Citation Nr: 21063880 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-18 894 DATE: October 18, 2021 ORDER Entitlement to compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's service-connected bilateral hearing manifested by no worse than level IV hearing impairment in the right ear and level II hearing impairment in the left ear. 2. The Veteran's service-connected disabilities did not preclude the Veteran from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100 (2020). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force as an aviation maintenance specialist from September 1976 to September 1980, and in the Army National Guard as a warrant officer and helicopter pilot from November 1980 to December 1988 with active duty for training from July 1981 to November 1981. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (R) In June 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). The Veteran's claims file contains a copy of the transcript. In April 2021, the Board remanded these issues pursuant to the terms of a November 2020 Joint Motion for a Partial Remand (JMPR) and issuance of an SSOC. The Board finds that there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings The Veteran asserts that his bilateral hearing loss warrants a compensable rating. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Bilateral Hearing Loss (BHL) The RO has evaluated the Veteran's service-connected BHL under 38 C.F.R. § 4.86, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. 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 pure tone audiometry test. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I through Level XI. These are assigned based on a combination of the percent of speech discrimination and the pure-tone threshold average, as contained in a series of tables within the regulations. The pure-tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (d). This average is used in all cases to determine the Roman numeral designation for hearing impairment. Average pure-tone decibel loss for each ear is located on Table VI ("Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination") along a horizontal axis, and percent of discrimination is located along a vertical axis. 38 C.F.R. § 4.85, Table VI. The results are then matched between the "better" ear and the "poorer" ear on Table VII ("Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100)") to produce a disability rating under Diagnostic Code 6100. Additional tables are available for use in cases with exceptional patterns of hearing loss. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). When the pure-tone 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. 38 C.F.R. § 4.86(a). When the pure-tone 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. 38 C.F.R. § 4.86(b). Evidence and Analysis In June 2018, the Veteran reported for a VA audiological examination. An audiologist reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. Upon testing, pure-tone thresholds, in decibels, were: 500 1000 2000 3000 4000 RIGHT 35 40 30 55 60 LEFT 30 30 40 45 55 Speech audiometry revealed speech discrimination of 98 percent in the right ear and of 94 percent in the left ear. These results, when applied to Table VI correspond to a Level I designation for the right ear, and a Level I designation for the left ear. Under Table VII, Level I for the "better" (left) ear and Level I for the "worse" (right) ear warrant the assignment of a noncompensable disability rating. 38 C.F.R. § 4.85. The audiologist indicated that the Veteran endorsed overall functional impairments from bilateral hearing loss of difficulty hearing and understanding soft-spoken individuals as well as hearing when there is background noise. Martinak, 21 Vet. App. 447. In August 2018, the Veteran submitted a lay statement in which he articulated that he believed that the afore-noted examination "was poorly done and unprofessional." In January 2019, the Veteran reported for a VA audiological examination. Upon testing, pure-tone thresholds, in decibels, were: 500 1000 2000 3000 4000 RIGHT 30 40 40 60 75 LEFT 20 25 30 40 55 Speech audiometry revealed speech discrimination of 88 percent in the right ear and of 88 percent in the left ear. These results, when applied to Table VI correspond to a Level II designation for the right ear, and a Level II designation for the left ear. Under Table VII, Level II for the "better" (right) ear and Level II for the "worse" (left) ear warrant the assignment of a noncompensable disability rating. 38 C.F.R. § 4.85. The audiologist indicated that the Veteran endorsed overall functional impairments from bilateral hearing loss, to include difficulty understanding speech in the presence of background noise; understanding individuals' speech as mumbling; necessity of directly facing individuals to comprehend their speech; experiencing pain with loud noises; and difficulty understanding television. Martinak, 21 Vet. App. 447. At the June 2019 Board hearing, the Veteran testified that his bilateral hearing loss rendered him unable to continue his career as a civilian pilot. The Veteran stated that he could no longer carry on normal conversations. Additionally, the Veteran reported that he lost the ability to hearing alarms from the cockpit control panel. In August 2019 correspondence, a private licensed social worker indicated that he had provided psychotherapeutic services to the Veteran for approximately one year. In addition to reporting the Veteran suffered from serious anxiety, the social worker reported that this anxiety was "directly related to increasing challenges of service-connected maladies," to include, amongst others, hearing loss. The social worker noted the premature end of the Veteran's career as a professional pilot. This social worker did not provide any clinical records from which he derived his etiological opinions. In August 2020, the Veteran reported for a VA audiological examination. An audiologist followed VA exam protocols. Upon testing, pure-tone thresholds, in decibels, were: 500 1000 2000 3000 4000 RIGHT 40 45 40 60 65 LEFT 30 35 40 55 65 Speech audiometry revealed speech discrimination of 80 percent in the right ear and of 92 percent in the left ear. These results, when applied to Table VI correspond to a Level IV in the right ear and Level I in the left ear. Under Table VII, Level I for the "better" (right) and Level IV hearing for the "worse" (left) warrants the assignment of a noncompensable disability rating. 38 C.F.R. § 4.85. The audiologist indicated that the Veteran reported overall functional impairments from hearing losssuch as hearing high pitched voices; hearing people who do not directly face him; or hearing in the car. Martinak, 21 Vet. App. 447. Based upon the totality of the evaluation findings, the audiologist opined that with proper hearing and/or hearing adaptive devices, the Veteran could perform a normal 8-hour workday without restrictions. The Veteran sincerely believes that his service-connected bilateral hearing loss warrants a compensable rating. Indeed, the Veteran is competent to report discernable losses in bilateral hearing acuity; however, upon the record fails to disclose that the Veteran possesses the audiological expertise to assess the clinical severity of BHL according to applicable clinical standards. As such, the Veteran's lay beliefs do not constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds that the VA audiological examination reports to be the most probative evidence of record. All of the VA audiologist's audiometric findings, when applied to the applicable tables, show that the Veteran's bilateral hearing loss falls squarely within a noncompensable rating under 38 C.F.R. § 4.85. The rating criteria contemplate the Veteran's reports of difficulty hearing conversations and aircraft alarms. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that the Veteran's reported difficulties are factors contemplated in the regulations and schedular rating criteria. During the Board hearing, the Veteran suggested that he experienced dizziness or vertigo and had a pending claim for service connection for Meniere's disease as may have been associated with hearing acuity loss. However, in May 2020, the Veteran withdrew the appeal for this disorder. Consequently, the Board finds that the preponderance of evidence is against granting a compensable rating for bilateral hearing loss. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. 38 U.S.C. § 510 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. §§ 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Discussion The Veteran is service connected for the following disabilities: 1) unspecified anxiety disorder and major depressive disorder (MDD), at 30 percent from December 10, 2019; 2) right lower extremity radiculopathy at 10 percent from April 7, 2016 and at 20 percent from May 25, 2018; 3) degenerative arthritis of the spine with IVDS at 10 percent from April 7, 2016 and at 20 percent from February 7, 2020; 4) tinnitus at 10 percent from August 7, 2014; 5) appendectomy scar and drain site scar (Diagnostic Code 7804at 10 percent from August 7, 2014; 6) meralgia paresthetica left lower extremity at 10 percent from September 25, 2020; 7) bilateral hearing loss at a noncompensable rating from August 7, 2014; and 8) appendectomy scare and drain site scar (Diagnostic Code 7805) at a noncompensable rating from August 7, 2014. Thus, the Veteran does not meet the schedular requirements for entitlement to a TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, the Board will assess whether entitlement to a TDIU is warranted based on an extraschedular basis. For the reasons set forth below, the Board finds that the evidence of record does not substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities alone. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). Upon the June 2018 VA audiological examination, the audiologist indicated that the Veteran endorsed overall functional impairments from bilateral hearing loss of difficulty hearing and understanding soft-spoken individuals as well as hearing when there is background noise. The audiologist did not indicate that this disability rendered the Veteran unemployable. Upon a June 2018 VA thoracolumbar spine examination, a VA clinician indicated that the Veteran's spine disability (as noted above) caused the Veteran to lose zero to one week of work time over the prior 12 months. This clinician added that the Veteran was a pilot who had problems bending and sitting for extended periods of time. This clinician did not indicate that this disability rendered the Veteran unemployable. Upon the January 2019 VA audiological examination, the audiologist indicated that the Veteran endorsed overall functional impairments from bilateral hearing loss, to include difficulty understanding speech in the presence of background noise; understanding individuals' speech as mumbling; necessity of directly facing individuals to comprehend their speech; experiencing pain with loud noises; and difficulty understanding television. The audiologist did not indicate that this disability rendered the Veteran unemployable. At the June 2019 Board hearing, the Veteran testified that his bilateral hearing loss rendered him unable to continue his career as a civilian pilot. The Veteran stated that he could no longer carry-on normal conversations. Additionally, the Veteran reported that he lost the ability to hearing alarms from the cockpit control panel. As noted above, a private licensed social worker wrote that the Veteran suffered from serious anxiety "directly related to increasing challenges of service-connected maladies" in August 2019. Upon a January 2020 VA mental health examination, a psychologist opined that the Veteran's mental health disability, as reported above, was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inabilities to perform occupational tasks, although generally functioning satisfactorily with normal routine behaviors, self-care, and conversation. This psychologist did not indicate that this disability rendered the Veteran unemployable. Upon a July 2020 VA thoracolumbar spine examination, a clinician indicated that the Veteran's spine disability (as noted above) did functionally impact the Veteran's ability to work. The Veteran had lost two to four weeks of work time over the previous 12 months. The Veteran also experienced pain with bending or standing. This clinician did not indicate that this disability rendered the Veteran unemployable. Upon a July 2020 VA peripheral nerve conditions examination, a clinician reported that the Veteran's peripheral nerve disabilities (as noted above) did functionally impact the Veteran's ability to work. The Veteran experienced pain with walking, standing, or sitting for extended periods of time. This clinician did not indicate that this disability rendered the Veteran unemployable. Upon a July 2020 VA scars examination, a clinician reported that the Veteran's scars (as noted above) did not functionally impact the Veteran's ability to work. In a compendium of July 2020 VA opinions/individual unemployment statements (thoracolumbar spine conditions; scars/disfigurement; and peripheral nerve conditions), clinician indicated that the Veteran could perform a normal 8-hour workday if it was limited to exerting up to 10 pounds of force occasionally, and/or a negligible amount of force frequently to lift, carry, push, or pull. Such work ideally would involve sitting most of the time but could involve walking or standing for brief periods. No clinician indicated that the Veteran was unable to perform any gainful employment whatsoever. Upon the August 2020 VA audiological examination, the audiologist indicated that the Veteran reported overall functional impairments from hearing losssuch as hearing high pitched voices; hearing people who do not directly face him; or hearing in the car. This audiologist did not indicate that this disability rendered the Veteran unemployable. Based upon the totality of the evaluation findings, the audiologist opined that, according to equipoise standards (here, "not as least as likely as not") that the Veteran's bilateral hearing loss with proper hearing and/or hearing adaptive devices, the Veteran could perform a normal 8-hour workday without restrictions. Upon a September 2020 VA mental health examination, a psychologist indicated that the Veteran's mental health disability mildly impaired the Veteran's ability to sustain concentration to task persistence and pace; to respond appropriately to co-workers, supervisors, or the general public; and, lastly, ability to respond appropriately to changes in the working setting. This psychologist did not provide findings to the effect that the Veteran was profoundly impaired in any vector of functional impairment to work. Upon a November 2020 peripheral nerve conditions examination, a clinician reported that the Veteran's peripheral nerve disabilities (as noted above) functionally impacted the Veteran's ability to work in that the Veteran experienced pain with sitting for more than 30 minutes. This clinician did not indicate that these disabilities rendered the Veteran unemployable. In a January 2021, the Veteran's representative wrote that the Veteran warrants a grant of a TDIU. This representative underscored that the Veteran's education and professional experiences were limited to the aviation industry and piloting. Moreover, the representative argued that the combined severity of service-connected disabilities compelled the Veteran to retire early. The Board has considered these arguments and the many cases references made; however, the Board does not concur with the representative here. The record shows that the Veteran has a college education as well as extensive specialized training in piloting. Professionally, the evidence of record discloses that the Veteran has professional experience in managing large state board fairs and the field of aviation including as an aviation operations consultant. Moreover, the Veteran has experience working overseas. While the Veteran and his representative insist that service-connected disabilities render the Veteran unable to obtain or retain employment consistent with his education and professional experiences, the record shows that the Veteran commands a college education and professional expertise in the multifaceted aviation industry; piloting; and large events. While the Veteran and his representative insist that service-connected disabilities render the Veteran unable to obtain or retain employment consistent with his education and professional experiences, the record shows that the Veteran commands a college education and professional expertise in the multifaceted aviation industry; piloting; and large events. Moreover, the medical evidence of record, in which the Board places great probative weight, fails to show that any one of the Veteran's service-connected disabilities (of any combination thereof) renders the Veteran unable to obtain or retain substantially gainful employment. In fact, the Veteran reported that he works as a "volunteer" (strangely with a stipend) at the time of application for a TDIU. In accordance with the Court's holding in Ray, the Board has considered the economic and noneconomic components of the Veteran's TDIU claim. Ray, 31 Vet. App. 58. Collectively, the Board finds that this combination of education and work experiences are more than sufficient for the Veteran to obtain and maintain substantial employment considering his specific education and specific work in several professions (to include the multifaceted field of aviation). See Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board recognizes that the Veteran experiences bouts of mild occupational impairment. However, these limitations did not rise to the level of rendering the Veteran totally impaired physically, occupationally, or socially. The Veteran's job skills lend themselves to employment in many training and administrative functions in the aviation industry and public events administration (such as State Board Fairs). One need not be a pilot to thrive in a "behind the scenes capacity," such as training including flight simulator training; accounts management; project management; and *additional capacities (to include expert mentoring of less-experienced pilots and aviation group support). Here, the Board notes that many employers offer reasonable accommodations pursuant to the Americans with Disability Act (ADA), to allow for downtime due to disabilities. In the Veteran's case, it would have been feasible for an employer to provide breaks in quiet settings where the Veteran could collect himself during periods of reduced reliability and bouts of symptoms associated with his service-connected disabilities. As already discussed, the Veteran does not meet the schedular requirements for entitlement to a TDIU. And the evidence of record fails to reveal that exceptional circumstances exist which warrant consideration under 38 C.F.R. § 4.16(b). The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. 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. Accordingly, the grant of a TDIU on an extraschedular basis is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.