Citation Nr: 1808947 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 10-33 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial compensable rating for bilateral sensorineural hearing loss. 2. Entitlement to a total disability evaluation based on individual unemployability as a result of service-connected disabilities (TDIU), prior to May 27, 2009. ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1970. The current matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This case was originally before the Board in July 2016, when the Veteran's claims were remanded for further development. An additional claim for entitlement to an increased rating for his service-connected tinnitus was denied at that time. An October 2016 supplemental statement of the case was issued and the case is once again before the Board. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's bilateral sensorineural hearing loss is manifested by hearing impairment corresponding to no higher than an auditory acuity of Level I. 2. Prior to May 27, 2009, although the Veteran was unemployed, his service-connected disabilities (bilateral tinnitus and bilateral sensorineural hearing loss) were not of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.85, Diagnostic Code (DC) 6100 (2017). 2. Prior to May 27, 2009, the criteria for the assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The record reflects that the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice in connection with his claims. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has referenced no such records, and all pertinent records have been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, Social Security Administration (SSA) records, and written assertions. Moreover, documents in the claims file written in Spanish have been translated to English. Next, the Veteran was afforded VA examinations for his hearing loss in January 2009, March 2011, and October 2016. The duty to assist does not require that a claim be remanded solely because of the passage of time as an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's hearing loss since the most recent VA examination. The Veteran has not made such allegations. The Board finds the examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran (including eliciting a history from him), and provided the information necessary to evaluate his disability under the applicable rating criteria. A Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As already noted, the matter was most recently remanded in July 2016. These actions were accomplished, and there has been substantial compliance with the July 2016 remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Veteran is service-connected for his bilateral sensorineural hearing loss. He alleges that a compensable rating is warranted for his bilateral hearing disability. 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 (2017). The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (2017). 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 underwent a January 2009 audiological examination. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 60 60 65 LEFT 15 25 20 50 50 His puretone average for the right ear was 52.5 dB; his puretone average for the left ear was 36.25 dB. 38 C.F.R. § 4.85(d) (2017). Speech recognition was 98 percent in the right ear and 100 percent in the left ear. Applying the findings of the examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for bilateral hearing loss have not been met. Considering that the Veteran's right ear manifested an average puretone threshold of 52.5 dB, with a 98 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss was Level I impairment. With respect to his left ear, considering his left ear manifested an average puretone threshold of 36.25 dB, with an 100 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level I impairment. Applying these results to Table VII, a noncompensable evaluation is assigned. The Veteran underwent another audiological examination in March 2011. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 60 65 60 LEFT 20 30 30 60 60 His puretone average for the right ear was 53.75 dB; his puretone average for the left ear was 45 dB. 38 C.F.R. § 4.85(d) (2017). Speech recognition was 96 percent in the right ear and 100 percent in the left ear. Applying the findings of the examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for bilateral hearing loss have not been met. Considering that the Veteran's right ear manifested an average puretone threshold of 53.75 dB, with a 96 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss was Level I impairment. With respect to his left ear, considering his left ear manifested an average puretone threshold of 45 dB, with a 100 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level I impairment. Applying these results to Table VII, a noncompensable evaluation is assigned. The Veteran underwent another audiological examination in October 2016. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 60 60 60 LEFT 20 25 30 55 55 His puretone average for the right ear was 53 dB; his puretone average for the left ear was 41 dB. 38 C.F.R. § 4.85(d) (2017). Speech recognition was 100 percent in the right ear and left ear. Applying the findings of the examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for bilateral hearing loss have not been met. Considering that the Veteran's right ear manifested an average puretone threshold of 53 dB, with a 100 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss was Level I impairment. With respect to his left ear, considering his left ear manifested an average puretone threshold of 41 dB, with a 100 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level I impairment. Applying these results to Table VII, a noncompensable evaluation is assigned. VA and private treatment records have been reviewed. A July 2008 VA audiological treatment record, November 2008 private audiological treatment record, and September 2013 VA audiological treatment record have been considered but it is not clear from the reports whether the Maryland CNC controlled speech discrimination test was used, as required by 38 C.F.R. § 4.85(a) (2017). Treatment records confirm that the Veteran is fitted with hearing aids. The Board is limited in evaluating hearing loss to the mechanical application of the rating schedule under the specified testing methods. For example, any impact of the hearing loss on the Veteran's daily life cannot be accounted for outside the rating tables of 38 C.F.R. § 4.85. The noncompensable evaluation assigned for his bilateral sensorineural hearing loss accurately reflects his disability picture as contemplated under the VA rating criteria throughout the rating period on appeal. Throughout the period on appeal, the manifestations of the service-connected bilateral sensorineural hearing loss disability did not equate with, or more nearly approximate, the criteria for a compensable rating. The Board finds that a preponderance of the evidence is against a finding that the service-connected bilateral sensorineural hearing loss disability warranted a compensable rating during the period on appeal. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The January 2009 VA examiner noted that the greatest difficulty caused by the Veteran's hearing loss is with understanding in one to one and in group conversations. The March 2011 VA examiner noted that the Veteran's hearing loss resulted in decreased concentration, poor social interactions, difficulty following instructions and hearing difficulty. Additionally, the October 2016 VA examiner noted that the Veteran's hearing loss results in difficulty understanding conversations. The Board finds these comments are sufficient to comply with the applicable VA policies. Martinak v. Nicholson, 21 Vet. App. 447 (2007) (VA audiologist's indication in report that Veteran's hearing loss affected his ability to sleep was sufficient to comply with requirements of VA's own internal guidance documents that VA audiologists describe the effects of a hearing disability on occupational functioning and daily activities). Additionally, the Board has considered lay statements from the Veteran attesting to the impact of his hearing loss. The Board finds that the functional effects of the Veteran's bilateral hearing loss disability are adequately addressed by the record. The Board is sympathetic to the Veteran's position that a higher rating is warranted for his service-connected bilateral sensorineural hearing loss. However, while the Veteran may have problems with his hearing, the audiometric examination results, as compared to the rating criteria, do not warrant a compensable rating during the period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable schedular rating for bilateral sensorineural hearing loss. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. TDIU, Prior to May 27, 2009 VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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. See 38 C.F.R. § 4.16(a). The Veteran claims he is unemployable due to his service-connected disabilities. Therefore, he believes that a TDIU is warranted. The Board notes that the Veteran is in receipt of a 100 percent schedular rating for his service-connected posttraumatic stress disorder (PTSD) as of May 27, 2009. As such, entitlement to a TDIU since May 27, 2009 is rendered moot, at least of that date. The Board recognizes that it is not categorically true that assignment of a total schedular rating always renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). In the Bradley case, the Court held that a TDIU could be warranted in addition to a schedular 100 percent evaluation, where the TDIU could be granted for a disability other than the disability for which a 100 percent rating was in effect, explaining that under such circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Unlike the situation in Bradley, however, the Veteran's other service-connected disabilities of bilateral tinnitus (rated as 10 percent disabling) and bilateral sensorineural hearing loss (rated as non compensable), since May 27, 2009, do not alone warrant assignment of a TDIU. As such, entitlement to a TDIU since May 27, 2009 is rendered moot. However, the Board will address whether a TDIU is warranted, prior to May 27, 2009. Prior to May 27, 2009, the Veteran is service connected for tinnitus, evaluated as 10 percent disabling from September 30, 2008; and bilateral sensorineural hearing loss, evaluated as noncompensable from September 30, 2008. Together, prior to May 27, 2009, the Veteran had a combined evaluation of 10 percent. Therefore, the Veteran did not meet the schedular criteria for a TDIU rating. See 38 C.F.R. § 4.16(a). Nonetheless, the Board must consider whether the evidence, prior to May 27, 2009, warranted referral to the appropriate VA officials for entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran reported in his VA Form 21-8940 that he was unable to work because of his service-connected bilateral tinnitus and bilateral sensorineural hearing loss. See February 2009 claim. He reported that he became too disabled to work in February 2009. The Veteran is in receipt of Social Security Disability benefits for anxiety related disorders (not related to his service-connected tinnitus or hearing loss). Notably, the evidence of record does not establish that the Veteran was unemployable, prior to May 27, 2009, due only to his service-connected bilateral tinnitus and/or bilateral sensorineural hearing loss. The Board finds that the evidence of record, prior to May 27, 2009 indicates that the Veteran would not have been prevented from maintaining any substantially gainful employment due to his service connected bilateral hearing loss or bilateral tinnitus, standing alone. While the Board does not doubt that the Veteran's service-connected disabilities, prior to May 27, 2009, had some effect on his employability, as evidenced by his 10 percent rating (if they did not, there would be no basis for the current evaluations), the weight of the evidence does not support his contention that his service-connected disabilities, prior to May 27, 2009, were of such severity so as to preclude his participation in any form of substantially gainful employment. In fact, most evidence provides evidence against this claim. The Board believes that the symptomatology associated with the service-connected disabilities, prior to May 27, 2009, was appropriately compensated by the currently assigned 10 percent combined rating. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1 (2017). Indeed, 38 C.F.R. § 4.1 specifically states: '[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability.' See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). While the Veteran is competent to discuss the symptoms of his service-connected disabilities and his perception of their effect on his unemployment, his assertions are outweighed by the evidence of record. The Board reiterates that the Veteran did not meet the percentage requirements for a TDIU on a schedular basis, prior to May 27, 2009. Moreover, as there is no evidence to support a finding that his disabilities are outside the norm, the Board finds that referral for extraschedular consideration is not warranted. Van Hoose, 4 Vet. App. 361. Accordingly, a basis for a grant of a TDIU, prior to May 27, 2009, on a schedular or extraschedular basis has not been presented. The Board finds that the evidence does not demonstrate that the Veteran is unemployable due to his service-connected disabilities, prior to May 27, 2009. As such, the preponderance of the evidence is against the Veteran, and the claim for a TDIU, prior to May 27, 2009, must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial compensable rating for bilateral sensorineural hearing loss is denied. Entitlement to a TDIU, prior to May 27, 2009, is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs