Citation Nr: 21061831 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-29 871 DATE: October 5, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 6, 2018, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected hearing loss manifested in no worse than level IV in the right ear and level II in the left ear. 2. Prior to April 6, 2018, the Veteran worked full-time as a director for a university. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.85 Diagnostic Code 6100, 4.86. 2. Prior to April 6, 2018, the criteria for TDIU 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 on active duty from April 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in April 2020 and February 2021. The case has been returned to the Board at this time for further appellate review. The case was last remanded in order to associate with the claims file a July 2016 VA audiogram. This record has now been associated with the claims file. Accordingly, the Board finds there was substantial compliance with the prior remand directives. 1. Entitlement to an initial compensable rating for bilateral hearing loss is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate evaluations may be assigned for different periods of time based on the facts found when an initial evaluation is disputed following a grant of service connection. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing, together with the average hearing threshold level, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak v. Nicholson, 21 Vet. App. 447 (2007); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examination reports, however, are required to include full descriptions of the functional effects caused by a hearing disability. Martinak, 21 Vet. App. at 455. Other than in exceptional cases of hearing loss, VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear. 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, or where the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In these circumstances, the hearing acuity level will be assigned using either Table VI or Table VIa, whichever yields the higher level. Id. VA will resolve reasonable doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding any material issue. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran was provided a VA audiological examination in January 2015. The audiometric test results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 25 60 70 LEFT 10 25 35 70 The average pure tone threshold for the right ear was 40 decibels. The average pure tone threshold for the left ear was 35 decibels. Maryland CNC speech recognition scores were 90 percent for the right ear and 96 percent for the left ear. These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The results of the January 2015 audiometric testing do not support a compensable rating for bilateral hearing as they equate to the assignment of Level II hearing loss for the Veteran's right ear, and Level I hearing loss for the Veteran's left ear, upon application of Table VI. The Veteran's hearing acuity was assessed in July 2016. The Veteran's VA treatment records reflect that the audiometric testing results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 35 60 75 LEFT 15 15 35 70 The average pure tone threshold for the right ear was 46.25 decibels. The average pure tone threshold for the left ear was 33.75 decibels. Maryland CNC speech recognition scores were 92 percent for the right ear and 96 percent for the left ear. These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The results of the July 2016 audiometric testing do not support a compensable rating for bilateral hearing as they equate to the assignment of Level I hearing loss for the right ear and Level I for the left ear, upon application of Table VI. The Veteran's hearing acuity was again assessed during a VA audiological examination in September 2016. The audiometric testing results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 35 55 75 LEFT 15 20 35 70 The average pure tone threshold for the right ear was 43.75 decibels. The average pure tone threshold for the left ear was 35 decibels. Maryland CNC speech recognition scores were 74 percent for the right ear and 84 percent for the left ear. These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The results of the September 2016 audiometric testing do not support a compensable rating for bilateral hearing as they equate to the assignment of Level IV hearing loss for the right ear and Level II for the left ear, upon application of Table VI. The Veteran's hearing acuity was also assessed during a VA audiological examination in December 2018. The audiometric testing results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 60 65 75 LEFT 25 40 50 70 The average pure tone threshold for the right ear was 57.5 decibels. The average pure tone threshold for the left ear was 46.25 decibels. Maryland CNC speech recognition scores were 96 percent for the right ear and 86 percent for the left ear. These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The results of the December 2018 audiometric testing do not support a compensable rating for bilateral hearing as they equate to the assignment of Level II hearing loss for the right ear and Level II for the left ear, upon application of Table VI. The Board acknowledges the Veteran's reports of difficulty hearing in meetings, conferences, and public places, especially where there is background noise, as well as difficulty hearing higher frequencies, however, these type of impairments are fully contemplated by the schedular rating criteria for bilateral hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Accordingly, entitlement to an initial compensable rating for bilateral hearing loss must be denied. 2. Entitlement to TDIU, prior to April 6, 2018, is denied. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Here, the Veteran first raised the issue of entitlement to TDIU as part of his appeal of an April 2015 rating decision regarding the initial ratings assigned to his service-connected bilateral hearing loss and posttraumatic stress disorder. The issue of entitlement to TDIU has remained on appeal since. In a July 2019 rating decision, entitlement to TDIU was granted effective April 6, 2018. Thus, the remaining issue is entitlement to TDIU prior to April 6, 2018. The Veteran is service connected for posttraumatic stress disorder, bilateral pes planus, tinnitus, and bilateral hearing loss. He has met the schedular requirements during the time period on appeal. The record reflects that the Veteran was employed full-time as a director for a university beginning in February 2011 until April 5, 2018. A December 2018 VA Form 21-4192 submitted by the Veteran's former employer reflects that the Veteran earned over the poverty limit and that no concessions were made to the Veteran by reason of age or disability. Thus, the Board finds that the preponderance of the evidence establishes that the Veteran worked full-time during the period on appeal and that the Veteran's employment from February 2011 to April 5, 2018 was not marginal on either an income basis or facts-found basis. The Board finds that the Veteran's full-time employment from February 2011 to April 5, 2018, indicates the Veteran was not precluded from engaging in substantially gainful employment prior to April 6, 2018. It follows that entitlement to TDIU for the time period on appeal is not warranted, and thus, the appeal must be denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.