Citation Nr: 21066219 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-32 997 DATE: October 29, 2021 ORDER Evaluation for bilateral hearing loss in excess of 30 percent prior to May 4, 2017, and in excess of 50 percent from that date, is denied. Total rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Prior to May 4, 2017, the Veteran's bilateral hearing was manifested by hearing acuity of no worse than Level VII in the right ear and no worse than Level VI in the left ear; from that date, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level IX in the right ear and Level VIII in the left ear. 2. There is no plausible evidence that service-connected disabilities preclude the Veteran from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an evaluation for bilateral hearing loss in excess of 30 percent prior to May 4, 2017, and in excess of 50 percent from that date, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for schedular TDIU or for referral for extraschedular TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1969. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned Veterans Law Judge during a July 2021 hearing. A transcript of the hearing is in the Veteran's e-folder. An October 2016 rating decision assigned a 30 percent evaluation to the Veteran's service-connected bilateral hearing loss, effective June 14, 2016, the date of his claim for an increased evaluation. The Veteran submitted a supplemental claim, VA Form 21-526b, for an increased evaluation on May 4, 2017. A June 2017 VA Hearing Loss and Tinnitus examination report constitutes new and material evidence received within one year of the October 2016 rating decision, and thus that decision did not become final. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. § 3.156 (b). A subsequent June 2017 rating decision assigned a 50 percent evaluation, effective May 4, 2017, the date of the Veteran's claim for an increased evaluation. This appeal originates from a June 2016 claim for increase. The Board observes that following the issuance of an April 2018 statement of the case (SOC), and after the issues on appeal were certified to the Board, additional VA CAPRI medical records were associated with the Veteran's e-folder. The Veteran waived initial agency of original jurisdiction consideration of such additional evidence, including, specifically, VA treatment records, during his July 2021 hearing. The Veteran also recently submitted additional medical records which were associated with his e-folder. Because these records were submitted by the Veteran and his VA Form 9 was submitted after February 2, 2013, waiver of AOJ consideration is not necessary. See 38 U.S.C. § 7105 (e) (providing that waiver of initial AOJ review of evidence submitted by the claimant or his representative to the AOJ or the Board is presumed in cases where the substantive appeal was filed after February 2, 2013.). Accordingly, the Board will proceed with adjudication. 1. Evaluation for bilateral hearing loss in excess of 30 percent prior to May 4, 2017, and in excess of 50 percent from that date. The Veteran contends that his bilateral hearing loss warrants a higher rating. His representative argues that the Veteran's most recent (i.e.,June 2017 ) VA Hearing Loss and Tinnitus examination did not reveal the true impact of the Veteran's hearing loss, especially his speech recognition ability. The Veteran had to guess during the speech discrimination portion and the examiner had to turn the volume up to the max beyond conversational tone. The representative also contends that the examiner told the Veteran that he was a candidate for implants because his hearing aids did not do the job anymore. See March 2018 VA Report of General Information (recounting an informal DRO hearing) and July 2021 hearing transcript. In addition, the representative contends that when the Veteran worked as a custodian at a university he had trouble with supervisors, students and faculty because his bilateral hearing loss prevented him from understanding what they were saying. As a result, he retired and quit because he just could not hear and it was causing complications. See July 2021 hearing transcript. Review of the June 2017 VA Hearing Loss and Tinnitus examination report reveals that all subjective and objective findings necessary for adjudication of the Veteran's claim were observed and recorded. Significantly, the examiner certified that use of the speech discrimination test was appropriate for each of the Veteran's ears. Thus, the Board finds the examination was complete and adequate, and use of the Veteran's speech discrimination scores is appropriate for rating purposes. Accordingly, a new examination is required. The Board observes that a July 2016 VA Hearing Loss and Tinnitus examination report reveals that the examiner certified that use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. that made combined use of puretone average and speech discrimination scores inappropriate. However, in such cases the Hertz decibel readings can be applied to Table VIA in order the properly evaluate the Veteran's hearing. See generally 38 C.F.R. § 4.85(a) (if there is an exceptional pattern of hearing loss, the requirements of § 4.85(a) regarding examination adequacy for rating purposes still apply). Turning to the applicable law, in general 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). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 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 pure tone 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 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Turning to outpatient treatment records, VA CAPRI records reflect that the Veteran underwent outpatient audiograms in April 2016, May 2017, and July 2018. The VA CAPRI records do not contain the corresponding audiogram charts. The Veteran has submitted audiogram charts that correspond by exact date to the relevant VA CAPRI records, and thus appear to be VA records. The submitted April 2016 audiogram chart does not provide speech recognition scores, or reveal bilateral exceptional patterns of hearing loss allowing for application of 38 C.F.R. § 4.85 table VIA. As a result, the Board finds that this audiogram chart may not be used to assign a VA disability rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. The May 2017 audiogram chart, which incidentally was conducted on May 4, the date of the Veteran's claim for an increased evaluation, includes speech recognition scores but does not identify the test used. The submitted July 2018 audiogram chart includes speech recognition scores but relates that a test other than the Maryland CNC test was used. Nevertheless, the May 2017 and July 2018 audiogram charts reveal bilateral exceptional patterns of hearing loss allowing for application of 38 C.F.R. § 4.85 table VIA. Specifically, the May 2017 pure tone thresholds, in decibels, were as follows: May 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 65 70 85 90 78 LEFT 55 70 80 85 73 Applying the results to Table VIA yields Level VII in the right ear and Level VI in the left ear. Entering these numeric designations to 38 C.F.R. § 4.85, Table VII, results in a 30 percent disability rating under Diagnostic Code 6100. The July 2018 pure tone thresholds, in decibels, were as follows: July 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 75 85 90 80 LEFT 60 75 85 95 79 Applying the results to Table VIA yields Level VII in each ear. Entering these numeric designations to 38 C.F.R. § 4.85, Table VII, results in a 40 percent disability rating under Diagnostic Code 6100. Turning to the Veteran's VA examinations, the report of the July 2016 VA Hearing Loss and Tinnitus examination relates that the Veteran reported functional impairments due to hearing loss. These consisted of family members not allowing him to babysit his small grandchildren because he could not be relied on to hear if they were in trouble and calling for him, inability to hear the house phone ringing and consequently missing phone calls that were work-related, and his wife complaining that he played the TV too loudly. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: July 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 65 70 85 90 78 92% LEFT 65 60 75 80 70 80% Because the examiner certified that use of the speech discrimination test was not appropriate for either ear because of language difficulties, inconsistent speech discrimination scores, etc., the Board will apply the Hertz decibel readings to Table VIA. See generally 38 C.F.R. § 4.85(a). Applying the results to Table VIA yields Level VII in the right ear and Level VI in the left ear. Entering these numeric designations to 38 C.F.R. § 4.85, Table VII, results in a 30 percent disability rating under Diagnostic Code 6100. The report of the June 2017 Hearing Loss and Tinnitus examination relates that the Veteran reported functional impairments due to hearing loss. He stated that if he was still working he would have trouble hearing workers and would probably be endangering coworkers, since he used to drive a forklift. He always had difficulties when any company came over or if he was in a group at a restaurant with background noise. He always had to have the television louder than normal. 38 C.F.R. § 4.10; Martinak, supra. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 85 95 105+ 89 46% LEFT 60 85 90 100 84 56% Applying the results to Table VI, the findings yield a numeric designation of Level IX in the right ear and Level VIII in the left ear. Entering the resulting numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in each ear. Applying the results to Table VIA yields Level VIII in each ear. Entering the resulting numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. Here, Table VI and VIA yield the same rating for each ear. Based on application of the rating criteria to the foregoing evidence, an evaluation for bilateral hearing loss in excess of 30 percent prior to May 4, 2017, and in excess of 50 percent from that date, is not warranted. The Board expressly acknowledges its consideration of the reports the Veteran made during the VA examinations, the informal DRO hearing and the July 2021 hearing regarding the effects of his bilateral hearing loss. He 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). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Thus, the rating criteria contemplate the functional impact that the Veteran describes. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what the assigned ratings consider. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the Board finds that the preponderance of the evidence is against an evaluation for bilateral hearing loss in excess of 30 percent prior to May 4, 2017, and in excess of 50 percent from that date. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. 2. TDIU. The Veteran submitted a claim for TDIU in June 2017 and contends that he cannot work due to his service-connected bilateral hearing loss. His representative contends that when the Veteran worked as a custodian at a university he had trouble with supervisors, students and faculty because his bilateral hearing loss prevented him from understanding what they were saying. As a result, he retired and quit because he just could not hear and it was causing complications. See July 2021 hearing transcript. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). For purposes of evaluating eligibility under 38 C.F.R. § 4.16 (a), disabilities of one or both upper/lower extremities, including the bilateral factor, will be considered one disability. 38 C.F.R. § 4.16 (a)(1). Veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). An extra-schedular TDIU may be assigned in exceptional cases to a Veteran who is found to be unemployable because of service-connected disabilities, but whose disabilities do not meet the percentage standards set forth in § 4.16(a). See 38 C.F.R. § 4.16 (b). The Board is required to obtain the decision by the Director, Compensation Service, (Director) before awarding extraschedular TDIU benefits in the first instance; however, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service-connected for bilateral hearing loss, evaluated as 30 percent disabling from June 14, 2016, and as 50 percent disabling from May 4, 2017; tinnitus, evaluated as 10 percent disabling from April 2014; scar, painful residual from left buttock surgery, evaluated as 10 percent disabling from July 2016; and scar, non-painful residual from left buttock surgery, evaluated as noncompensable from July 2016; the combined disability evaluation is 40 percent, from June 14, 2016, and 60 percent from May 4, 2017. Thus, the Veteran has not met the basic schedular requirements for consideration of TDIU at any time during the appeal period. 38 C.F.R. § 4.16 (a). Moreover, the record does not contain plausible evidence that the Veteran is unable to secure or follow a substantially gainful occupation solely due to his service-connected disabilities. As a result, referral for consideration of entitlement to a TDIU on an extraschedular basis is also not warranted under 38 C.F.R. § 4.16 (b). On the June 2011 VA Form 21-8940, the Veteran stated that he last worked fulltime, at Lock Haven University, on January 1, 2013. This was also the date he became too disabled to work. He had four years of high school education and no other education or training before or after he became too disabled to work. August 2017 correspondence to VA from the Social Security Administration relates that there were no medical records for the Veteran. A June 2017 VA Medical Opinion addresses the effects of the Veteran's hearing loss on his ability to function in an occupational environment. The Veteran had reported during his June 2017 VA examination that he "used to drive a fortlift" and would probably be endangering coworkers if he was still working. The medical opinion noted: "The Veteran's hearing loss would be a safety issue, both for himself and his coworkers. Due to the severity of his speech loss, he had difficulties conversing in all situations. His poor speech recognition made it difficult to understand conversations and directions. His hearing loss impacts his ability to localize where sounding was coming from, which can be a safety issue. The Veteran wore hearing aids, but reported that they made his tinnitus louder, therefore impacting his ability to hear. Even with hearing aids, the Veteran had difficulty hearing speech from a distance or if someone was behind him." The Board finds that this medical opinion is not plausible evidence that the Veteran's hearing loss renders him unable to secure and follow a substantially gainful occupation. It notes that the Veteran's hearing loss can be a safety issue by affecting his ability to localize sound, but does not specifically identify any other situations in which his hearing loss would be a safety issue. Given that the medical opinion provider also prepared the examination report, it can be inferred that the safety issue referred to is forklift operation. The Board notes that the Veteran last worked as a custodian for many years, not as a forklift operator. While the evidence suggests that operating a forklift is not advisable for safety reasons due to his reduced hearing, nothing in the record suggests that his hearing loss renders him unable to secure and follow a substantially gainful occupation. In fact, his last job as a custodian generally would not be considered to include operating a forklift and thus would appear to be a job that the Veteran could secure and follow despite his hearing loss. Further, July 2017 correspondence from the Veteran's last employer, Lock Haven University, and a safety assessment in a January 2021 private family practice outpatient treatment report indicates that the Veteran's hearing loss, including when considered with other service-connected disabilities, does not render him unable to secure and follow a substantially gainful occupation. The July 2017 correspondence from Lock Haven University relates that the Veteran had worked there as a custodian. No concessions were made to him by reason of age or disability. The Veteran stopped working there due to regular retirement. He last worked there January 25, 2013. The Board finds that this evidence does not support the Veteran's claim. It does not show that his service-connected hearing loss required any special employment considerations or accommodations, interfered with his ability to perform his job or caused him to quit or retire from his job. It does not show that he is unable to secure or follow a substantially gainful occupation solely due to his service-connected hearing loss. The January 2021 private family practice outpatient treatment report for a wellness visit includes a detailed Functional Ability and Safety section. This section includes a finding that the Veteran had no hearing difficulties. The Board finds that this evidence does not support the Veteran's claim. This finding, which would have been based on the Veteran's own report and/or the examiner's own observations, is inconsistent with the Veteran's assertions that his hearing loss is so severe that he is unable to secure or follow a substantially gainful occupation. It does not show that he is unable to secure or follow a substantially gainful occupation solely due to his service-connected hearing loss or with consideration of other service-connected disabilities. The Board finds that the Veteran's own assertions do not constitute medical evidence in support of this claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of this claim. Moreover, the July 2017 correspondence from Lock Haven University and the safety assessment in the January 2021 private family practice outpatient treatment report are inconsistent with the Veteran's assertions. The Board acknowledges that the Veteran's service-connected bilateral hearing loss does result in some occupational impairment. However, the 30 percent rating assigned prior to May 4, 2017, and the 50 percent rating assigned from that date, recognizes the industrial or commercial impairment resulting from this disability. Accordingly, the Board finds that the preponderance of the evidence fails to establish that there is plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due solely to service-connected disability. Therefore, referral for consideration of TDIU on an extraschedular basis is not warranted, and the appeal in this matter must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.