Citation Nr: 1827490	
Decision Date: 05/01/18    Archive Date: 05/14/18

DOCKET NO.  09-45 626	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a left knee disability.

2.  Entitlement to an initial evaluation in excess of 10 percent for right knee strain.

3.  Entitlement to a higher initial rating for bilateral hearing loss, rated as noncompensably disabling prior to September 6, 2016, and as 40 percent disabling since that date.

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

K. Neilson, Counsel
INTRODUCTION

The Veteran served on active duty from June 1978 to June 1981.

These matters comes before the Board of Veterans' Appeals (Board) on appeal from a from a June 2009 and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In the June 2009 decision, the RO, inter alia, granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective from April 22, 2009.  The Veteran disagreed with the assigned rating and perfected an appeal to the Board.  

In June 2013 and March 2016 actions, the Board remanded, for further development, the issue of entitlement to an initial compensable evaluation for hearing loss.  In its March 2016 action, the Board also determined that the issue of entitlement to TDIU had been raised in the context of the Veteran's then-current appeal, see Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded that matter as well.

In a September 2016 rating decision, the RO increased the Veteran's bilateral hearing loss rating to 40 percent, effective September 6, 2016.  This created a staged rating, as indicated on the title page.  A supplemental SOC (SSOC) was issued in February 2018 and the matters of entitlement to higher initial ratings for hearing loss and to TDIU were subsequently returned to the Board.  In this regard, the Board points out that because less than the maximum available benefit for a schedular rating was awarded for hearing loss and because the increase was not awarded for the entirety of the claims period, the claim remains properly before the Board.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993).

In the November 2015 rating decision, the RO granted service connection for right knee strain and assigned a 10 percent disability rating, effective from June 30, 2015; the RO also denied service connection for a left knee disability.  In October 2016, the Veteran filed a notice of disagreement, disagreeing with the denial of service connection for a left knee disability and with the initial evaluation assigned in connection with his award of service connection for right knee strain.  To date, the RO has neither acknowledged receipt of the Veteran's NOD nor issued a statement of the cause (SOC).

Consequently, as discussed in more detail below, the Board finds that a remand for a SOC as to the claims for service connection for a left knee disability and for a higher initial rating for right knee strain is required.  See 38 C.F.R. § 19.9(c) (2017), codifying Manlincon v. West, 12 Vet. App. 238 (1999) (in cases before the Board in which a claimant has timely filed a NOD with a determination of the agency of original jurisdiction (AOJ) on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC). 

Finally in this regard, the Board notes that in a February 2018 rating action, the RO denied service connection for insomnia and sleep apnea.  The Veteran filed an NOD in April 2018.  Although issuance of an SOC is required in response to a notice of disagreement, here, the evidence reflects that the AOJ is in the process of developing the claims in order to do so; as the claims are still in the development stage, they are not in appellate status and will not be considered by the Board at this time.

FINDINGS OF FACT

1.  Prior to July 28, 2016, the evidence does not establish a level of hearing loss sufficient to warrant a compensable rating at any point. 
2.  As of July 28, 2016, the evidence establishes a level of hearing loss sufficient to warrant a rating of 40 percent, but no higher.

3.  The competent and credible evidence of record demonstrates that the Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation.
CONCLUSIONS OF LAW

1.  Prior to July 28, 2016, the criteria for a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).

2.  As of July 28, 2016, the criteria for a disability rating of 40 percent for bilateral hearing loss, but no higher, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).

3.  The criteria for a TDIU are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

Neither the Veteran nor his representative has raised any specific issues with the duty to notify.  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"). 

Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue herein decided has been obtained in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c).  The Veteran was provided VA examinations of his bilateral hearing loss.  These examinations and their associated reports were adequate because, as indicated in the discussion below, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim.  The examination reports were based on examination of the Veteran by the examiner with appropriate expertise who thoroughly reviewed the claims file.  Therefore, the Board finds that the evidence is adequate to resolve this case.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007).

II.  Disability Rating

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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).

A.  Hearing Loss

Here, the Veteran's service-connected hearing loss has been evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100.  Under DC 6100, hearing loss is evaluated in accordance with the findings obtained on audiometric examination.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (providing that disability ratings for service-connected hearing impairments are determined through mechanical application of the disability rating schedule to the results of audiometric evaluations).  The evaluations assigned for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second).  The degrees of disability for bilateral hearing loss are reflected in eleven auditory acuity levels in the rating schedule, designated from Level I for essentially normal acuity through Level XI for profound deafness.  See 38 C.F.R. § 4.85, DC 6100 (2017).  As set forth in the rating schedule, Tables VI, VIa, and VII are used to calculate the disability evaluation to be assigned.  See id.

VA regulations further provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral, and each ear is to be evaluated separately.  38 C.F.R. § 4.86(a) (2017).  When the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral.  38 C.F.R. § 4.86(b).

Relevant to the issue on appeal, results of audiometric testing conducted as part of a June 2009 VA contract audiology examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
10
20
55
70
LEFT
10
25
70
70

Puretone averages were 38.75 decibels for the right ear and 43.75 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 96 percent, bilaterally, using Maryland CNC tests.  

Application of the above audiogram results to Table VI reveals Level I hearing acuity in the right ear and Level I hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Level I hearing acuity bilaterally results in a noncompensable disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  Thus, the June 2009 audiological examination report does not support the assignment of a compensable disability evaluation.  Id.

Also of record is the report of a private audiological evaluation done in September 2009.  Results of audiometric testing conducted as part of that examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
15
30
70
70
LEFT
15
30
75
70

Puretone averages were 46.25 decibels for the right ear and 47.5 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 96 percent, bilaterally, although it was not specifically indicated that Maryland CNC tests were utilized.  

Assuming valid speech recognition scores, application of the above audiogram results to Table VI reveals Level I hearing acuity in the right ear and Level I hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Level I hearing acuity bilaterally results in a noncompensable disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  Thus, the September 2009 private audiological examination report does not support the assignment of a compensable disability evaluation.  Id.

The Veteran was afforded another VA fee-based audiology examination in September 2013 and results of audiometric testing conducted as part of that examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
25
40
70
75
LEFT
25
40
75
75

Puretone averages were 52.5 decibels in the right ear and 53.75 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent, bilaterally, using Maryland CNC tests.  

Application of the above audiogram results to Table VI reveals Level II hearing acuity in the right ear and Level II hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Level II hearing acuity bilaterally results in a noncompensable disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  Thus, the September 2013 audiological examination report does not support the assignment of a compensable disability evaluation.  Id.

In July 2016, the Veteran submitted for another private audiological evaluation.  Results of audiometric testing conducted as part of that examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
60
60
105
100
LEFT
55
60
95
100

Puretone averages were 81.25 decibels for the right ear and 77.5 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 72 percent in the left ear, although it was not specifically indicated that Maryland CNC tests were utilized.  

Assuming valid speech recognition scores, application of the above audiogram results, when rounded, to Table VI reveals Level VI hearing acuity in the right ear and Level VI hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Level VI hearing acuity bilaterally results in a 30 percent disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  However, because the puretone threshold at each specified frequency is 55 decibels of more, 38 C.F.R. § 4.86 is for application.  Applying the puretone threshold averages to Table VIa, the Veteran is shown to have Level VII hearing acuity bilaterally, which results in a 40 percent disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  Accordingly, the Veteran meets the criteria for a 40 percent disability rating as of July 28, 2016, the date of the private audiological examination.  In this regard, the Board notes that because the Veteran's puretone threshold recorded in July 2016 reflects an exceptional pattern of hearing impairment bilaterally, a Maryland CNC test is not required.  Thus, contrary to the RO's determination, the results of the July 2016 private audiological examination are valid for evaluation purposes when applied to Table VIa.  See 38 C.F.R. § 4.86.

The Veteran was then afforded a VA audiology examination in September 2016 and results of audiometric testing conducted as part of that examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
60
80
90
LEFT
35
45
80
90

Puretone averages were 66.25 decibels in the right ear and 62.5 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 44 percent in the left ear, using Maryland CNC tests.  

Application of the above audiogram results to Table VI reveals Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Level II hearing acuity bilaterally results in a 40 disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  Thus, the September 2016 VA audiological examination report also supports the assignment of a 40 disability evaluation, but no higher.  Id.

Accordingly, upon mechanical application of the valid audiological test results to Tables VII, the Board finds that prior to July 28, 2016, the evidence fails to support the assignment of a compensable rating for the Veteran's bilateral hearing loss.  In so finding, the Board points out that it has also reviewed the Veteran's VA treatment records and although the Veteran complained of worsening or diminished hearing acuity, his VA treatment records do not contain data sufficient to support the assignment of a compensable rating, as they do not reveal results of audiometric testing.  However, as discussed above, the private audiological evaluation conducted in July 2016 does support the assignment of a 40 percent disability rating as of July 28, 2016.  There is no evidence of record dated since that time that supports a rating in excess of 40 percent.  Notably, there is no other audiometric data dated during the relevant time period, nor does the Veteran assert that his hearing was otherwise evaluated during the relevant time period.  

The Board also acknowledges that the Veteran has expressed his belief that the severity of his hearing loss warrants a higher rating.  The Veteran is competent to report the symptoms of his hearing disability and the Board has no legitimate basis to challenge the credibility of his contentions.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  However, ratings for hearing loss are determined by a mechanical application of the VA rating schedule to the numeric designations assigned based on audiometric test results.  Lendenmann, supra.  The Veteran's statements do not show that he meets the specific pure tone thresholds and/or speech discrimination percentages required for higher ratings at any time period during the appeal. 

The Board has also considered whether referral for extra-schedular consideration is warranted.  In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made.  38 C.F.R. § 3.321(b)(1) (2017); see Thun v. Peake, 22 Vet. App. 111 (2008).  In Doucette v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) noted that extraschedular analysis is not required in all cases.  Either the Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances.  28 Vet. App. 366, 371-72 (2017).  Requiring an extraschedular analysis in all cases runs contrary to the purpose of extraschedular ratings, which is to recognize exceptional or unusual circumstance.  Id.  Moreover, symptoms such as those described by the Veteran, to include, difficulty in distinguishing sounds in a crowded environment, understanding conversational speech, difficulty hearing when there is background noise, and hearing at a distance, are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for rating hearing loss.  Id.  In the instant case, the Veteran's described symptoms are manifestations of difficulty hearing or understanding speech, which are contemplated by the schedular criteria for rating hearing loss.  The Veteran's disability picture is thus contemplated by the rating schedule and a remand for consideration of an extraschedular rating is not warranted.  See Thun, 22 Vet. App. at 115.
B.  TDIU

A total disability rating 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 service-connected disability.  See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017).  A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more).  38 C.F.R. § 4.16(a).  

In the instant case, the Veteran fails to meet threshold rating requirements of 38 C.F.R. § 4.16(a), as his combined rating has been less than 70 percent and he had no singular disability evaluated as at least 60 percent disabling.  See 38 C.F.R. § 4.25.  Accordingly, there is no basis upon which to award a schedular TDIU.  

Regardless, however, of whether the percentage requirements of 38 C.F.R. § 4.16(a) are met, entitlement to TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b) (providing that "all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled").

Here, the evidence shows that the Veteran is working.  Although the Veteran has contended that he is unable to apply for certain jobs with his employer, the evidence fails to establish that the Veteran is incapable of securing and following a substantially gainful occupation by reason of service-connected disabilities.  Notably, the Veteran has failed to file a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) despite several requests to do so.  Further, the Veteran has submitted multiple statements from several co-workers, to include a statement dated in March 2017 from a co-worker who reported having worked with the Veteran for the past seven years.  The Veteran also reported during the September 2016 VA audiology examination that he was then employed, and in a statement received in July 2017, he similarly reported that he was then-currently employed.  Although the Veteran has asserted that his diminished hearing acuity interferes with his ability to obtain higher paying jobs, there is no evidence which supports a finding that this employment qualifies as less than gainful.  As there is no evidence demonstrating that the Veteran's currently service-connected disabilities preclude him from securing or following a substantially gainful occupation, referral of the matter for consideration of entitlement to TDIU on an extraschedular basis is not warranted.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49   (1990).


ORDER

Entitlement to a compensable rating for bilateral hearing loss prior to July 28, 2016, is denied.  

Entitlement to a rating of 40 percent rating, but no higher, for bilateral hearing loss is granted, effective July 28, 2016, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a TDIU is denied.


REMAND

As discussed in the Introduction above, the Veteran, in October 2016, filed a timely NOD as to the RO's denial of service connection for a left knee disability and assignment of an initial rating of 10 percent for right knee strain, which matters were the subject of a November 2015 rating decision.  The RO/AOJ must issue an appropriate SOC.  See 38 C.F.R. § 19.9 (c) (2017), codifying Manlincon v. West, 12 Vet. App. 238   (1999).

Accordingly, the claims for service connection for a left knee disability and for an initial rating in excess of 10 percent for right knee strain are REMANDED for the following action:

After conducting all development deemed appropriate, issue an SOC addressing the issues of service connection for a left knee disability and for an initial rating in excess of 10 percent for right knee strain.  The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302 (b).  If, and only if, the appeal is timely perfected, the issues should be returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs