Citation Nr: 18157984 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-44 921 DATE: December 14, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected hearing loss prior to August 25, 2016 is denied. Entitlement to an initial disability rating in excess of 30 percent for service-connected hearing loss from August 26, 2016 forward is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to August 25, 2016, the Veteran’s bilateral hearing loss was manifested by hearing impairment corresponding to no worse than an auditory acuity of Level X hearing in the right ear and Level II hearing in the left ear. 2. From August 26, 2016 forward, the Veteran’s bilateral hearing loss is manifested by hearing impairment corresponding to no worse than an auditory acuity of Level XI hearing in the right ear and Level IV hearing in the left ear. 3. The Veteran does not have a disability rated at 60 percent or more or a combined rating of 70 percent or more; the evidence does not indicate that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for bilateral hearing loss prior to August 25, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.85 Diagnostic Code 6100, 4.86. 2. The criteria for a disability rating in excess of 30 percent for bilateral hearing loss, from August 26, 2016 forward have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.85 Diagnostic Code 6100, 4.86. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to October 1966 in the United States Air Force. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 1. and 2. Entitlement to an increased disability rating for service-connected hearing loss Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined using a combination of the percentage of speech discrimination and the pure tone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) pure tone thresholds of 55 decibels or greater at 1000, 2000, 3000, and 4000 Hertz, or b) a pure tone threshold of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a). Once an acuity level is established for each ear, Table VII (Percentage Evaluations for Hearing Impairment) is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. The Veteran has claimed that his service-connected bilateral hearing loss is more severe than his existing ratings and warrants increased disability ratings. The ratings on appeal are 10 percent prior to August 26, 2016, and 30 percent from August 26, 2016 forward, under Diagnostic Code 6100. At the Veteran’s September 2015 VA audiology examination, pure tone thresholds and speech discrimination scores were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 80 105 100 105 97.5 40 LEFT 20 45 55 65 46.25 92 As shown above, the Veteran has an average puretone threshold loss of 98 decibels in his right ear and 46 decibels in his left. His speech recognition scores were 40 percent in his right ear and 92 in his left. With regard to functional impact, the Veteran noted that he has a difficult time hearing in noisy environments, and that he does not hear his wife or other women well. Under Table VI, these results correspond to Level X impairment in the right ear and Level I in the right. Under Table VII, the intersection of these points results in a 10 percent disability rating. Because the Veteran’s right ear shows an exceptional pattern of hearing loss, his hearing may also be evaluated under Table VIA. Under that table, his right ear corresponds with Level X, and his left ear with Level II. Again, the intersection of these points under Table VII results in a 10 percent disability rating. The Veteran underwent a second VA examination in November 2016, at which time, puretone thresholds and speech discrimination scores were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 75 105 105 105 97.5 20 LEFT 35 55 65 75 57.5 76 As shown above, the Veteran had an average puretone threshold loss of 98 decibels in the right ear and of 58 decibels in the left. Speech recognition scores on the Maryland CNC test were 20 percent in the right ear and 76 percent in the left ear. Regarding the effect of the Veteran’s hearing loss on his ability to function in an occupational environment, the examiner opined that the Veteran would likely have a great deal of difficulty communicating without the use of amplification, if the speaker is at a distance, or in the presence of other noise. These findings correspond to Level XI impairment in the right ear and Level IV impairment in the left ear, which equates to a schedular rating of 30 percent. 38 C.F.R. § 4.85, Tables VI and VII. These findings once again show an exceptional pattern of hearing loss. Utilizing Table VIA, the Veteran’s right ear corresponds to Level X and his left corresponds to Level IV. This again results in a 30 percent rating under Table VII. The Veteran and his spouse submitted statements attesting to the impact of his hearing loss. Their statements regarding the functional effects of the Veteran’s bilateral hearing loss disability are addressed by the ratings assigned. The VA audiology examinations represent the most probative evidence for evaluating the Veteran’s hearing loss rating claim as they include the requisite testing to apply to the rating criteria. Based on the audiology examination findings, the criteria for a 20 percent rating were met prior to August 25, 2016. As of the November 2016 examination, there was a factually ascertainable increase in severity to the thirty percent rating currently assigned since that date. A rating in excess of thirty percent is not warranted from August 26, 2016 forward. 3. Entitlement to TDIU 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 the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. §4.16 (b). The Board does not have the authority to assign an extra-schedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is “that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356 (1991). It also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) (“marginal employment shall not be considered substantially gainful employment”). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service connected disabilities but the functional impairment caused solely by his service-connected disabilities. The critical question when evaluating whether TDIU is warranted is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to warrant entitlement to TDIU. A high combined rating in itself is a recognition that physical and mental impairment makes it difficult to obtain and maintain employment. VanHoose v. Brown, 4 Vet. App. 361, 363 (1993). The degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. See 38 C.F.R. §§ 4.1, 4.15. At the outset, the Veteran does not meet the schedular requirements for a TDIU. The Veteran claims he is unable to obtain and maintain employment consistent with his education and experience due to his hearing loss and tinnitus. The Veteran’s service-connected disabilities are bilateral hearing loss, with a current rating of 30 percent, and tinnitus, with a rating of 10 percent. Neither of the ratings exceeds 40 percent for the Veteran’s two service-connected disabilities of bilateral hearing loss and tinnitus; their combined rating is also less than 70 percent. Thus, TDIU cannot be granted on a schedular basis. 38 C.F.R. § 4.16(a). The evidence presented regarding the collective impact of the Veteran’s service-connected disabilities also does not warrant entitlement to TDIU on an extra-schedular basis. The examiner from the Veteran’s September 2016 VA examination concluded that the Veteran would likely have a great deal of difficulty communicating without the use of amplification, if the speaker is at a distance, or in the presence of other noise. While these symptoms and difficulty may warrant the disability rating assigned, there is no showing that these symptoms and their impact would preclude the Veteran from securing or following a substantially gainful occupation. The Veteran and his wife have both stated that they believe that the Veteran would have difficulty finding part-time employment because of his bilateral hearing loss; neither, however, has stated that the Veteran has sought employment and been rejected or that he has lost a job as a result of his hearing loss. Further, questions remain regarding the Veteran’s work history, education, and occupational training. The Veteran was provided a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) in October 2016; to date, the Veteran has not returned the form or provided the equivalent of the information that form seeks. Based on the foregoing, the preponderance of the evidence is against a finding that Veteran’s service-connected disabilities, standing alone, preclude him from obtaining or maintaining substantially gainful employment consistent with his education and experience. A TDIU is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Ahsan, Associate Counsel