Citation Nr: 21000484 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-47 430 DATE: January 5, 2021 ORDER An initial disability rating in excess of 20 percent for bilateral hearing loss prior to April 26, 2016, and in excess of 40 percent thereafter, is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to February 6, 2015 is denied. FINDINGS OF FACT 1. Prior to April 26, 2016, the Veteran’s auditory acuity, which was manifested by exceptional patterns of hearing loss, bilaterally, was no worse than level V in the right ear and no worse than level VI in the left ear. 2. From April 26, 2016, the Veteran’s auditory acuity, which was manifested by exceptional patterns of hearing loss, bilaterally, was no worse than level VII in both ears. 3. Prior to February 6, 2015, the Veteran’s sole service-connected disability of bilateral hearing loss did not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for bilateral hearing loss prior to April 26, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a disability rating in excess of 40 percent for bilateral hearing from April 26, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for entitlement to a TDIU prior to February 6, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served before July 1, 1946 in the organized military forces of the Government of the Commonwealth of the Philippines while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces or organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority of the Army of the United States. See November 2013 Memorandum (authorizing a one-time payment from the Filipino Veterans Equity Compensation fund for recognized service). Unfortunately, the Veteran died in April 2017. The appellant is his son, who has been substituted as the claimant for purposes of processing the claims to completion pursuant to 38 U.S.C. § 5121A. 38 C.F.R. § 3.1010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines. This appeal was previously before the Board in June 2017. The Board, being unaware of the Veteran’s death in April 2017, issued a remand for additional development of his claims for higher initial ratings for hearing loss and entitlement to a TDIU. After the appellant was properly substituted and the matters were readjudicated, the agency of original jurisdiction (AOD) awarded TDIU, effective April 26, 2016. See September 2020 rating decision. Then, in a later September 2020 rating decision, the AOJ assigned an effective date of February 6, 2015 for the award of TDIU. Because the TDIU claim is part and parcel of the Veteran’s underlying claim for higher ratings for his hearing loss, which has been pending since 2014, the issue of entitlement to TDIU prior to February 6, 2015 remains in appellate status. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018) (providing that the issue of entitlement to a TDIU is part of a claim for a higher rating when raised under Rice and remains pending unless the benefit is granted in full for the entire period on appeal). The Board also acknowledges that the Veteran, prior to his death, as well as the substituted appellant, advanced argument with respect to an earlier effective date for hearing loss. In reviewing their contentions, it has been alleged that the Veteran was entitled to a higher, 40 percent rating for his hearing loss dating back to 2014, when he was originally awarded service connection, and not just from the date of the VA examination report upon which the higher rating was predicated. See e.g., September 2018 appellant statement (arguing that “his claim earlier affectivity should have been awarded to him on the date approval of his claim and not the date his compensation increased”); January 2017 Veteran statement (“You alleged that 40% has granted only on April 26, 2016, and this is your basis of granting the effectivity of the said claim. My contention is this, Filing of Notice of Disagreement will retroact the effect from date of the prior approval.”); August 2016 Veteran statement (“I am requesting the payment of my compensation effective August 19, 2014.”). As the Board explained in its June 2017 remand, because the Veteran’s initial rating claim contemplates higher staged ratings throughout the entire appeal period, the contested issue on appeal is more appropriately characterized as one for a higher initial rating prior to April 26, 2016, and not as an earlier effective date issue. To the extent it is argued that the 40 percent rating for hearing loss should have been awarded earlier than April 26, 2016, that is a matter that is specifically encompassed by the issue of entitlement to an initial rating in excess of 20 percent for bilateral hearing loss prior to April 26, 2016. Significantly, during his lifetime, the Veteran did not register any disagreement with the effective date assigned for the award of service connection for bilateral hearing loss; rather, his disagreement with the initial 2014 rating decision focused solely on the rating assigned for his hearing loss. See September 2015 statement (“I am awaiting your decision for my appeal[] for higher rating of my hearing loss.”); February 2015 notice of disagreement (“My ear failure is severe[,] reasonably grant higher evaluation.”). As no disagreement with the effective date for the award of service connection was made within one year of the August 2014 rating decision that awarded service connection, any later claim disputing the effective date for the award of service connection for hearing loss would be untimely and precluded as a matter of law pursuant to Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). For these reasons, the Board will address the appeal, not as an earlier effective date claim, but as an initial, staged rating claim as explained above. See Fenderson v. West, 12 Vet. App. 119 (1999) (explaining that when an appellant appeals the initial rating assigned for a disability, the claim requires consideration of the entire time period involved and contemplation of staged ratings, where warranted). 1. Entitlement to an initial disability rating in excess of 20 percent for bilateral hearing loss prior to April 26, 2016, and in excess of 40 percent thereafter, is denied. The appellant asserts, in essence, that the Veteran, prior to his death, was entitled to higher ratings for his service-connected bilateral hearing loss. Prior to April 26, 2016, the Veteran’s bilateral hearing loss was assigned a 20 percent rating. From April 26, 2016, his hearing loss was assigned a 40 percent rating. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. Hearing loss normally is rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id.; see, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). Certain patterns of hearing loss are evaluated somewhat differently. The provisions relating to these alternative methodologies apply only when the examiner certifies that use of the speech discrimination test is not appropriate; when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. §§ 4.85(c), 4.86. In this case, the first exceptional pattern of hearing loss (having a puretone threshold above 55 decibels at the 1000, 2000, 3000, and 4000 Hertz levels) has been demonstrated throughout the entire period on appeal. Thus, the numerical designations set out at Table VIa apply to both of the rating periods under consideration. Additionally, VA examiners in both the July 2014 and April 2016 examination reports determined, “The use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate.” Because Table VI contemplates puretone thresholds and speech discrimination scores, the latter of which are unreliable here, Table VIa is more appropriately for application. With respect to the time period prior to April 26, 2016, just prior to the Veteran’s March 2014 claim for service connection for hearing loss, a February 2014 private audiology examination revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT +100 +100 +100 +110 LEFT +100 +110 +110 +110 These recorded levels result in a puretone threshold average of 102.5 decibels for the right ear and 107.5 for the left ear. Although the above private audiological testing from February 2014 did not contain Maryland CNC scores, an exceptional pattern of hearing loss was shown and, as noted above, VA examiners have found that the “use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate.” Thus, the Hertz decibel readings from this private non-Maryland CNC evaluation can be applied to Table VIa. See 38 C.F.R. § 4.85(c) (“Table VIa will be used with the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provision of § 4.86.”). Applying the results of the February 2014 private audiometric examination to Table VIa yields Level X in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level X for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 90 percent disability rating under Diagnostic Code 6100. During the appeal period and less than five months after the private audiogram, however, a July 2014 VA audiological examination noted puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 60 65 65 75 66 LEFT 65 65 75 85 72 Applying these results to Table VIa yields Level V in the right ear and level VI in the left ear. Applying the resulting bilateral level designations for the right ear and left ear to Table VII, in turn, equates to a 20 percent disability rating under Diagnostic Code 6100. In assessing the level of severity of the Veteran’s hearing loss before April 26, 2016, the Board must ascertain the probative value of two very different audiograms. With regard to the February 2014 private audiogram, the Board notes that it was conducted before the appellate period in question, as service connection was established from March 5, 2014 for the hearing loss disability. However, that does not mean that it can be disregarded. See Moore v. Shinseki, 555 F.3d 1369, 1375 (Fed. Cir. 2009) (concluding that unobtained Army hospital records were relevant to a claim for a higher disability evaluation even though the hospitalization occurred before the period on appeal, because those records “may well contain evidence that [the veteran] suffers from a serious, and perhaps chronic, psychiatric disorder”); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (rejecting the Board’s finding that evidence that a disability was diagnosed before the claimant filed a claim for service connection was categorically not relevant to the issue whether the veteran had a current disability). In reviewing the private audiological examination, the Board notes that the evaluation was accompanied by a medical certificate stating that the Veteran was examined from February 24, 2014, to February 27, 2014 because of “Ears: Intact Tympanic Membrane.” Furthermore, the diagnosis rendered as a result of the February 2014 private audiology examination was “Severe to profound sensorineural loss bil[ateral].” On the other hand, the July 2014 VA examination, which was conducted less than five months after the private February 2014 audiogram, noted puretone thresholds that were not as severe upon objective testing. When asked about the validity of the puretone test results, the VA examiner certified that the “[t]est results are valid for rating purposes.” After carefully looking at the evidence, the Board finds that the July 2014 VA examination is entitled to more probative weight regarding the Veteran’s hearing loss disability picture from March 5, 2015, to April 26, 2016. In so finding, the Board finds that it is significant that the February 2014 private examiner made no comment as to the chronicity or acuteness of those particular findings, and there is no later puretone data suggesting continued hearing loss at the level of severity demonstrated during the February 2014 audiogram. To the contrary, the Veteran’s hearing loss as examined by VA in August 2016 more closely matched the results of the July 2014 VA examination than the unique results identified in February 2014, which suggests to the Board that the private audiogram was an outlier. Thus, the hearing loss severity demonstrated on the single private audiogram from February 2014 is not found to be representative of the Veteran’s disability picture during the appeal period. Based on the foregoing, and considering the most probative evidence from the July 2014 VA audiological examination, the Board finds that his hearing loss disability warranted no more than a 20 percent rating under Table VIa, 38 C.F.R. § 4.85. With respect to the period on appeal from April 26, 2016 until the Veteran’s death in June 2017, an April 2016 VA audiological examination noted puretone thresholds, in decibels, as follows:  HERTZ 1000 2000 3000 4000 Avg RIGHT 65 75 85 90 79 LEFT 70 85 85 80 80 Applying these results to Table VIa yields Level VII in the right ear and level VII in the left ear. Applying the resulting bilateral level designations for the right ear and left ear to Table VII equates to a 40 percent disability rating under Diagnostic Code 6100. Thus, a rating in excess of 40 percent for the Veteran’s bilateral hearing loss is not warranted on and after April 26, 2016. In determining that a rating in excess of 20 percent prior to April 26, 2016, and in excess of 40 percent thereafter, is not warranted, the Board has not only considered the audiometric data, but also the Veteran’s lay statements, as well as the stated functional effects of his disability during his lifetime. In this regard, although the Veteran is competent to report difficulty with his hearing, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In addition, the July 2014 and April 2016 VA examiners both noted the functional effects described by the Veteran’s hearing loss disability pursuant to Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, the examiners both acknowledged that his hearing loss impacted ordinary conditions of daily life, including his ability to work. The July 2014 VA examiner stated, the “Vet[eran] can hardly hear anything. Relatives speak or shout near the Vet[eran]’s ear in order to communicate with him.”); the April 2016 VA examiner explained, the “Vet[eran] generally has problem understanding spoken words. He could barely respond during conversations because of his hearing problem.” Even considering the lay statements and functional effect of obvious difficulty understanding speech, higher ratings are not warranted during the time period in question. Namely, the rating criteria adequately contemplate auditory thresholds throughout the appeal period, and the functional impact that the Veteran described, therefore, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint throughout the appeal period was essentially reduced hearing acuity and clarity, which is what is contemplated by the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Finally, the Board has also considered potential entitlement to special monthly compensation based upon deafness under 38 C.F.R. § 3.350. However, under 38 C.F.R. § 3.350(c)(5), deafness is held to exist where VA examination “shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule.” As the criteria under 38 C.F.R. § 3.385 authorize even higher ratings for impaired hearing puretone thresholds above those demonstrated by the Veteran prior to his death, special monthly compensation is not warranted. In conclusion, the preponderance of evidence is against the claim of entitlement to an initial disability rating in excess of 20 percent for bilateral hearing loss before April 26, 2016, and in excess of 40 percent thereafter. 2. Entitlement to a TDIU prior to February 6, 2015 is denied. During his lifetime, the Veteran claimed that his service-connected hearing loss prevented him from securing or following any substantially gainful occupation. See August 2014 VA Form 21-8940 (listing hearing loss as the sole disability behind his application for TDIU). 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. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (CAVC or Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether his or her service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Further, in determining whether the Veteran is entitled to a TDIU rating, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. In this case, during the time period in question prior to February 6, 2015, the Veteran was only service-connected for bilateral hearing loss, rated as 20 percent disabling. Therefore, he did not meet the threshold minimum percentage criteria in 38 C.F.R. § 4.16(a) for consideration of TDIU on a schedular basis throughout the appeal period in question, and the provisions of 38 C.F.R. § 4.16(b) for extraschedular consideration apply. Under this regulation, “rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a).” The operative question before the Board, therefore, is whether the Veteran’s hearing loss during this time period prevented him from obtaining and maintaining a substantially gainful occupation. In this respect, pertinent to the Veteran’s work history and skills, the July 2014 VA audiological examiner noted his post-service employment as a farmer. The April 2015 VA psychological examiner also described more of the Veteran’s employment history, noting “Vet[eran] was described to be outgoing, friendly and good provider. . . . He used to be a farmer in their family’s own farm. Stopped working since 1980’s.” The Board finds it significant that the 2014 VA examiner reported that the Veteran’s hearing loss impacted ordinary conditions of daily life, including ability to work. However, the impact was specifically described as follows, “Vet[eran] can hardly hear anything. Relatives speak or shout near the Vet[eran]’s ear in order to communicate with him.”). Essentially, prior to February 6, 2015, the VA examiner identified only a limited impact related to his hearing loss, that of difficulty hearing almost anything except shouting. With only this functional limitation noted, and given the Veteran’s previous work history in farming and being a good provider prior to the 1980s, the evidence weighs against a finding that his sole service-connected disability of hearing loss rendered him unable to secure or follow a substantially gainful occupation prior to February 6, 2015, as is required by VA regulation in order to refer TDIU on an extraschedular basis to the Director of Compensation Service. 38 C.F.R. § 4.16. Based on review of the above evidence, the Board concludes that the Veteran’s sole service-connected disability of hearing loss did not prevent him from obtaining and maintaining a substantially gainful occupation for the appellate period prior to February 6, 2015. Therefore, a referral to the Director of Compensation Service is not warranted under 38 C.F.R. § 4.16(b), and the claim for TDIU prior to February 6, 2015, must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Gielow, Counsel 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.