Citation Nr: 21067660 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-51 892 DATE: November 4, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss for the period prior to August 6, 2021 is denied. Entitlement to an evaluation higher than 40 percent for bilateral hearing loss for the period from August 6, 2021 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from October 9, 2013 to May 25, 2021 is granted. Entitlement to special monthly compensation based on the statutory housebound rate is granted from October 9, 2013. FINDINGS OF FACT 1. Prior to August 6, 2021, the Veteran's bilateral hearing loss was manifested by no more than Level I hearing loss in the right ear and Level IV hearing loss in the left ear. 2. From August 6, 2021, the Veteran's bilateral hearing loss is manifested by Level VI hearing loss in the right ear and Level VIII hearing loss in the left ear. 3. For the period from October 9, 2013 to May 25, 2021, the Veteran was unable to obtain or retain substantially gainful employment due to his service-connected major depressive disorder. 4. In addition to TDIU based on his major depressive disorder alone, effective October 9, 2013, the Veteran has additional service-connected disabilities independently ratable as at least 60 percent disabling. CONCLUSIONS OF LAW 1. For the period prior to August 6, 2021, the criteria to establish a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100. 2. For the period from August 6, 2021, the criteria to establish an evaluation higher than 40 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100. 3. For the period from October 9, 2013 to May 25, 2021, the criteria to establish entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 4. From October 9, 2013, the criteria to establish SMC at the statutory housebound rate are met. 38 U.S.C. §§ 1114(s), 5103, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1974 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision by the Agency of Original Jurisdiction (AOJ) that granted service connection for right ear hearing loss and assigned a noncompensable evaluation, and denied service connection for left ear hearing loss. In December 2018, November 2020, and April 2021, the Board remanded the instant issues. In September 2021, the AOJ granted service connection for the Veteran's left ear hearing loss. The AOJ noted that this disability would be rated together with the Veteran's service-connected right ear hearing loss. The AOJ assigned a noncompensable evaluation prior to August 6, 2021, and a 40 percent evaluation from that date. Considering the grant of service connection for left ear hearing loss, that issue is no longer in appellate status. The Board has recharacterized the issue on appeal to reflect the grant of service connection for left ear hearing loss and the evaluation of bilateral hearing loss. The September 2021 rating decision also granted TDIU from May 26, 2021. However, the issue of entitlement to TDIU prior to that date remains pending in conjunction with the instant claim for increase. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018) (holding that once entitlement to TDIU is put in issue as part of a claim for a higher initial rating or increased rating and the RO grants TDIU that does not span the entire period on appeal, the issue of entitlement to TDIU for an earlier period is still on appeal). Therefore, as the issue of entitlement to TDIU has been raised and not granted in full, the issue of entitlement to TDIU for the period prior to May 26, 2021 remains on appeal. Evaluation of Hearing Loss Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a) and (d). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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 highest Roman numeral. 38 C.F.R. § 4.86. None of the examinations of record reflect a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz. Thus, § 4.86 does not apply. On VA examination in November 2014, the following puretone thresholds were recorded: HERTZ 1000 2000 3000 4000 Average RIGHT 20 15 55 55 36 LEFT 30 65 65 65 56 Speech discrimination scores were 92 percent on the right and 88 percent on the left. On VA examination in December 2020, the following puretone thresholds were recorded: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 70 65 48.75 LEFT 45 75 70 70 65 Speech discrimination scores were 94 percent on the right and 78 percent on the left. In August 2021, the following puretone thresholds were recorded: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 65 60 46.25 LEFT 45 70 70 70 63.75 Speech discrimination scores were 56 percent on the right and 44 percent on the left. Application of the regulation to the findings of the November 2014 VA examination results in a numeric designation of I for the right ear and II for the left. A noncompensable evaluation is warranted when those values are applied to Table VII. Application of the regulation to the findings of the December 2020 results in a numeric value of I for the right ear and IV for the left. A noncompensable evaluation is warranted when those values are applied to Table VII. Application of the regulation to the findings of the August 2021 VA examination results in a numeric designation of VI for the right ear and VIII for the left. A 40 percent evaluation is warranted when those values are applied to Table VII. Considering the above discussion, a compensable evaluation is not warranted for the Veteran's bilateral hearing loss prior to August 6, 2021. Moreover, for the period from August 6, 2021, an evaluation higher than 40 percent is not warranted. The Board does not doubt the sincerity of the Veteran's assertions regarding the severity of his hearing loss. However, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for the various levels of compensation. The more probative evidence consists of that prepared by skilled audiologists, and such evidence demonstrates that the currently assigned evaluations for the Veteran's hearing loss disability are appropriate. The evidence preponderates against a finding that higher evaluations are warranted. The appeal is accordingly denied. TDIU 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 Veteran's schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a 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 the period now being considered by the Board, the Veteran was in receipt of service connection for major depressive disorder, evaluated as 70 percent disabling from October 9, 2013, as 50 percent disabling from July 9, 2019, and as 70 percent disabling from December 9, 2020; sleep apnea, evaluated as 50 percent disabling; bilateral hearing loss, evaluated as noncompensably disabling from October 9, 2013 and as 40 percent disabling from August 6, 2021; tinnitus, evaluated as 10 percent disabling from October 9, 2013; choking sensation of unknown origin, evaluated as 10 percent disabling from October 9, 2013; and a left fifth finger disability and a right fourth finger disability, each evaluated as noncompensably disabling. His combined evaluation for compensation was 90 percent from October 9, 2013, 80 percent from July 9, 2019, and 90 percent from December 9, 2020. Thus, he meets the schedular criteria for consideration of TDIU under § 4.16(a) from October 9, 2013. In determining whether a Veteran can secure, follow, and maintain a substantially gainful occupation, the Board will consider the following factors: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran reports that he last worked in November 2012, and that from 1998 to 2012, he worked for a tree service as a transport driver. See May 2021 VA Form 21-8940. He also reports that he completed a graduate degree in criminal justice in 2019. Id. This degree was reportedly obtained from an online university. See February 11, 2020 VA treatment record. An October 2016 mental disorders Disability Benefits Questionnaire (DBQ) completed by R.W. Psy.D. indicates that the Veteran's depressive disorder was productive of occupational and social impairment with deficiencies in most areas. Dr. W. indicated that the Veteran's depression functionally impaired or limited sustainable work activity and had since his October 2013 claim. The report of an associated interview indicates the Veteran's report of weekly panic attacks, chronic sleep impairment, anxiety, nightmares, obsessional rituals, suicidal thoughts, irritability, impaired impulse control, and neglect of personal hygiene. Dr. W. concluded that, based on review of mental status examination and review of the record, the Veteran's symptoms were severe enough to completely disable and preclude him from sustaining gainful employment activity since the date of his October 2013 claim. Considering the above discussion, the Board concludes that, for the period from October 9, 2013 to May 25, 2021, TDIU is warranted. The record reflects that the Veteran worked as a transport driver for a tree service from 1998 to 2012. In 2016, Dr. W. concluded that the Veteran's psychiatric symptoms were severe enough to completely disable and preclude employment since the date of his October 2013 claim. While the Veteran has reported that he obtained a graduate degree in 2019, a psychologist reviewed the record in June 2021, presumably to include review the Veteran's occupational and educational history. She concluded that the Veteran would experience impairment due to work stress. She noted that this would include impairment with sedentary activities and those requiring sustained attention. Based on a complete review of the record, the Board concludes that the symptoms of the Veteran's service-connected psychiatric disorder are of such severity that they prevent him from maintaining substantially gainful employment during the period in question. As such, entitlement to TDIU is warranted from October 9, 2013, to May 25, 2021. SMC VA has a 'well-established' duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC pursuant to 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008). SMC will be payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the rating schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The United States Court of Appeals for Veterans Claims (Court) has held that although TDIU may satisfy the "rated as total" element of section 1114(s), TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In this case, the record establishes that the Veteran's major depressive disorder alone renders him unemployable, and the award of TDIU based on the Veteran's major depressive disorder alone satisfies the "rated as total" element of subsection 1114(s). Moreover, effective October 9, 2013, the Veteran is assigned a 50 percent evaluation for sleep apnea, a 10 percent evaluation for tinnitus, and a 10 percent evaluation for choking sensation of unknown origin. The combined evaluation of these disabilities is 60 percent. Thus, from October 9, 2013, the award of SMC at the statutory housebound rate is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.