Citation Nr: 18158584 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 12-32 680 DATE: December 18, 2018 ORDER Entitlement to an extraschedular disability rating for bilateral hearing loss prior to November 7, 2014, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 1, 2009, is denied.   FINDINGS OF FACT 1. The disability picture of the Veteran’s service-connected bilateral hearing loss prior to November 7, 2014, is not so exceptional as to make the schedular evaluation inadequate. 2. The Veteran’s service-connected disabilities did not prevent him from securing or following a substantially gainful occupation prior to September 1, 2009. CONCLUSIONS OF LAW 1. The criteria for an extraschedular evaluation for bilateral hearing loss prior to November 7, 2014, have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.321(b)(1). 2. The criteria for a TDIU prior to September 1, 2009, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1958 to November 1968. This claim was previously before the Board in February 2016, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board’s remand would be required, not strict compliance). The matter was referred to the Director, Compensation Service, who issued a decision in February 2017 finding that extraschedular entitlement to TDIU due to hearing loss and tinnitus is not warranted. 1. Entitlement to an evaluation in excess of 60 percent prior to November 7, 2014, and in excess of 50 percent prior to February 11, 2013, on an extraschedular basis A. Applicable Law Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. The ratings are averages, however, so that it follows that an assigned rating may not completely account for each individual veteran’s circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the schedular rating is found to be inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. B. Discussion In this case, the question for the Board is whether an extraschedular rating is warranted for bilateral hearing loss. The Board finds that an extraschedular is not warranted as the Veteran’s disability is not manifested by an exceptional disability picture such that the available schedular evaluations for the disability are inadequate or other related factors, such as marked interference with employment or frequent periods of hospitalization. The Veteran reported at a January 2009 VA examination that his hearing loss affected interpersonal communication. A VA examiner opined in September 2009 that the Veteran’s hearing loss and tinnitus did not preclude the Veteran from being employed. It was noted that an environment with reduced background noise may have been beneficial. Individuals who know the Veteran wrote in July 2010 statements that he had difficulty hearing conversation. The Veteran’s last employer wrote in February 2010 that his employment ended in August 2006 when the business was sold. The Veteran wrote in January 2011 that he avoided noisy places and one on one conversations with the majority of people he knew. A VA examiner opined in February 2011 that the Veteran’s hearing loss and tinnitus would not preclude him from being gainfully employed, but that an environment with a reduced amount of ambient noise could be beneficial. At a February 2013 VA examination, the Veteran reported that he could not hear anything without his hearing aids. Sounds were distorted, and it was difficult to communicate with others. He needed a quiet environment to hear anything. His tinnitus was bothersome and kept him up at night. At April 2013 private treatment the Veteran said that he was unable to hear certain tones and words, which had been going on for years, and female voices were worse. It was noted at April 2013 VA treatment that the Veteran had difficulty hearing despite the use of hearing aids. The Veteran had another VA examination in November 2013 at which he said that when he last worked in 2006, it was a quiet setting. He needed to sit in the middle of the room in meetings in order to hear, and had difficulty on conference calls. The examiner felt that an environment with minimal ambient noise where the Veteran could utilize face to face communication would be beneficial. The Veteran’s hearing loss would not prevent him from securing and maintaining gainful employment. Tinnitus was bothersome and kept the Veteran awake at night. At the October 2014 Board hearing the Veteran testified that he had problems with hearing while in his last job, and his employer kept him on when he had difficulty because he was involved in the founding of the company. His past employment required being on the manufacturing floor, where there is background noise. In October 2014, several individuals who know the Veteran submitted statements regarding his hearing loss, including that he had difficulty hearing in settings such as a bible study group and at his old job. His former employer wrote that the Veteran had difficulty participating in meetings and discussing technical issues in the electronic laboratory work space. Instructions needed to be written for the Veteran, or he had to speak to people outside of the laboratory environment. The Veteran had a VA examination in August 2016. The examiner opined that prior to September 1, 2009, audiological testing and the good speech discrimination scores show that there would not be limits to employment due to hearing loss and tinnitus. The Board finds that the symptom associated with the Veteran’s bilateral hearing loss prior November 7, 2014, difficulty hearing, is contemplated by the rating criteria and the assigned ratings, and the medical evidence fails to show anything unique or unusual about this disability that would render the schedular criteria inadequate. The rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure. Thus, when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). In fact, difficulty understanding conversations, particularly in noisy or crowded circumstances, absent other factors, is squarely within the type of symptoms and functional effects contemplated and compensated by VA’s schedular rating criteria. Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). There is a class of functional effects existing outside the rating schedule. King v. Shulkin, 29 Vet. App. 174, 180 (2017) (explaining that this part of the Court’s decision in Doucette was not dicta). A non-exhaustive list that could make up that class of functional effects includes dizziness, vertigo, ear pain, recurrent loss of balance, or social isolation due to difficulties communicating. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017); King, 29 Vet. App. at 180. Here, the evidence does not present any such functional effects. At a May 2018 VA Audiology consultation, he denied otalgia (ear pain). Earlier, in March 2010, he complained of some right ear pain, but this was temporary and limited to an ill-fitting hearing aid. Earlier, in November 2009, he denied otalgia, dizziness, vertigo, and ear infections. Even if the rating criteria were inadequate, there has not been frequent hospitalization. Regarding marked interference with employment, the record shows that the Veteran’s job as an engineer was affected by his hearing loss, and that changes regarding his work routine were made accordingly. The record does not show that the Veteran missed work due to hearing loss. The Veteran’s last employer wrote in February 2010 that the Veteran was employed to August 2006 as a test technician. He worked 40 hours a week, did not miss any time from work due to disability, and his employment ended because the company was sold. As the available schedular criteria for hearing loss are adequate, an extraschedular rating is not warranted. 2. Entitlement to a TDIU prior to September 1, 2009 A. Applicable Law A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities, alone, must be found to be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and his previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. B. Discussion In this case, the Veteran contends that he was unemployable prior to September 1, 2009, as a result of his service-connected hearing loss and tinnitus. For the reasons described below, the Board concludes that a TDIU is not warranted. Prior to September 1, 2009, service connection was in effect for bilateral hearing loss, rated 50 percent, and tinnitus, rated 10 percent. The combined rating was 60 percent. See 38 C.F.R. § 4.25. As these disabilities affect a single body system, the ear, they are considered as one disability. See 38 C.F.R. § 4.16(a). Thus, the Veteran met the schedular requirements of 38 C.F.R. § 4.16(a). Nonetheless, the evidence does not establish that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In his October 2009 VA Form 21-8940, the Veteran wrote that he last worked full-time and became too disabled to work in March 2006, which is also when his disability first affected full-time employment. The disability preventing him from securing or following any substantial gainful employment was “severe hearing loss.” He also identified having a high school education with additional education in electronics school during service. The Veteran also wrote that he worked as an engineer and technician from May 1992 to October 2006, and he had been unable communicate effectively in a work environment due to severe hearing loss, even with the use of hearing aids. The record does not show that the Veteran was unable to maintain employment solely due to bilateral hearing loss and tinnitus prior to September 1, 2009, which were the service-connected disabilities he identified as affecting his employment. As discussed above, a VA examiner opined in September 2009 that the Veteran’s hearing loss and tinnitus did not preclude employment. In August 2016, a VA examiner opined that prior to September 1, 2009, audiological testing and the good speech discrimination scores show that there were not be limits to employment due to hearing loss and tinnitus. While the record shows that there were limitations to employment, all substantially gainful employment was not precluded. The September 2009 examiner felt that an environment with reduced background noise could have been beneficial, and the Veteran had difficulty working in his former job as an engineer due to the noisy environment. The Veteran’s last employer wrote in February 2010 that he was employed to August 2006 as a test technician. He worked 40 hours a week, did not miss any time from work due to disability, and his employment ended because the company was sold. The same employer’s October 2014 letter does not state why the Veteran left in August 2006, but shows that accommodations were made for the Veteran’s hearing loss. Regardless of whether the Veteran could have continued in his former position from August 2006 to September 2009, the record does not support that his bilateral hearing loss and tinnitus prevented any substantial gainful employment. Therefore, he was not entitled to a TDIU prior to September 9, 2015. See 38 C.F.R. § 4.16. The Veteran is competent to state what effects he believes his service-connected disabilities had on employment. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, the record does not show that he was precluded from being able to perform all substantial gainful employment as a result of his service-connected disabilities prior to September 1, 2009. In summary, the Board finds that the most probative evidence of record demonstrates that the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation prior to September 1, 2009. Accordingly, the Board concludes that the criteria for a TDIU prior to that date have not been met. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel