Citation Nr: 21067753 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-48 876 DATE: November 5, 2021 ORDER Entitlement to an initial compensable rating for the service-connected bilateral sensorineural hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on a schedular basis is denied. REMANDED Entitlement to a TDIU on an extraschedular basis is remanded. FINDINGS OF FACT 1. Audiometric testing shows that the Veteran's bilateral sensorineural hearing loss has been manifested by no worse than Level I in his right ear and Level I in his left ear. An exceptional hearing loss pattern was not shown in either ear. 2. The Veteran does not meet the schedular criteria for a TDIU because, although he has multiple service-connected disabilities and one of these disabilities is rated at 40 percent or more, his combined rating of his service-connected disabilities is less than 70 percent. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the service-connected bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a TDIU on a schedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for bilateral sensorineural hearing loss and assigned a noncompensable rating, effective March 4, 2013, for this disability. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In January 2021, the Board granted an initial 10 percent rating for the Veteran's service-connected hypertension and remanded the issues of entitlement to an initial compensable rating for the service-connected bilateral hearing loss and entitlement to a TDIU for further development. This matter has now returned to the Board. Previously, in March 2019, the Veteran perfected an appeal regarding the issues of entitlement to service connection for a back disability and a skin disability. In June 2021, the Veteran appeared before a different VLJ to provide testimony on these issues. As such, these issues will be addressed in a separate decision at a later date. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Initial compensable rating for service-connected bilateral sensorineural hearing loss In January 2021, the Board remanded this increased rating claim to obtain an updated and adequate VA examination. An examination was obtained in March 2021, which the Board finds such to be adequate and complete in its rendering. Accordingly, the Board finds there has been substantial compliance with the January 2021 Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran's entire history is reviewed when making a disability decision, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different findings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for hearing impairments are determined through a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, evaluation of bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a puretone audiometric test of puretone decibel thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz) with an average puretone threshold obtained by dividing these thresholds by four. The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory level is identified as the point where the percentage of speech discrimination and puretone threshold average intersect. Id. The regulations also provide that, in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, 4000 Hz) is 55 decibels or more, the Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Likewise, a Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be evaluated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). The Veteran contends that his service-connected bilateral sensorineural hearing loss warrants a compensable rating. Specifically, he reports that he has difficulty in conversation and often needs to ask for things to be repeated, even with his hearing aids. A September 2013 VA audiological examination provides the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 40 35 35 25 LEFT 30 30 25 20 These results show an average puretone threshold of 33.75 decibels in the Veteran's right ear and 26.25 decibels in his left ear. Speech recognition ability using the Maryland CNC Test was 96 percent in his right ear and 100 percent in his left ear. A pattern of exceptional hearing loss was not shown in either ear. 38 C.F.R. § 4.86. These audiometry test results equate to Level I hearing impairment in the Veteran's right ear and Level I hearing impairment in the left ear, using Table VI. 38 C.F.R. § 4.85. Based on the mechanical application derived from Table VII in 38 C.F.R. § 4.85, these levels result in a 0 percent rating. Another VA audiological examination is of record from August 2014, which provides the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 20 15 20 15 LEFT 15 5 10 10 These results show an average puretone threshold of 17.5 decibels in the Veteran's right ear and 10 decibels in his left ear. Speech recognition ability using the Maryland CNC Test was 96 percent in his right ear and 96 percent in his left ear. A pattern of exceptional hearing loss was not shown in either ear. 38 C.F.R. § 4.86. These audiometry test results equate to Level I hearing impairment in the Veteran's right ear and Level I hearing impairment in the left ear, using Table VI. 38 C.F.R. § 4.85. Based on the mechanical application derived from Table VII in 38 C.F.R. § 4.85, these levels result in a 0 percent rating. At the Veteran's May 2019 Board hearing, he testified that his bilateral hearing loss had worsened and, in the September 2019 Board decision, the matter was remanded to provide him an updated examination. Another VA examination was conducted in December 2019. However, the examination was inadequate as the examiner did not provide responses to puretone testing and indicated that test results were not valid for rating purposes. The examiner indicated that the audiometric testing results were inconsistent with organic hearing loss. The examiner did not provide speech recognition scores and indicated that the use of word recognition was not appropriate for the Veteran but failed to explain or provide reasoning for why testing could not be conducted. In any event, as the examination did not include puretone thresholds and did not include speech discrimination scores using the Maryland CNC word list, it is not adequate for rating purposes. 38 C.F.R. § 4.85(a). After the January 2021 Board remand, the Veteran was afforded a VA audiological examination in March 2021. (This examination report was completed and signed in April 2021.) The examination, which the Board finds to be adequate and complete in its rendering, provides the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 35 35 40 40 LEFT 30 35 35 35 These results show an average puretone threshold of 37.5 decibels in the Veteran's right ear and 33.75 decibels in his left ear. Speech recognition ability using the Maryland CNC Test was 100 percent in his right ear and 100 percent in his left ear. (A pattern of exceptional hearing loss was not shown in either ear. 38 C.F.R. § 4.86.) These audiometry test results equate to Level I hearing impairment in the Veteran's right ear and Level I hearing impairment in the left ear, using Table VI. 38 C.F.R. § 4.85. Based on the mechanical application derived from Table VII in 38 C.F.R. § 4.85, these levels result in a 0 percent rating. Given the sufficient medical evidence of record, the Veteran's bilateral hearing loss has not approximated the criteria for a compensable rating. Accordingly, an initial compensable rating is not warranted. In reaching this decision, the Board does not discount the difficulties the Veteran has with his hearing acuity. However, as noted above, schedular disability ratings for hearing loss are based on a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The audiometric examination results, when compared to the rating criteria, do not warrant a compensable rating. Accordingly, the Board finds that the preponderance of the evidence is against this claim, and it is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU on a schedular basis In January 2021, the Board remanded the Veteran's TDIU claim because it was inextricably intertwined with the grant of an initial 10 percent rating for his service-connected hypertension and with his remanded claim for an increased rating for his service-connected bilateral sensorineural hearing loss. The Board directed that the Veteran be provided with a copy of the VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, as well as noticed of the evidence and information necessary to substantiate a claim for a TDIU. The Veteran was sent this form and requisite information in February 2021, and he submitted a completed VA Form 21-8949 in March 2021. Thus, the Board finds there has been substantial compliance with the January 2021 Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that entitlement to a TDIU is warranted. Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran is service connected for posttraumatic stress disorder (rated 50 percent), tinnitus (rated 10 percent), hypertension (rated 10 percent), and bilateral sensorineural hearing loss (rated noncompensable), for a combined schedular rating of 60 percent. As the Veteran does not have one service-connected disability rated at 60 percent or more and as the combined rating of his service-connected disabilities is less than 70 percent, he does not meet the criteria for a TDIU on a schedular basis as a matter of law. Accordingly, the claim for a schedular TDIU must be denied. 38 C.F.R. § 4.16(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Notwithstanding this determination, the Board will address the issue of entitlement to a TDIU on an extraschedular basis in the Remand portion of this decision below. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), entitlement to a TDIU on an extraschedular basis may be considered. 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director for extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, there is no indication that the AOJ considered assigning a TDIU on an extraschedular basis, and referral to the Director of Compensation and Pension Service for consideration of a TDIU on an extraschedular basis has not been made. However, the Board finds that such referral is warranted. In addition to the Veteran's contentions regarding his inability to obtain or maintain substantially gainful employment, the VA medical examinations of record indicate that his disabilities limit his ability and support referral for extraschedular consideration. For example, in the September 2013 PTSD examination, his condition was found to result in occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In the December 2019 VA hypertension examination report, the examiner noted that the Veteran's hypertension impacts his ability to work as he experiences severe, acute episodes of dizziness, headaches, irritability, and an inability to concentrate. On a December 2019 VA medical opinion, the examiner indicated that the Veteran would be unable to perform sedentary work. At the December 2019 VA hearing loss examination, the Veteran reported that his bilateral hearing loss disability impacts his ability to work as he is unable to hear. Similar limitations were reported on the March 2021 VA examination report, as the examiner noted that the Veteran experienced difficulty hearing customers on the job (before leaving) and problems hearing even with hearing aids. Based on this evidentiary posture, there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). However, as explained above, the Board does not have the authority to assign an extraschedular TDIU in the first instance, and the Board will remand the claim for entitlement to a TDIU on an extraschedular basis for referral to the Director of Compensation Service in accordance with 38 C.F.R. § 4.16(b). Accordingly, this matter is REMANDED for the following: 1. Refer the issue of entitlement to a TDIU to the Director of Compensation and Pension Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Place a copy of the Director's decision in the claims file. 2. Adjudicate the Veteran's claim for a TDIU on an extraschedular basis. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). He is also advised that he has the right to submit additional evidence and argument with respect to these matters. (CONTINUED ON NEXT PAGE) Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.