Citation Nr: 20006446 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 15-37 425 DATE: January 27, 2020 ORDER A rating in excess of 80 percent for bilateral hearing loss disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The most probative evidence shows that at worst the Veteran has Level XI hearing in his right ear and Level IX hearing in his left ear. 2. Throughout the relevant period, the Veteran was unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 80 percent for bilateral hearing loss disability are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100. 2. The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1952 to January 1954 to include service in Korea during the Korean conflict era. In June 2019, he testified at a hearing before the undersigned Veterans Law Judge (VLJ), along with his two daughters. The VLJ clarified the issues on appeal; clarified the concept of increased ratings and TDIU; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. In August 2019, the Board remanded these two claims as well as the claim of service connection for an acquired psychiatric disability to the Agency of Original Jurisdiction (AOJ) for additional development. The RO thereafter granted service connection for Other Specified Trauma and Stress-Related disorder, claimed as acquired mental condition to include anxiety disorder (previously evaluated as posttraumatic stress disorder), and that claim is no longer on appeal. The hearing loss and TDIU claims have been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. A rating in excess of 80 percent for bilateral hearing loss disability is denied. The Veteran seeks a higher rating for this disability, rated 80 percent under Diagnostic Code (DC) 6100. 38 C.F.R. §§ 4.85, 4.87. Separate ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the rating criteria, the method for rating bilateral hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. While there is an alternative method of rating hearing loss, and it is for consideration for the right ear considering the most recent examination, it does not result in a higher rating for the Veteran and thus will not be used to rate his hearing loss. He has not demonstrated exceptional hearing loss in either ear at any other time, defined as when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. “[I]n addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, such is not part of the rating criteria. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran argues, as noted in the 2019 BVA remand, that his hearing loss has become more severe since a 2013 examination and warrants a higher rating. He has not asserted that the hearing loss has become more severe since the last audiogram was conducted by VA in September 2019. There are no treatment records reflecting reports or observations of worsening. The Veteran had a VA audiological evaluation in March 2013. Pure tone threshold averages, in decibels, were 70 in the right ear and 74 in the left ear, and Maryland CNC speech discrimination results were 34% in the right ear and 44% in the left year. The puretone testing results were noted to be valid for rating purposes and the use of the CNC test was noted appropriate for this Veteran. The diagnosis sensorineural hearing loss bilaterally was made. Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of I for both the right ear and the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in an 80 percent disability evaluation. The Veteran had another VA audiological evaluation in September 2019. Pure tone threshold averages, in decibels, were 71 in the right ear and 68 in the left ear, and Maryland CNC speech discrimination results were 36% in the right ear and 42% in the left year. The puretone testing results were noted to be valid for rating purposes and the use of the CNC test was noted appropriate for this Veteran. The diagnosis sensorineural hearing loss bilaterally was made. Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of IX for the right ear and left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 60 percent disability evaluation. Turning to the functional impact of the hearing loss, the VA examiner in 2019 observed that the Veteran’s hearing loss did impact ordinary conditions of daily life inasmuch as the Veteran reported he has to have things much louder (TV, voices), and ask for things to be repeated. In 2013, while the Veteran denied any effect on his ability to work due to his hearing loss, he also reported difficulty understanding general conversational speech and television. The Board acknowledges these reported functional limitations but finds that they are largely consistent with the current 80 percent rating. Based on a careful review of all the evidence, the Board finds that a higher rating for the Veteran’s service-connected bilateral hearing loss disability is not warranted. The criteria set out by VA are simply not met or approximated. The relatively vague argument in favor of a higher rating is outweighed by the documented VA examination and minimal treatment record, showing no objective support for a higher rating. Indeed, the audiology evaluations reflect medical professional’s testing results establishing hearing loss has remained not more than 80 percent disabling for VA purposes. The Board emphasizes that the September 2019 VA audiogram report chart reflects that, due to the degree of hearing loss present, the Veteran was unable to complete all three levels for the Performance Intensity Function testing, for either ear. As explained above, the Board has carefully considered the Veteran’s contention that a higher rating is warranted. It must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). A staged rating is not warranted. The overall record shows that the level of disability remained uniform, and within the range of a not more than 80 percent disabling, throughout the period of this claim. As the preponderance of the evidence is against the claim for increase, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. 2. TDIU is granted. The Veteran contends that his service-connected disabilities render him unemployable. The Board agrees. Initially, the Board notes that the Veteran meets the basic schedular rating criteria to be considered for TDIU set forth at 38 C.F.R. § 4.16 (a) inasmuch as he is rated 80 percent for hearing loss, 10 percent for tinnitus and 30 percent for anxiety with a combined 90 percent rating from January 17, 2013. The Veteran filed his TDIU claim in November 2013. He indicated that he stopped working at Eastman Kodak at that time due to hearing loss. At his hearing, the Veteran’s daughter explained that he left his job at Eastman Kodak because of the lack of hearing. She stated that most of the time if you are not facing him he cannot hear. If he is facing you, he reads lips, which he has done all of his daughters’ lives. They argued that the 2013 VA audiological examination showed poor word recognition scores consistent with this assertion. They argued that his conversational speech difficulty and diminished ability to follow instructions hampered in his employment. He could not understand what was being asked, and he could not respond to what was requested. As to his anxiety, he testified that he had frequent nightmares, night terrors, sleep trouble, panic and stress due to his experiences in Korea. As referenced at the hearing, the March 2013 VA audiological evaluation reflects the Veteran denied any effect on his ability to work due to his hearing loss or tinnitus. However, he does report that he has difficulty understanding general conversational speech as well as difficulty understanding the television at normal volume. The September 2019 VA audiological evaluation records the functional impact of hearing loss as needing things such as the television and voices to be much louder and asking to have things repeated. Tinnitus was noted as annoying. Significantly, the audiogram report chart reflects that, due to the degree of hearing loss present, the Veteran was unable to complete all three levels for the Performance Intensity Function testing, for either ear. As to anxiety, in addition to the aforementioned testimony, the September 2019 mental health DBQ reflects occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He was married in 1951 until his wife passed away in 2003. They have 3 children. He lives at an assisted living facility, which is near his sister. He spends most of his time at home and socializes with the neighbors. As to his occupation, it was noted that after discharge from service he worked for Kodak Eastman for over 50 years until the age 88. The Board finds the testimony as to the impact of hearing loss, tinnitus and anxiety on the Veteran’s work ability to be reasonable and not inconsistent with the documented record. It is the established policy of VA 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled 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, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and 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.   It is certainly not in dispute that this Veteran is educated and has previous work experience. However, upon consideration of the candid and seemingly unembellished testimony (particularly from his daughter), his impairments and the findings on the VA examinations. The fact that he worked for a long period of time does not establish that he can now return to substantially gainful employment. We are presented with a Veteran with severe hearing loss disability and a psychiatric disorder. The combined evaluation is 90 percent. The Board finds that he indeed meets the criteria for TDIU. Accordingly, TDIU is granted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.