Citation Nr: 21002782 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-58 839A DATE: January 14, 2021 ORDER An initial compensable rating for hearing loss prior to July 20, 2016 is denied. From July 20, 2016, to January 14, 2020 a 70 percent rating for hearing loss is granted. From January 14, 2020, a rating in excess of 70 percent for hearing loss is denied. A total disability rating based on unemployability (TDIU) from October 24, 2013 is granted.   FINDINGS OF FACT 1. Prior to July 20, 2016, the Veteran’s hearing loss was manifested by no worse than Level I hearing loss in his right ear and left ear. 2. Since July 20, 2016, the Veteran’s hearing loss has been manifested by no worse than Level IX hearing loss in the right ear and Level X hearing loss in the left ear. 3. Since October 24, 2013, the Veteran’s combined service-connected disability picture has precluded him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to July 20, 2016 for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. From July 20, 2016, to January 14, 2020, the criteria for a 70 percent rating for hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, DC 6100. 3. From January 14, 2020, the criteria for a rating in excess of 70 percent for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, DC 6100. 4. The criteria for a TDIU from October 24, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1964 to January 1987. The case is on appeal from a February 2015 rating decision. In December 2019, the Veteran testified at a Board hearing. In December 2019, the Board remanded the claim for additional development. While the case was in remand status, a May 2020 rating decision granted a TDIU effective from January 14, 2020 and a subsequent July 2020 rating decision assigned an earlier effective date of May 8, 2018 for the grant of TDIU. Thus, with respect to the TDIU issue, what remains on appeal before the Board is entitlement to a TDIU prior to May 8, 2018. See Harper v. Wilkie, 30 Vet. App. 356, 363 (2018). Additional evidence was received subsequent to the most recent supplemental statement of the case issued in July 2020. As the evidence is not pertinent to the claims decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial compensable rating for hearing loss prior to January 14, 2020, and in excess of 70 percent thereafter. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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 that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Analysis The Veteran asserts that he is entitled to a higher rating for his service-connected hearing loss. He asserts his hearing loss is progressively worsening. See Board Hr’g. Tr. at 6. He states further his hearing loss impacts ordinary conditions of daily life, to include his wife getting upset when he cannot hear or respond to her, and having to ask others to repeat themselves often. See December 2014 VA examination. The Board finds in this case, an earlier increased rating is warranted. During the course of the appeal, the RO increased the rating for the Veteran’s hearing loss from noncompensable to 70 percent effective December 16, 2019 based on the date of a VA examination. However, after reviewing all of the relevant clinical evidence and subjective complaints, the Board find that the evidence supports that a factually ascertainable increase in disability as of July 20, 2016, the date of a VA treatment record indicating that the Veteran complained of worsening hearing loss rather than the arbitrary December 16, 2019 VA examination date. The Veteran underwent a VA examination in December 2014. At that time, the Veteran reported that he had difficulty hearing his wife and that he often has to ask others to repeat themselves. Testing from the December 2014 VA examination by an audiologist revealed the following puretone thresholds, in decibels and Maryland CNC Word List speech recognition scores: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 35 40 55 41.25 92% LEFT 30 35 55 55 43.75 92% Applying the results to Table VI, the findings yield a numeric designation of Level I in both the right ear and left ear. Entering the resulting bilateral numeric designation of Level I for both the right ear and left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Pursuant to the Board’s December 2019 remand, the Veteran underwent another VA examination in January 2020. With regard to functional impact of his hearing loss, the Veteran stated that he uses closed captioning when watching television. The examiner noted that the Veteran’s hearing loss impacts the ordinary conditions of daily life, including the ability to work. The January 2020 VA examination revealed the following puretone thresholds, in decibels and Maryland CNC Word List speech recognition scores: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 85 95 100 105 96.25 72% LEFT 90 90 105+ 105+ 97.5 100% Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level IV in the left ear. The Board notes that an exceptional pattern of hearing loss is shown for the right and left ears under 38 C.F.R. § 4.86(a) as the Veteran had 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz for both the right and left ears. The 96 decibel right ear average puretone average threshold warrants a designation of Level IX and the 98 decibel right ear average puretone threshold warrants a designation of Level X under Table VIA. As the designation under table designations under Table VIA for both the right and the left ears are more favorable to the Veteran than designations found under Table VI, Table VIA will be applied. Under Table VII, numeric designation of IX for the right ear and X for the left ear, when applied, show a rating of 70 percent. The Board finds an initial compensable rating for this disability prior to July 20, 2016 is not warranted. Although the Veteran contends that his hearing loss should be rated at a compensable level, the applicable mechanical hearing tests of record show that his hearing loss was correctly evaluated as noncompensable disabling during that time period. However, the Board finds that an effective date of July 20, 2016 rather than December 14, 2020 for the increased evaluation to 70 percent is warranted. VA treatment records reflect that on July 20, 2016 the Veteran reported that his hearing loss had worsened and that he underwent an audiology consultation in August 2016. While his August 2016 audiology consultation testing results are not valid for rating purposes, the Board finds that the reduced hearing level the Veteran reported on July 20, 2016 were confirmed at this time, as the audiologist noted that the Veteran’s hearing loss was normal sloping to severe sensorineural hearing loss. This worsening was also confirmed by the January 2020 VA examination which reflects results consistent with the 70 percent rating criteria. Thus, the Board finds when affording the Veteran the benefit-of-the-doubt that his hearing indeed worsened at the time of the July 20, 2016 VA appointment. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In addition, since July 20, 2016, the Board also finds that the correct evaluation for his hearing loss is 70 percent, and an even higher rating is not warranted. Using Table VII of 38 C.F.R. § 4.85, the scores of IX (right ear) and X (left ear) combine for an evaluation of not more than 70 percent. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s complaints regarding his difficulty hearing. The Veteran is competent to report difficulty with his hearing; however, 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). Moreover, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). In sum, the preponderance of the evidence of against a compensable rating prior to July 20, 2016, the benefit-of-doubt doctrine is not further applicable. However, after resolving any reasonable doubt in the Veteran’s favor, the Board finds that a 70 percent rating is warranted for the Veteran’s hearing loss from July 20, 2016, but a further increase from that date is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A TDIU prior to May 8, 2018. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (citing 20 C.F.R. § 404.1567). Analysis While the case was in remand status, a May 2020 rating decision granted a TDIU effective from January 14, 2020 and a subsequent July 2020 rating decision assigned an earlier effective date of May 8, 2018 for the grant of TDIU. The effective date was assigned based on a decline in the Veteran’s functioning due to PTSD noted in the Veteran’s VA treatment records. However, the claim has already arisen as a component of the increased initial rating claim pertaining to hearing loss on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The grant, effective from May 8, 2018, was not a full grant of the benefit sought because the Veteran filed an original claim pertaining to hearing loss on October 24, 2013. As such, entitlement to a TDIU prior to May 8, 2018 remains on appeal. According to a December 2013 TDIU claim form, the Veteran asserted that his service-connected mental health disorder prevents him from securing or following any substantially gainful employment. The Veteran reported that he last worked full time in September 2004 and that was also when he became too disabled to work. The Veteran reported further that he left his last job due to his disability and that he has not tried to obtain employment since he became too disabled to work. With regard to education, the Veteran reported that he completed four years of high school, completed a “Navy Leadership Management” program in 2001, and took computer courses in 2000. He also noted that he was unable to work after he had surgery due to colon cancer in March 2004. The Veteran underwent a VA examination concerning his service-connected PTSD in August 2013. With regard to the Veteran’s educational and occupational history, the examiner noted the Veteran graduated from high school and attended community college for two years, studying business and personnel management, later in life but stopped attending in 2004 when he was diagnosed with colon cancer. The Veteran also reported that he served in the Navy from 1964 to 1987. Following his military service, the Veteran reported he worked as an analyst for a government contractor for several years and then worked in a civilian position for the Navy as a supply clerk until 2004 when he was diagnosed with colon cancer, which required extensive medical treatment. With regard to symptoms, the examiner reported the Veteran experienced depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The Veteran provided a statement in August 2014. He reported that he stopped working in September 2004 because he was having problems with his health. He noted that he was diagnosed with colon cancer for which he underwent surgery and chemotherapy and that these treatments caused him to feel unwell. He notes that he was diagnosed with an enlarged heart, hypertension, diabetes, and high cholesterol. He also stated that he was enrolled in PTSD classes at the VA. The Veteran underwent a VA examination concerning his service-connected hearing loss and tinnitus in December 2014. At that time, the examiner noted that the Veteran’s hearing loss impacts the ordinary conditions of daily life, including the ability to work. The Veteran was afforded a VA examination concerning a service-connected ulcer. At that time, the examiner determined that the Veteran did not have an active diagnosis of an ulcer. The Veteran was previously afforded a VA examination concerning his service-connected ulcer in September 2011. At that time, the examiner noted that the Veteran’s ulcer impacted his ability to work, as it caused pain on walking. VA also received records from the Social Security Admiration (SSA). In pertinent part, the records include information provided by the Veteran regarding his work history. The Veteran reported that he was previously employed in government logistics management. From April 1991 to December 2000, was employed as a division director of inventory management, and from January 2001 to September 2004 he was employed as a supervisor of inventory management. With regard to duties, he reported he was responsible for analyzing inventory using computer programs and spreadsheets, supervising employees, attending meetings, and traveling to job sites. He also reported that the jobs required significant walking, some sitting and standing. Applying this evidence to the Ray factors, the Veteran is shown to have a high school education and completed two years of college without obtaining a college degree. He has a work history in inventory management related to government logistics management. The evidence of record reflects that the Veteran’s previous occupational tasks include fairly light work and computer usage, though requiring significant time standing. The Veteran’s physical limitations primarily include his service-connected hearing loss and tinnitus, which the examiner who provided the December 2014 VA examination determined impacts the ordinary conditions of daily life, including the ability to work, and pain on walking due to his service-connected ulcer as noted by the examiner who provided a September 2011 VA examination. With regard to whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue, the Board finds that the Veteran’s service-connected physical limitations primarily include his hearing loss and tinnitus and some pain with walking. Although the Veteran as asserted other conditions including an enlarged heart, hypertension, diabetes, and high cholesterol, affect his ability to work, he is not service connected for those conditions. With regard to whether his limitations would have impact on his ability to perform the activities at issue, his hearing loss and tinnitus would affect his ability to hear and understand others and his pain with walking would affect his ability to stand for prolonged periods. With regard to whether the Veteran has the mental ability to perform the activities required by the occupation at issue, the Board finds that the symptoms of the Veteran’s PTSD limit his ability to work. In this regard, the evidence of record reflects that Veteran’s psychiatric symptoms include depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. This evidence makes it unlikely that the Veteran would be able to perform the functional requirements of any substantially gainful employment. Any type of job would require some degree of minimal social interactions, the ability to concentrate, and regular attendance. Thus, due to his psychiatric impairments, he would unlikely be able to secure or follow more than marginal employment consistent with his background, training, and education at any job, whether sedentary or physical, which would require a degree of mental functioning to carry out the job functions that has been outside the Veteran’s capacity. (Continued on the next page)   In addition, the Board notes that Veteran also meets the schedular requirements for a TDIU from October 24, 2013. From that date, the Veteran’s service-connected PTSD is rated 70 percent disabling and his combined disability rating is 90 percent disabling. As such, he meets the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a). Accordingly, when reasonable doubt is resolved in favor of the Veteran, the Board finds that, from October 24, 2013, the Veteran was no longer employed, and his service-connected disability picture prevented him from securing or following a substantially gainful occupation consistent with his educational and occupational background. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, effective October 24, 2013, a TDIU is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, Associate 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.