Citation Nr: 1807133	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  10-12 854	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial compensable rating for service-connected bilateral hearing loss.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

R. Brunot, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from May 1977 to May 1980.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In December 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), and a transcript is included in the. 

This case was remanded by the Board in March 2012, October 2014, and June 2016.  VA has a duty to substantially comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  In March 2012, the case was remanded for the Veteran to have a new VA examination, and in accordance with Stegall, the Veteran received a VA examination in October 2012.  Id.  In October 2014 and June 2016 the case was remanded to obtain all of the Veteran's outstanding VA records, and in compliance with the directives, all the Veteran's VA treatment records have been added to the file.  Additionally, in June 2016, the Board remanded the case so the Veteran could receive an additional VA examination, and the Veteran received a VA examination in June 2017.  Accordingly, the Board concludes VA complied with the remand directives. 


FINDINGS OF FACT

1.  The Veteran suffers from no more than Level I hearing loss in both ears. 

2.  The preponderance of the evidence reflects that the Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. 


CONCLUSIONS OF LAW

1. The criteria for an initial 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 (2017).

2.  The criteria for a total rating based on individual unemployability due to the Veteran's service-connected disabilities have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duty to notify was satisfied by a letter sent in October 2008.  38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).  The evidence of record includes the Veteran's Service Treatment Records (STRs), his VA treatment records, his Social Security Administration Records (SSAs) and the reports of his VA examinations.  The Veteran has not referred to any additional, unobtained, relevant, available evidence.  Consequently, all relevant, identified, and available evidence has been obtained.    

The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter.  38 U.S.C. § 5103A (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Furthermore, once VA undertakes the effort to provide an examination, it must provide an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Veteran received VA examinations in February 2009, October 2012, and June 2017.  The Board finds these examinations were adequate as the examiners reviewed the claims file, examined the Veteran, considered the Veteran's lay statements, and provided detailed findings.  Accordingly, the Board's duty to assist has been fulfilled.

II.  Increased Rating for Bilateral Hearing Loss 

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 (2017).  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 (2017).  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in October 2008.  Fenderson v. West, 12 Vet. App. 119 (1999).  

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 determine if the evidence is credible.  Third, the Board must weigh the probative value of evidence in light of the entirety of the record.

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 (2017).  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 (2017).  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 (2017).  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 underwent a VA audiology examination in October 2008.  His puretone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
15
20
30
65
70
RIGHT
10
15
35
65
70

The average puretone threshold was 46 for both ears.  His Maryland CNC word recognition was 92 percent in the left ear and was 96 percent in the right ear.  

The Veteran then had a VA examination in October 2012.  His puretone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
20
20
35
65
70
RIGHT
20
20
45
60
70

The average puretone threshold was 48 in the left ear and was 49 in his right ear.  His Maryland CNC word recognition was 94 percent in both ears.

The Veteran's puretone thresholds, in decibels, for his June 2017VA examination were as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
30
30
45
65
70
RIGHT
30
30
50
65
70

The average puretone threshold was 30 in the left ear and was 53 in the right ear.  His Maryland CNC word recognition was 92 percent for both ears.  

At each examination, the audiologist described the functional effects of the Veteran's hearing loss on his daily activities.  38 C.F.R. § 4.10 (2017); see also Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  Specifically, the examiners noted the Veteran had trouble hearing in places where there was a lot of background noise.  Additionally, the June 2017 VA examiner noted the Veteran's wife and son constantly told the Veteran he needed to turn his hearing aid up so he could hear them. 

The Veteran echoed his problems with hearing at his December 2011 Board Hearing.  The Veteran stated that if he was not looking at a person and did not have his hearing aids in he could not understand what the person was saying.  The Veteran also noted the problems he had hearing people in areas where there was background noise.  The Veteran stated that his hearing problems angered him because he had problems conversing with people. 

The Veteran has no more than Level I hearing loss in both his hears.  He does not have an exceptional pattern of hearing loss as set forth in 38 C.F.R. § 4.86(b) (2017).  In this case, applying Level I hearing loss for both ears, the criteria for a compensable rating are not met

Lay persons are competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011).  However, in this case, such an opinion falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The Veteran is competent to report symptoms such as difficulty hearing conversations with background noise.  The Veteran is also competent to report that his hearing has worsened over the years.  Nonetheless, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percent evaluation over VA's tables for rating hearing loss disabilities.  Such an opinion requires medical expertise, such as training in evaluating hearing impairment, which the Veteran does not possess.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Charles v. Principi, 16 Vet. App. 370 (2002).   

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The functional impact that the Veteran describes, such as difficulty hearing with background noise, are contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).  The Veteran's main complaint is reduced hearing acuity and clarity, which is contemplated in the rating assigned.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

Based upon the results from the all VA examinations discussed above, the Board finds that the criteria for a compensable disability evaluation have not been met.  38 C.F.R. §§ 4.85, 4.86 (2017).  While the Board is sympathetic to the Veteran's assertions that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results.  Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's bilateral hearing loss does not meet the criteria for a compensable rating under the applicable Diagnostic Codes.  38 C.F.R. § 4.7.  Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3.  

III.  TDIU

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 is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose, 4 Vet. App. at 363.

When a Veteran's disability ratings did not meet the minimum schedular criteria for a TDIU, the Board must still consider whether he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities.  38 C.F.R. § 4.16(b).  In these situations the claim must be submitted to the Chief Benefits Director or Director of the Compensation Service for extraschedular consideration.  

The Veteran's combined rating was 10 percent.  His bilateral hearing loss and right metacarpal fracture have both been rated as noncompensable.  His tinnitus has been rated at 10 percent.  Thus, the schedular requirements for TDIU were not met prior as his combined rating was less than 70 percent.  

The Board considers the combined effect of his service connected disabilities.  At his February 2009 VA examination for his right metacarpal fracture, the VA examiner found that his disability had no significant effect on his occupation and some mild effect on his daily activities.  The VA examiner did note that the Veteran stated that he experienced intermittent cramping which caused him to drop tools.  Nevertheless, the Veteran told the VA examiner he stopped working because there was no work available in his field due to the economy.

The evidence of record also includes the Veteran's SSA records which document the Veteran's problem with hearing and using his hands.  However, the Veteran's SSA records also considered the impact of the Veteran's non-service-connected disabilities on his employability.  Ultimately, the SSA found while the Veteran would be unable to perform any of his past type work the Veteran had the functional capacity to perform other types of job.

The Veteran's October 2012 VA examination explored the effects of his service-connected disabilities on his ability to work.  The VA examiner concluded his right metacarpal fractured caused no functional impairment and thus would have no impact on physical or sedentary employment.  The VA examiner noted the Veteran had no swelling in his hands, limitation of movement, strength and sensation were preserved, no loss of function in his hands.

In the Veteran's multiple VA examinations for his bilateral hearing loss and tinnitus the VA examiner's noted the Veteran's disabilities impacted his employment.  Specifically, the Veteran noted that when he was working he would have to meet with his superiors multiple times because he did not always hear what they said. 

In considering the combined effects of the Veteran's service-connected disabilities the Board concludes they do not render the Veteran unemployable.  The Veteran worked as a tile maker prior to his retirement.  The Board finds as noted by the Veteran, his retirement was not due to his service-connected disabilities but due to the economy.  While the Board submits the Veteran's right finger disability would impact his ability to work, the Board finds that disability would not render him unemployable.  The October 2012 VA examiner noted that his disability would not cause loss of function of his hands and would have no impact on the Veteran's ability to engage in physical or sedentary employment.  The Board acknowledges SSA found that the Veteran may not be able to return to his old job, but that assessment included consideration of his non-service-connected disabilities.  The Board, however, is precluded from considering impairments 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).  

Furthermore, while the Veteran noted his bilateral hearing loss and tinnitus impacted his ability to hear his superintendents, the Board notes the Veteran was not using his hearing aids at that time.  Additionally, there is no indication in the record that his hearing problems rendered him unemployable.  Thus, the Board finds the preponderance of the evidence provides the combination of the Veteran's service-connected disabilities did not render the Veteran unemployable.  Therefore, referral to the Director of the Compensation Service for extraschedular consideration for TDIU is not warranted.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

ORDER

Entitlement to an initial compensable rating for bilateral hearing loss is denied.

Entitlement to TDIU is denied. 



____________________________________________
ROBERT C. SCHARNBERGER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs