Citation Nr: 21002236 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-18 565A DATE: January 13, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss prior to December 4, 2019 and in excess of 80 percent thereafter is denied. Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU) from December 4, 2019 is granted. REMANDED Entitlement to a TDIU on an extraschedular basis prior to December 4, 2019 is remanded. FINDINGS OF FACT 1. Prior to December 4, 2019, the Veteran’s bilateral hearing loss was manifested by no worse than Level VI hearing acuity for the right ear and Level IV hearing acuity for the left ear, with no exceptional pattern of hearing. 2. From December 4, 2019, the Veteran’s bilateral hearing loss was manifested by no worse than Level IX hearing acuity for the right ear and Level XI hearing acuity for the left ear, with no exceptional pattern of hearing. 3. From December 4, 2019, the Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to December 4, 2019, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. From December 4, 2019, the criteria for a disability rating in excess of 80 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 3. From December 4, 2019, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to July 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Board previously remanded the case in September 2019 for further development. The requested development as to the claim adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In a September 2020 rating decision, the RO increased the Veteran’s rating for bilateral hearing loss to 80 percent, effective December 4, 2019. As the grant of an 80 percent disability rating, effective December 4, 2019, did not constitute a full grant of the benefits sought, the increased rating issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss prior to December 4, 2019 and in excess of 80 percent thereafter is denied. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking increased disability ratings for his service-connected bilateral hearing loss. Specifically, the Veteran contends his hearing loss is more severe than reflected by his assigned disability ratings. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. Ratings for hearing impairment are 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 (1992). Turning to the evidence of record, the Veteran was afforded a VA audiological examination in December 2010. He reported difficulties hearing even with the use of hearing aids. He stated that he often relied on his coworkers for assistance with work. The Veteran added that he had difficulties hearing on the phone. On testing, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 80 85 85 LEFT 35 80 85 90 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 72.5 decibels for the right ear and 72.5 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 70 percent for the right ear and 80 percent for the left ear. Applying the test results of the December 2010 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level VI for the right ear and Level IV for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a 20 percent disability rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in March 2015; however, the results of the test were deemed invalid due to speech reception threshold measures indicating poor reliability. Thus, the March 2015 examination is not valid for rating purposes. The Veteran was afforded a VA audiological examination in April 2016. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 85 70 80 LEFT 40 90 70 80 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 67.5 decibels for the right ear and 70 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 70 percent for the right ear and 80 percent for the left ear. Applying the test results of the April 2016 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear and Level IV for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in December 2019. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 85 90 95 LEFT 50 90 100 105 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 77.5 decibels for the right ear and 86.25 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 44 percent for the right ear and 22 percent for the left ear. Applying the test results of the December 2019 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level IX for the right ear and Level XI for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is an 80 percent disability rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in September 2020; however, the results of the test were deemed invalid due to inter-test inconsistencies. Thus, the September 2020 examination is not valid for rating purposes. Based on review of the evidentiary record, the Board finds that the evidence does not support a disability rating in excess of 20 percent for the period prior to December 4, 2019 or a disability rating in excess of 80 percent for the period from December 4, 2019. The Board has considered the lay statements of record, submitted by both the Veteran and coworkers, and finds the statements competent and credible in regard to reporting worsening hearing acuity and functional effects. However, more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulties with his hearing and his coworkers are competent to report witnessed effects of his hearing loss; however, neither the Veteran or his coworkers are competent to assign particular speech recognition scores or puretone decibel readings to his current acuity problems. Additionally, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after 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). In other words, the Board is bound by law to apply VA’s rating schedule based on the audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Accordingly, the Board finds that a disability rating in excess of 20 percent for the Veteran’s bilateral hearing loss prior to December 4, 2019 is not warranted and a disability rating in excess of 80 percent from December 4, 2019 is not warranted. 2. Entitlement to a TDIU from December 4, 2019 is granted. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more 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). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16(a)(2). With that framework in mind, the Board concludes that the Veteran meets the criteria for TDIU under 38 C.F.R. § 4.16(a) from December 4, 2019. The Veteran has one service-connected disability, hearing loss, rated at 60 percent or more. The record must reflect that circumstances, apart from non-service-connected conditions, place the veteran in a different position than other veterans having the same compensation rating. The sole fact that a veteran 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 is whether the veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s application for a TDIU indicates that the Veteran completed high school and worked as a janitor from 2003 to 2016. He noted that his service-connected hearing loss and left leg disability prevented him from following substantially gainful occupation. In an October 2010 statement, Mr. A. F., the Veteran’s work-leader, noted that the Veteran’s hearing aids did not help much and he would have to talk loudly to get his point across or show the Veteran what needed to be done. Mr. A. F. stated he tried to help the Veteran as much as he could to get him through his assignments. In an October 2010 statement, Mr. N. W., the Veteran’s supervisor, stated that when giving the Veteran an assignment, he would not be able to get his attention unless he spoke very loudly. Mr. N. W. added that he noticed the Veteran’s hearing was worsening. In an October 2010 statement, Ms. W. M., a coworker, noted that she had to speak very loudly to the Veteran in order for him to hear her. She added that the Veteran needed to learn to read lips so that he could communicate with the staff, as their workplace did not have special phones to accommodate his disability. In a November 2010 statement, Mr. D. G., a coworker, stated that he had to repeat things several times when speaking to the Veteran. Mr. D. G. described one incident when the Veteran was unaware of his name being called from behind until he was tapped on the shoulder. In the June 2019 Board hearing, the Veteran testified that he retired due to issues at work with his hearing. A December 2019 VA audiological examination indicated that the Veteran’s hearing loss affected his ability to work, noting that the Veteran would not hear very well and could not hear people at work. A September 2020 VA examination for the Veteran’s service-connected left leg post-phlebitic syndrome noted that the Veteran could walk and stand for short periods and distances. Sedentary work was okay. Based on this evidence and affording all benefit of the doubt to the Veteran, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude him from substantially gainful employment. The evidence shows the Veteran is unable to hear in a work environment and has difficulty when given tasks verbally. The impairment attributable to the Veteran’s bilateral hearing loss when combined with the pain from his left leg disability make it unlikely that he could obtain and retain gainful employment in light of his education, training, and work experience. Further, the Veteran does not have specific educational or occupational training for a sedentary or light duty position, both of which would likely require the ability to hear well. In sum, given the evidence regarding the severity and functional limitations due to the Veteran’s service-connected disabilities, and in light of his individual work experience and training, the Board finds that the evidence shows the Veteran is entitled to an award of TDIU. Thus, entitlement to TDIU is granted from December 4, 2019. REASONS FOR REMAND 1. Entitlement to a TDIU on an extraschedular basis prior to December 4, 2019 is remanded. The issue of entitlement to a TDIU stems from the Veteran’s July 2010 claim for an increased disability rating for hearing loss. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). For the period prior to December 4, 2019, the Veteran was service connected for hearing loss with a 20 percent disability rating from July 24, 2002; left leg post-phlebitic syndrome with a 20 percent disability rating from August 15, 2011; tinnitus with a 10 percent disability rating from November 14, 2001; scar with a 10 percent disability rating from November 14, 2001; and status post hernia repair of the left leg anterior compartment with a noncompensable disability rating from August 15, 2011. The Veteran’s combined rating was 40 percent from July 24, 2002 and 50 percent from August 15, 2011. Therefore, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. However, even when the criteria under 38 C.F.R. § 4.16(a) are not 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). The Board cannot, in the first instance, award an extraschedular TDIU, but must remand the matter to VA’s Director of Compensation Service for consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, based upon the Veteran’s medical treatment history, employment history, and level of education, there is an indication that the Veteran may not have been employable as a result of his service-connected disabilities for the period prior to December 4, 2019. He completed high school and last worked as a janitor for 13 years. Statements submitted by the Veteran’s coworkers indicate that the Veteran’s hearing interfered with his job and coworkers and supervisors helped minimize the impact of his disabilities. The Board is compelled to remand the claim for entitlement to TDIU on an extraschedular basis as a result of service-connected disabilities for referral to the Director of Compensation in accordance with 38 C.F.R. § 4.16(b) for consideration of whether this benefit is warranted on an extraschedular basis. The Board notes that such a referral merely indicates that there is evidence sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities and does not bind the Board to grant an extraschedular TDIU. Ray v. Wilkie, 31 Vet. App. 58 (2019). Finally, the Board notes that two employment information forms have been received for the Veteran’s employment at L. L. Healthcare System; however, they contain conflicting information. Specifically, an August 2016 employment information form indicated that the Veteran was employed from July 7, 2003 to May 31, 2016, lost no time due to illness, worked without concessions, and voluntarily retired. Specific information was included, such as the amount the Veteran earned during the last 12 months, the date and gross amount of his last payment, and the amount of his monthly retirement benefit. Alternatively, a September 2020 employment information form indicated that the Veteran worked from July 2002 to April 25, 2016, was given concessions, i.e., limited duties and allowed to sit for 15 minutes every hour, and retired due to “limitation of walking and hearing loss.” The amount the Veteran earned during the last 12 months differed from the August 2016 employment information form and specific information was not included. Given the discrepancies between the August 2016 and September 2020 employment information forms, while on remand, the AOJ should once again request employment information from L. L. Healthcare System. The matter is REMANDED for the following action: 1. Obtain authorization and request employment information from L. L. Healthcare System. 2. Pursuant to 38 C.F.R. § 4.16(b), refer the claim for entitlement to TDIU prior to December 4, 2019 on an extraschedular basis to VA’s Director of Compensation for extraschedular consideration as to whether the Veteran is unemployable due to his service-connected disabilities. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.