Citation Nr: 21066780 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-20 008 DATE: November 2, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss has been manifested by auditory acuity levels of no worse than Level I impairment in the right ear and Level I impairment in the left ear. 2. The Veteran's service-connected disabilities have not been shown individually or collectively to prevent substantially gainful employment at any time during the relevant period of appeals. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for service connection for TDIU have not met. 38 U.S.C. §§ 1110, 1117, 1131 (2012); 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1971 to September 1974 and from February 1977 to July 1978. This case comes to the Board from a rating decision by the VA Regional Office (RO). At a December 2019 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This case was previously before the Board in February 2020 and March 2021, at which times it was remanded for additional development. That development having been completed; this case is once again before the Board. It is noted that the issue of entitlement to service connection for left ear hearing loss was previously before the Board and remanded. In a June 2021 rating decision, the RO granted service connection for that condition effective from June 24, 2013, the same initial date of service connection for the service-connected right ear hearing loss. The RO found that the combined evaluation for the now service-connected hearing loss bilaterally was still 0 percent. As such, the issue of entitlement to service connection for left ear hearing loss is deemed resolved and shall not be discussed further. In the ensuing decision, the Board has recharacterized the issue of entitlement to and increased initial compensable evaluation for right ear hearing loss to include bilateral hearing loss on the basis that the rating criteria account for combined evaluations when both ears are service-connected. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. § Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. Where there is a question as to which of two disability 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. The Veteran's bilateral hearing loss is currently rated as 0 percent disabling under the General Rating Formula for Impairment of Auditory Acuity. 38 C.F.R. § 4.85, DC 6100. The severity of hearing loss is determined by comparison of audiometric test results with specific criteria. Id. Ratings of bilateral defective hearing range from 0 percent 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 as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. Id. The Schedule allows for audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, to rate the degree of disability from bilateral service-connected defective hearing. Id. In certain situations, the rating criteria provide for rating exceptional patterns of hearing impairment. If the pure tone threshold is greater than 55 decibels at each of four specified frequencies (1000, 2000, 3000, and 4000 Hertz), VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. If the pure tone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral and then elevate that numeral to the next highest numeral for consideration. Each ear is evaluated separately. 38 C.F.R. § 4.86. A review of outpatient treatment records show that the Veteran has been treated for bilateral hearing loss during the period of appeal. There have been no showings of auditory readings sufficient for VA rating purposes. The Veteran was provided with a VA examination in September 2014. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 65 70 LEFT 15 5 5 10 30 The right ear had a pure tone average of 39 and the left ear had a pure tone average of 13. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. It was noted that this condition produces trouble hearing in the employment setting and people have to repeat themselves. The Veteran was provided with an additional VA examination in March 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 75 80 LEFT 20 10 5 5 30 The right ear had a pure tone average of 44 and the left ear had a pure tone average of 13. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. It was noted that the Veteran's has trouble hearing certain voices. The Veteran was provided with an additional VA examination in June 2021. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 75 80 LEFT 25 20 15 20 40 The right ear had a pure tone average of 49 and the left ear had a pure tone average of 24. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. Again it was noted the Veteran's has trouble hearing certain voices. Based on the above, the Board finds that the Veteran's bilateral hearing loss only meets the criteria for a 0 percent evaluation throughout the appeals period. At the outset, the Board notes that a valid hearing examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and include a controlled speech discrimination test (Maryland CNC). See 38 C.F.R. § 4.85 (a). Only such valid speech discrimination testing was considered. VA examinations conducted show Level I hearing in each ear under Table VI, which results in a non-compensable rating under Table VII when combining Level I and Level I. Higher evaluations are warranted for worsened impairment of pure tone averages or speech recognition, but such have not been shown in the evidence of record. Accordingly, higher evaluations are not warranted. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a). Van Hoose, 4 Vet. App. At 361. The Veteran is service-connected for the following during the relevant period of appeals: a left shoulder disability at 50 percent during the entirety of the appeal period; tinnitus at 10 percent during the entirety of the appeal period; and bilateral hearing loss and a left shoulder scar, both noncompensable during the entirety of the appeal period. The Veteran's combined evaluation is 60 percent. They do not affect bilateral extremities; have a common etiology; affect a singly bodily system; are from combat injuries; or arise from prisoner of war status. Therefore, the schedular criteria are not met. See 38 C.F.R. § 4.16(a). Although the Veteran has not met the schedular requirement for TDIU throughout the period of appeal prior, the inquiry turns now to whether the service-connected disabilities render the Veteran unable to obtain or maintain substantially gainful employment to permit forwarding the Veteran's claim for extraschedular consideration by the Director of Compensation Service. On the VA Form 21-8940, submitted in June 2015, the Veteran indicated that she last worked full time in November 2013. She indicated that she last worked as a diesel mechanic instructor and that she had up to 1 year of college eduction. She further indicated that the pain from using her left shoulder in the course of her normal duties became too unbearable to continue that employment. A review of the Veteran's medical evidence of record, to specifically include periodic VA examinations administered for her service-connected disabilities throughout the period of appeal, have generally shown that the Veteran has sustained significant impacts on employability from her left shoulder in particular. However, it has generally been found that the Veteran would only be precluded from more physical intensive labor requiring use of the left shoulder. In this regard, the Veteran's September 2014 and March 2020 shoulder examinations found that she should avoid jobs requiring heavy lifting, reaching, pushing, and pulling. There was no discussion of preclusion for other physical jobs or sedentary employment. The Veteran's September 2014, March 2020, and June 2021 audiological examinations discussed above found that the Veteran's tinnitus had no effects on employment and that hearing loss would require others to speak up or repeat themselves, but otherwise they would not prevent employment. The Veteran's June 2019 scars examination found that there were no effects on employability. Social Security Administration records indicate that the Veteran was granted disability benefits on the basis of her left shoulder, but that finding appeared to be limited to a discussion of whether it prevented her employment as a mechanic and not other employment generally. As noted above, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining employability, the Veteran's level of education, special training, and previous work experience is for consideration. The Board is not persuaded that given the Veteran's level of education, special training, and previous work experience; her service-connected conditions render her unemployable. Rather, the evidence shows that the Veteran appears to have voluntarily left the work force, despite having capabilities that would make her marketable, such as her educational and instructional background that could translate into other or related fields in a more sedentary manner. At the very least, it is reasonable that accommodations could be made to limit use of the Veteran's left shoulder for duties and/or provide auditory enhancement, such as hearing aids, for the Veteran's bilateral hearing loss and tinnitus. The Board recognizes that the combined effects of the Veteran's service-connected disabilities are indeed significant. However, it is also noted that the Veteran is currently compensated at the requisite evaluations for those disabilities. The issue of TDIU is, thus, one in which the medical evidence must further bear out the fact that these disabilities singularly or collectively result in an inability to obtain or maintain substantially gainful employment. Based upon the evidence of record during the relevant period, the Board finds that while there is an effect on the Veteran's employability in more physically demanding sectors, sedentary or even light physically demanding employment does not appear to be precluded. (Sedentary work based on its commonly understood societal meaning is work requiring little physical exertion such as office work, white collar job, managerial, etc.) Rather, the evidence seems to suggest that the Veteran could decide to embark on employment in these less strenuous capacities, but she has chosen otherwise. For these reasons, the Board finds that the evidence of record does not show that the Veteran's service connected conditions preclude her from following a substantially gainful occupation. M. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.