Citation Nr: 21003329 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-20 915 DATE: January 21, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent for left wrist healed fracture radius (left wrist disability) is denied. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities to include on an extra-schedular basis is remanded. FINDINGS OF FACT 1. The Veteran’s hearing loss was manifested by no worse than level II hearing in the right ear and level I hearing in the left ear. 2. The Veteran is currently in receipt of the maximum schedular rating for her service-connected left wrist disability. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a rating in excess of 10 percent for a left wrist disability have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, DC 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to April 1989. In March 2018, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in May 2018 for additional development. It now returns for further appellate review. The Board notes that the Veteran was granted service connection for an acquired psychiatric disability in the July 2020 rating decision. That award constitutes a full grant of the benefit sought, as such that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). Increased Rating 1. Bilateral hearing loss The Veteran seeks a compensable rating for her service-connected bilateral hearing loss. Specifically, she reported that she was prescribed hearing aids for her hearing loss. See April 2012 VA Form 21-4138, Statement in Support of Claim. Legal Criteria Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings may are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of bilateral defective hearing 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability for bilateral service-connected defective hearing, 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, DC 6100. 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). The evaluations derived from the schedule are intended to make allowance for improvement by hearing aids. 38 C.F.R. § 4.85, DC 6100. Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86. That regulation states: (a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 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. Each ear will be evaluated separately. (b) When the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). Relevant Facts and Analysis The Veteran filed the instant claim on April 4, 2012. Thus, the relevant temporal focus is from April 4, 2012 to the present. The Veteran was afforded VA audiological examinations in August 2013 and October 2019. During the August 2013 VA audiological evaluation, an audiogram showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 25 25 25 25 LEFT 25 15 30 35 26 See August 2013 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The puretone threshold average was 25 decibels in the right ear and 26 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 in the left ear. Applying Table VI of the rating schedule, the results of the August 2013 audiogram revealed that the Veteran had Level II hearing in the right ear and Level I hearing in the left ear. Based on Table VII, these results correspond to a noncompensable rating. See 38 C.F.R. § 4.85. The Veteran underwent a second VA audiological examination in October 2019. The air conduction testing revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 30 30 30 26 LEFT 25 25 30 35 29 See October 2019 VA Hearing Loss and Tinnitus DBQ. The puretone threshold average was 26 decibels in the right ear and 29 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. Applying Table VI of the rating schedule, the results of the August 2013 audiogram revealed that the Veteran had Level I hearing in the right ear and Level I hearing in the left ear. Based on Table VII, these results correspond to a noncompensable rating. See 38 C.F.R. § 4.85. Upon review, the audiological examinations of record indicate findings corresponding to no higher than a noncompensable rating. There is no additional competent evidence in the record that would suggest that the Veteran’s hearing loss is severe enough to warrant a higher rating. The Board has no reason to doubt the validity of the VA audiometric testing in this case. Moreover, none of the VA examinations demonstrate an exceptional pattern of hearing impairment, as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz, or a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b). Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc. As such, there is no basis to alternatively rate this claim under Table VIA. See 38 C.F.R. § 4.85 (c). The Veteran’s subjective reports of hearing impairment have been considered. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of her lay statements gives no indication of specific symptoms or a particular degree of impairment that would justify a compensable rating. Moreover, the Board is bound to apply the VA rating schedule, where the assignment of disability ratings for hearing impairment is derived from a mechanical formula. Thus, while laypersons are competent to report general symptoms such as hearing loss, the specific audiological findings from the audiological examinations from August 2013 and October 2019 are more probative of the severity of the Veteran’s hearing loss disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for the Veteran’s bilateral hearing loss disability is noncompensable, throughout the appeal period. The Veteran has not met the criteria for a compensable rating during any discrete period involved in this appeal. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim for a compensable rating must be denied. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7 2. Left wrist disability The Veteran seeks an increased rating for her service-connected left wrist disability than the currently assigned 10 percent rating. See July 2015 VA Form 9. The Veteran was originally granted service connection for a left wrist disability effective April 1989. She filed the instant claim for increase in April 2012 (see April 2012 VA Form21-526), as such the rating period on appeal is from April 4, 2012 to the present, although the evidence to be considered will be one year prior to the claim. The Veteran’s left wrist disability has been rated as 10 percent disabling under DC 5215. Under DC 5215, a 10 percent evaluation is assigned for limitation of motion of the major or minor wrist with either dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm. 38 C.F.R. § 4.71a, DC 5215. Factual Background The Veteran was provided a VA examination in connection with her claim in August 2013. See August 2013 VA Elbow and Forearm Conditions DBQ. The examiner confirmed a diagnosis of fracture of left radius (wrist). The Veteran reported symptoms of swelling, tingling, numbness, and limited motion. She endorsed flare-ups and stated she drops things occasionally. The examination report did not record range of motion (ROM) findings for the Veteran’s wrist. Id. The Veteran underwent a second VA examination in May 2015. See May 2015 VA Wrist Conditions DBQ. The Veteran endorsed severe flare-ups occurring on a monthly basis lasting for three days, which were brought on by overuse. On ROM testing, the Veteran exhibited left wrist palmar flexion to 55 degrees, dorsiflexion to 60 degrees, ulnar deviation to 30 degrees, and radial deviation to 20 degrees. Id. The examiner noted pain on examination that did not cause functional loss. The Veteran exhibited pain on weight-bearing, and there was objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional functional or ROM loss. The Veteran displayed full muscle strength in her left and there was no evidence of ankylosis. She regularly used a brace for her wrist. An x-ray of her left wrist taken for the examination indicated mild degenerative changes of the trapezium. The examiner found that the occupation impact of the Veteran’s left wrist disability was decreased use of left hand for strength, fine motor, and repetitive tasks as well as difficulty lifting, grasping, or supporting weight with left hand. Id. The Veteran underwent a third VA examination in October 2019. See October 2019 VA Wrist Conditions DBQ. The Veteran reported progressively worse left wrist pain. She reported swelling in her wrist and occasional swelling and numbness. She endorsed flare-ups which occurred when she does a lot of housework. Id. On ROM testing, the Veteran demonstrated palmar flexion to 50 degrees, dorsiflexion to 30 degrees, ulnar deviation to 30 degrees, and radial deviation to 10 degrees. The examiner noted pain on examination and rest and stated that pain and fatigue decrease ROM with repeated use over time. She also stated she found no basis to provide additional loss of function or ROM during flare-up based on the examination findings. The Veteran had full muscle strength in her wrist, and her left wrist was not ankylosed. The Veteran was noted to use a brace occasionally. Regarding the occupational impact of her left wrist, the examiner concluded that the Veteran was “unbale to perform some activities of daily living and activities such as typing as required by some jobs.” Id. Analysis The Board notes that a 10 percent rating is the maximum schedular rating under DC 5215 and, thus, a higher rating is not warranted under this DC as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). While the Board acknowledges the Veteran’s left wrist symptoms and the effect they have on her, she is already receiving the maximum rating available for left wrist limitation of motion. No higher rating is legally available under her currently assigned diagnostic code. As the Veteran is in receipt of the maximum rating for limitation of motion of the left wrist, the Board need not consider the possible application of 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). The Board considered whether a higher rating is warranted under DC 5214 for ankylosis of the wrist, but there is no evidence that the Veteran has ankylosis in her left wrist. The May 2015 and October 2019 VA examiners observed her limited and painful motion, but noted that she did not have ankylosis, or other wrist disability. Her VA medical treatment records also do not mention a diagnosis of ankylosis in her left wrist nor has the Veteran reported symptoms of ankylosis. A higher rating is, thus, not warranted under this diagnostic code. Further, as she has not been diagnosed with nonunion of the radius and ulna, impairment of the radius and/or ulna, impairment of supination or pronation, or arthritis, there are no alternative diagnostic codes providing a higher schedular rating under which he could be evaluated. Consideration of a rating under DCs 5003 and 5010 is only available if there is no limitation of motion under the appropriate diagnostic code, which is not the case here. As such, a rating under these DCs are not applicable. Accordingly, the preponderance of the evidence is against finding that the Veteran’s left wrist disability warrants more than a 10 percent rating and the claim must be denied. REASONS FOR REMAND 1. TDIU The claim for TDIU is remanded for referral for extra-schedular consideration. Specifically, the Veteran did not meet the schedular threshold requirements for TDIU. The Veteran is service connected for unspecified depressive disorder rated as 30 percent disabling since September 30, 2013; chronic bursitis of right hip rated as 10 percent disabling since April 4, 2012; left wrist disability rated as 10 percent since April 4, 2012; degenerative joint disease (DJD) lumbar spine rated as 10 percent disabling since April 4, 2012; tinnitus rated as 10 percent disabling since April 4, 2012; DJD right knee rated as 10 percent since April 4, 2012; and chronic right hip bursitis, right hip (based on flexion), and hearing loss rated as noncompensable. The Veteran’s combined disability rating is 50 percent since April 4, 2012 and 60 percent since June 7, 2012. See July 2020 Rating Decision Codesheet. The Veteran may be entitled to TDIU on extra-schedular basis if it is established that she was unable to secure or follow substantially gainful employment as a result of the effect of her service-connected disabilities. 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), if the schedular percentage threshold criteria are not met for TDIU, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of an earlier effective date for TDIU. 38 C.F.R. § 4.16 (b). Neither the Agency of Original Jurisdiction (AOJ) nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, the evidence reflects that the Veteran may be unable to secure or follow substantially gainful employment as a result of the effect of her service-connected disabilities. As an initial matter, a private medical opinion from Dr. R.N.P. dated March 2013 noted the Veteran had fractured pelvis, fractured wrist, chronic back pain, and hearing loss with hearing aid use, which precluded her from working. See March 2013 Powell Medical Facility Note. Additionally, during a November 2012 VA orthopedic surgery consult, the Veteran reported she could only sit for 15 minutes before needing to reposition. See November 2012 VA Orthopedic Surgery Consult in CAPRI received September 2013. During the August 2013 VA examination for hearing loss, the Veteran asserted that she experienced severe sleep deprivation due to constant tinnitus. See August 2013 VA Hearing Loss and Tinnitus DBQ. Additionally, the Veteran stated that she stopped working after being diagnosed with chronic tinnitus in 2010. See July 2012 VA Form 21-4138. She also testified during the March 2018 Board hearing that it was dangerous for her to work due to tinnitus and had psychiatric symptoms which prevented her from working. Finally, regarding the occupational of Veteran’s left wrist disability, the October 2019 VA examiner opined she was limited from performing activities of daily living including typing and the May 2015 VA examiner found she was unable to perform repetitive tasks, use fine motor skills, or lifting objects. See October 2019 VA Wrist Conditions DBQ; May 2015 VA Wrist Conditions DBQ. As the above-cited evidence indicates that the Veteran may be unemployable due to her service connected disabilities, the Board finds a referral to the Director, Compensation Service is warranted. The matters are REMANDED for the following action: 1. The Regional Office (RO) should also undertake any additional development deemed necessary for the Veteran’s TDIU claim. 2. Following any necessary development, refer the claim to the Director, Compensation Service for consideration of an extraschedular TDIU rating in accordance with 38 C.F.R. § 4.16(b). • A full statement regarding the Veteran’s service-connected disabilities, employment history, educational and vocational training, and all other factors pertaining to the issue must be provided. 3. Should the Director indicate that further evidentiary development is required, such development should be undertaken. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.