loss. Because the type of speech recognition test was not identified, the August 2015 audiogram is not usable for rating purposes. Regardless, were it assumed that the CNC test was used, it would not result in a higher rating. Based on the two VA examinations of record and applying Tables VI and VII, a noncompensable rating is warranted. 38 C.F.R. § 4.85. The Veteran’s competent, credible subjective report of difficulty hearing cannot be the basis for an increased rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. Based upon the results from examinations discussed above, the Veteran’s disability is best captured by a noncompensable rating. The Veteran credibly reported that he had difficulty hearing and problems with using his hearing aid. Nevertheless, the functional impact that the Veteran described is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). TDIU When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran filed a claim for TDIU in February 2014 and it was denied in April 2014. A TDIU claim has been raised by the record. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 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 reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363 For the entire appeal period, the Veteran’s combined rating was 100 percent. The Veteran’s PTSD is rated at 100 percent. However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). A TDIU satisfies the total (100 percent) rating requirement for establishing special monthly compensation (SMC) if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more. See Bradley v Peake, 22 Vet. App. 280 (2008). The Board notes the Veteran does not have a single disability rated at 60 percent. The Veteran’s service-connected disabilities that are not rated at 100 percent include the Veteran’s bilateral hearing loss and will also now include tinnitus. The Veteran’s bilateral hearing loss is rated as noncompensable and presumably his tinnitus will be rated at 10 percent. Thus, the combined ratings of these disabilities do not meet the required 60 percent threshold. Remand for referral to the Director of the Compensation Service is not warranted. There is no probative evidence that the Veteran’s hearing loss and tinnitus disabilities solely render the Veteran unemployable, nor has he so contended. The medical evidence attributes his unemployability is due solely to his PTSD symptoms. Thus, the Board finds the preponderance of the evidence is against the claim and TDIU is not warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel