Citation Nr: 21074224 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-25 008 DATE: December 14, 2021 ORDER For the period prior to October 12, 2020, entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is denied. As of October 12, 2020, entitlement to a disability rating in excess of 50 percent for bilateral hearing loss is denied. From September 16, 2016 through January 24, 2019, entitlement to a total disability rating based on individual unemployability (TDIU) as due to service-connected disabilities is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. For the period prior to October 12, 2020, the Veteran's hearing loss manifested as, at worst, Level VI hearing in one ear and Level VII hearing in the other. 2. As of October 12, 2020, the Veteran's hearing loss manifested as Level VIII hearing in both ears. 3. From September 16, 2016 through January 24, 2019, the Veteran meets the schedular requirements for entitlement to a TDIU as his service-connected disabilities all stem from a common etiology. 4. Prior to September 16, 2016, the Veteran's service-connected disabilities do not warrant referral to the Director, Compensation Services for extraschedular consideration. 5. Effective January 25, 2019, the Veteran is in receipt of a 100 percent combined disability rating due to service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to October 12, 2020, the criteria for a disability rating in excess of 30 percent for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. 2. From October 12, 2020, the criteria for a disability rating in excess of 50 percent for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, DC 6100. 3. From September 16, 2016 through January 24, 2019, the criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 4. From January 25, 2019, entitlement to a TDIU is moot. 38 U.S.C. § 5110; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was on active duty from August 1965 to August 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) December 2016 rating decision of the Agency of Original Jurisdiction (AOJ). In July 2020 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the July 2020 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. On remand, and in a March 2021 rating decision, the AOJ increased the disability rating assigned the Veteran's bilateral hearing loss to 50 percent effective October 12, 2020, the date of a VA examination showing a factually ascertainable increase in severity. 1. Prior to October 12, 2020, entitlement to a disability rating in excess of 30 percent for bilateral hearing loss 2. From October 12, 2020, entitlement to a disability rating in excess of 50 percent for bilateral hearing loss The Veteran claims that his service-connected bilateral hearing loss warrants increased disability ratings. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). As discussed further below, audiological examinations show that the Veteran displayed exceptional patterns of hearing loss per 38 C.F.R. § 4.86. In such instances, VA will apply either Table VI or Table VIa, depending on which one results in a higher rating. 38 C.F.R. § 4.85(h). The Veteran was seen for an audiometric examination in October 2016. The results of the examination are as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 65 75 80 80 75 84% Left 70 80 80 80 78 92% The results show that, at the time, the Veteran had exceptional patterns of hearing loss in both his ears. Under Table VI, the Veteran's right ear warrants a Level III rating, while under Table VIA it warrants a Level VI rating. Regarding the Veteran's left ear, Table VI shows that a Level II rating is warranted while under Table VIA Level VII hearing is applicable. Using Table VII, the combination of Level VI and Level VII hearing warrants a 30 percent disability rating. The Veteran's medical records show that on July 26, 2018, he was seen for an audiometric examination. The following results were reported: HERTZ 1000 2000 3000 4000 AVG CNC Right 55 70 70 70 66.25 NA Left 2 70 75 75 75 73.75 NA Based on the above, and using Table VIA, the Veteran had Level V hearing in the right ear and Level VI hearing in the left. Under Table VII, a combination of Level V and Level VI hearing warrants a 20 percent disability rating. The Veteran's next VA audiometric examination was on October 12, 2020. The results are as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 75 85 95 95 87.5 86% Left 80 85 96 90 87.5 78% As with his prior examinations, the Veteran has exceptional patterns of hearing loss in both his ears. Under Table VI, the Veteran has Level IV hearing in his right ear, and Level VIII under Table VIA. Table VI shows that the Veteran has Level V hearing in his left ear, while Table VIA assigns Level VIII hearing. Using Table VII, combining Level VIII hearing with Level VIII hearing warrants a 50 percent disability rating. The examiner noted that the Veteran has "profound" sensorineural hearing loss in both ears. Without "the benefit of amplification," the examiner determined that the Veteran "would be unable to easily communicate with others in an occupational environment." This would apply even in quiet situations, "as there is a degradation of speech processing in the auditory cortex." The Board notes that the October 12, 2020 VA audiological examination report adequately describes the effects of the Veteran's hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board acknowledges the Veteran's contentions and notes that he is competent to report his hearing difficulties. Jandreau v. Nicholson, 492 F.3d 1372 (2007). However, the disability ratings assigned for hearing loss are not contingent on whether the Veteran requires treatment such as hearing aids, but rather focuses on the functional impact of the Veteran's condition. This functional impact is taken into consideration with the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notwithstanding, a higher rating is not warranted based solely on lay statements. The probative medical evidence clearly shows that prior to October 12, 2020, the Veteran does not meet the schedular criteria for a disability rating in excess of 30 percent for his bilateral hearing loss. Furthermore, the probative medical evidence shows that as of October 12, 2020, the Veteran does not meet the schedular criteria for a disability rating in excess of 50 percent for his bilateral hearing loss. Furthermore, the Board finds that there has been no other diagnosed condition that is the cause of the Veteran's sensorineural hearing loss. There is no evidence in the Veteran's medical treatment records that show a diagnoses of otitis media, otitis externa, a peripheral vestibular disorder, Meniere's syndrome, a perforated tympanic membrane, or any other condition. As such, a separate disability rating under a different DC is not warranted. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has also considered the applicability of an extraschedular rating, and whether the Veteran's appeal should be referred to the Director, Compensation Service for consideration of an extraschedular rating. For the reasons discussed below, the Board finds that the Veteran does not present a unique disability picture that is not compensated by the applicable disability ratings table. At his numerous VA examinations, the Veteran summarized the functional impact of his hearing disability by saying has difficulties hearing, and that higher frequencies are more difficult for him to hear. The Board notes that the Veteran's higher frequency hearing ability, or lack thereof, has been measured in his audiological examinations. Furthermore, 38 C.F.R. § 4.85 generally, and Tables VI, VIA, and VII specifically, measure the severity of Veteran's ability to hear. Moreover, that type of functional impact is contemplated by the rating schedule. See Doucette, 28 Vet. App. at 369 (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). The Board recognizes the frustration the Veteran must experience regarding his hearing loss disability, and the impact it has on his day-to-day life. However, the effects of the Veteran's disability are fully contemplated by the applicable rating schedule. Id. The Board finds that the Veteran's bilateral hearing loss condition does not present a unique or unusual disability picture. As such, referral to the Director, Compensation Service for extraschedular consideration rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Based on the above, the Board finds that the Veteran's claims for a disability rating in excess of 30 percent for the period prior to October 12, 2020, and for a disability rating in excess of 50 percent from October 12, 2020, must be denied. For the above-stated reasons, the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 3. Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities The Veteran claims that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38C.F.R. §3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38C.F.R. §4.16 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38U.S.C. §5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38C.F.R. §§3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. 38C.F.R. §§4.1, 4.15; Van Hoose, 4Vet. App.at 363. The fact that a claimant 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 he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran has been in receipt of a 100 percent combined disability rating as of January 25, 2019. A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). A 100 percent combined disability rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). Therefore, entitlement to a TDIU is moot as a 100 percent schedular evaluation has been assigned for the Veteran's service-connected disabilities as of January 25, 2019. Prior to January 25, 2019, the Veteran was not in receipt of a 100 percent combined disability rating, and thus could possibly be entitled to a TDIU. For the reasons discussed below, the Board finds that from September 16, 2016 through January 24, 2019, the Veteran meets the schedular criteria. The Veteran filed a claim for a TDIU on September 15, 2016, so the applicable period under consideration is the one-year period prior to that date. See 38 C.F.R. § 3.400. At that time, the Veteran had a combined disability rating of 30 percent. His service-connected disabilities at the time were: coronary artery disease (10 percent); bilateral hearing loss (10 percent); and tinnitus (10 percent). The Veteran's erectile dysfunction, hypertension, and prostate cancer residuals were assigned noncompensable, or 0 percent, disability ratings for that period of time. From September 16, 2016, through February 27, 2017, the Veteran had a combined disability rating of 70 percent. His service-connected disability ratings at that time were: coronary artery disease (10 percent); bilateral hearing loss (30 percent); peripheral neuropathy of his right leg, sciatic nerve (20 percent); peripheral neuropathy of his right leg, femoral nerve (20 percent); diabetes mellitus type 2 (10 percent); and tinnitus (10 percent). The Veteran's hypertension, erectile dysfunction, and prostate cancer residuals all had noncompensable disability ratings. From February 28, 2017, through January 24, 2019, the Veteran had a combined disability rating of 80 percent. His service-connected disability ratings at that time were: coronary artery disease (30 percent); bilateral hearing loss (30 percent); peripheral neuropathy of his right leg, sciatic nerve (20 percent); peripheral neuropathy of his right leg, femoral nerve (20 percent); diabetes mellitus type 2 (10 percent); and tinnitus (10 percent). The Veteran's hypertension, erectile dysfunction, and prostate cancer residuals all had noncompensable disability ratings. For the period of September 16, 2016, through February 27, 2017, the Veteran was in receipt of a 70 percent combined disability rating. For that period of appeal, the Veteran had no single service-connected condition with a disability rating of at least 40 percent. Similarly, for the period of February 2017 to January 24, 2019, the Veteran had a combined disability rating of 80 percent. While for the period from September 16, 2016 through January 24, 2019 the Veteran had no single service-connected condition with a disability rating of at least 40 percent, the Board notes that the Veteran's diabetes and peripheral neuropathy of his bilateral lower extremities are due to a common etiology, and thus may be considered a single disability for TDIU consideration purposes. The Veteran graduated high school around 1963, and attended college briefly before his military service, though he never completed his degree. While he was in the military he trained in air conditioning and refrigeration servicing, and worked as an aircraft mechanic. After his military service, the Veteran worked as an aircraft engineer until around January 2008, when it appears his employment was terminated due to his employer downsizing their workforce. The Veteran last worked in 2011. At that time the Veteran was self-employed making racing saddles. The Veteran's medical record shows that he was capable of manual labor at least through 2016. A July 2016 medical assessment noted that he had "no obvious or reported difficulty in employment," and an August 2016 note found that the Veteran regularly "hauls feed" for barn animals and "works out" in the yard. A June 2017 medical note found that the Veteran "still can work in the yard." A November 2020 VA examination noted that the Veteran's heart conditions allowed him to perform activities such as yard work and brisk walking. Additionally, at that point the Veteran's heart disease had progressed to the point that the Veteran was only fit for "light duty, low stress conditions, [and] no strenuous activity or exercise." Furthermore, a November 2020 VA examination found that the Veteran's peripheral neuropathy was severe enough to leave him "unable to perform the fine motor tasks" necessary to continue making custom saddles. Furthermore, it affected the Veteran's ability to sustain prolonged standing or extended ambulation. A May 2021 independent vocational evaluation, conducted by Ms. Z.F., a non-VA vocational expert, found that the Veteran became "unable to secure and follow substantially gainful employment ... since at least 2016." This opinion was based on a review of the record as well as an interview with the Veteran. Regarding the Veteran's bilateral hearing loss, Mr. Z.F. stated that it "would prevent him from communicating effectively with others." However, as noted above, the symptoms and effects of bilateral hearing loss are fully contemplated by the rating schedule, and as such that does not present as an extraordinary disability picture. Doucette, 28 Vet. App. at 369. Continuing, Mr. Z.F. noted that the Veteran's coronary artery disease, specifically his symptoms of shortness of breath, chronic fatigue, chest pains, right-leg pain and numbness, among others, would "interfere with his ability to complete work tasks at a pace that is consistent with employer expectations." He indicated that his opinion was supported by the medical evidence of record alone and that lay evidence and his vocational interview with the Veteran only further substantiated his opinion. The Board finds this opinion to be consistent with the other relevant evidence of record and is thus, of significant probative weight. In addition to making a determination as to whether the Veteran is entitled to a schedular TDIU from September 16, 2016, the Board must also consider whether the Veteran's disability picture for the period prior to September 16, 2016, warrants a referral to the Director, Compensation Services for extraschedular consideration. After a review of the record, the Board finds that for the period prior to September 16, 2016, the Veteran's overall disability picture was not exceptional, and therefore referral to the Director, Compensation Services for extraschedular consideration is not warranted. While the Veteran did have significant impairments caused by his service-connected disabilities, the evidence of record does not reflect that the Veteran's service-connected disabilities manifested symptoms of such severity as to impact his employability beyond what is contemplated by the assigned schedular ratings during the period on appeal and as described above. The severity of the Veteran's service-connected symptomatology was specifically contemplated by his assigned evaluations, and referral to the Director, Compensation Services for extraschedular consideration is not warranted. Based on the Veteran's lay statements, as well as the relevant, competent, credible, and probative medical evidence on file, the Board finds that for the period of September 16, 2016 through January 24, 2019, the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. For the period of September 16, 2016 through January 24, 2019, the Veteran's claim for a total disability rating based on individual unemployability as due to service-connected disabilities is granted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, Associate 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.