Citation Nr: 21076775 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-45 396 DATE: December 27, 2021 ORDER Throughout the period on appeal, a maximum 100 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to the regulations governing monetary awards. Entitlement to a rating in excess of 20 percent for the period prior to July 9, 2021 and a rating in excess of 30 percent for the period thereafter for bilateral hearing loss is denied. Entitlement to a total disability rating for individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate total occupational and social impairment. 2. Prior to July 9, 2021, the Veteran's bilateral hearing loss was manifested by hearing loss no worse than Level V in the right ear and Level VII in the left ear, with an exceptional pattern of hearing impairment. 3. From July 9, 2021, the Veteran's bilateral hearing loss was manifested by hearing loss no worse than Level V in the right ear and Level VII in the left ear, with an exceptional pattern of hearing impairment. 4. The Veteran's service-connected bilateral hearing loss and tinnitus do not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for a 100 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 20 percent for the period prior to July 9, 2021 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for a rating in excess of 30 percent for the period after July 9, 2021 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in September 2018. A transcript of the hearing is of record. These matters were previously before the Board in June 2019, August 2020, and April 2021 when they were remanded for further development. As will be explained below, the Veteran is being assigned a 100 percent rating for the entire appeal period for his service-connected PTSD. However, assignment of a total schedular rating does not automatically render a TDIU claim moot. In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no duplicate counting of disabilities. Bradley, 22 Vet. App. at 293; see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Therefore, during the period where the Veteran's PTSD has been evaluated as 100 percent, the Veteran could still be entitled to TDIU based on his other service-connected disabilities. Thus, the issue of entitlement to TDIU remains on appeal. Increased Ratings Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities 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. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. PTSD The Veteran contends he is entitled to a rating in excess of 50 percent for his service-connected PTSD. The Veteran's PTSD is rated under Diagnostic Code 9411. The General Rating Formula for Mental Disorders provides the following criteria: A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, for example, retention of only highly learned material or forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STAT. MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV). A score of 41 to 50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is appropriate where there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Although current mental health evaluations no longer use this assessment of functioning under the new DSM-5 criteria, the Veteran's case was originally certified to the Board prior to VA's amendment to the regulations adopting the use of DSM-5, and accordingly, the Veteran's claim is evaluated under the DSM-IV criteria, which does consider GAF scores. See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45,099 (effective Aug. 4, 2014) and March 2014 Form 8. The Board acknowledges that in Golden v. Shulkin, 29 Vet. App. 221 (2018), the United States Court of Appeals for Veterans Claims (Court) concluded that when assigning a psychiatric rating in cases where the DSM-5 applies, the Board should not use evidence of GAF scores, as the DSM-5 rejected use of those scores. However, as the Veteran's claim was pending before August 4, 2014, the DSM-IV criteria are applicable. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-96 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final) (providing that for all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, DSM-5 will apply). As such, to the extent the record contains any GAF scores, they will be considered. Turning to the evidence in this case, the record reflects that the Veteran received VA treatment for his PTSD. In February 2013, it was noted that the Veteran was alert and oriented. A May 2013 mental status examination report indicated that the Veteran was casually dressed, but his hair was disheveled, and that his speech was normal. In August 2013, the Veteran reported drinking alcohol. It was noted that he had good eye contact and clear, concise and relevant speech without psychotic material. He denied suicidal ideation and was not deemed a threat to himself or others. In November 2013, the Veteran underwent a VA examination. During the examination, the Veteran reported that he had relocated as he had begun to feel isolated living in the "country." He reported that he was generally satisfied in his new home, noting that his new neighbors did not bother him. The Veteran reported being involved in a romantic relationship for about one year and indicated that the relationship was going fairly well as she was very patient. He indicated that he did not feel particularly close with the woman. The Veteran reported having one daughter, from whom he is estranged, and indicated that he was also estranged from his brother and mother. Regarding his occupational history, the Veteran indicated that he had not worked since the early 1990s as he has difficulties getting along with others. As for his mental health history, he reported his current psychoactive medications included Mirtazapine, which he takes to help him sleep. The examiner indicated that the Veteran experienced recurrent distressing dreams of traumatic events, noting that the Veteran reported sleep impairment as a result of the dreams; intense psychological distress at exposure to cues that symbolize or resemble an aspect of the traumatic event, as he reported feeling stressed and aggravated; physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event, including heart racing; avoidance of activities, places, or people that arouse recollections of the trauma, including avoiding war movies and driving by the National Guard; markedly diminished interest or participation in significant activities as he is no longer interested in fishing; feelings of detachment or estrangement from others; difficulty falling or staying asleep; irritability or outbursts of anger; and exaggerated startle response from loud or unexpected noises. The examiner did not report any symptoms associated with the Veteran's PTSD. The examiner noted that the Veteran denied thought, plan, or intent for harm to self or others. Additionally, the examiner noted that the Veteran reported engagement in a number of functional activities, including weightlifting, working on classic cars, and remodeling his home. The examiner provided that the Veteran's GAF score was 63 and estimated that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In August 2014, L.M. provided a statement in which she reported witnessing the Veteran's sleep problems, noting that he jerks, twitches, and has muscle spasms while sleeping. She indicated that the Veteran has little patience when things do not go his way and recalled an incident where the Veteran threw a VCR because it was not working properly. On his August 2014 Notice of Disagreement, the Veteran reported that he does not spend any more time in public places than he has to because of difficulties being around others. In October 2014, L.M. provided another statement in which she reported the Veteran is always preoccupied as if he is in deep thought; that the Veteran did not want to be around others; and that the Veteran experienced flashbacks, avoidance, anxiety (and possibly anxiety attacks), and difficulty concentrating. She also noted that the Veteran was jumpy and angry. In a December 2015 statement, the Veteran reported an incident at a car show when a man made a smart remark about his age, noting that he could have easily killed the man. He reported that he was still in a relationship with his girlfriend but indicated that they did not live together and only saw each other on weekends because of his sleep issues. He also reported experiencing flashbacks. Additional VA treatment records indicate that the Veteran reported struggling with relationships most of his life, as noted in a December 2013 record. In February 2014, the Veteran reported issues with law enforcement. It was noted that his mood was euthymic, and his affect was appropriate. In March 2014, the Veteran reported problems with his romantic relationship, noting that he had been married three times. He also reported feeling disconnected and alone, noting that he did not "fit-in" and was a loner. In December 2014, the Veteran reported nightmares and sleep impairment but indicated that he was generally in a good mood. Notes from a mental status examination indicate the Veteran was dressed in casual attire with clothing that appeared neat and clean, was pleasant and engaged easily, and his mood was euthymic. An April 2015 note reflects that the Veteran confronted his provider after reading her therapy notes and was reportedly loud and hostile. A May 2015 mental status examination revealed the Veteran was dressed in casual attire, maintained good eye contact, engaged easily, was in an "upbeat" mood, had goal-directed thoughts, and impaired insight. It was also noted that he had denied suicidal ideation. A July 2016 record reflects that the Veteran had loud speech; appropriate, angry, and cooperative behavior; an agitated and angry mood; and paranoid thought content. There were no reports of hallucinations or suicidal or homicidal ideation. He reported jumping at loud noises; panic attacks; impairment of his short-term memory; disturbances of his mood, noting that he can get angry very quickly; and difficulty establishing and maintaining social relationships, as he has a lack of trust in others to the point of paranoia. An August 2016 note reflects that the Veteran had normal concentration and memory and was hypervigilant. It was also noted that he completely isolates himself, is often irritable and easily angered, and is persistently negative. Another note reflects he constantly checks the locks in his home. An April 2017 note indicates the Veteran had ruminating thought content. In June 2017, the Veteran reported increased anxiety and depression but denied suicidal and homicidal ideation. In a July 2019 VA treatment record, the Veteran described constantly being on guard as he explained that he is constantly looking around and watching the door. A June 2020 record reflects that the Veteran denied suicidal and homicidal ideation and feeling depressed or anxious. During a June 2017 hearing with a decision review officer, the Veteran reported an inability to work because of his PTSD symptoms. He also indicated that he did not have any social interactions. He stated that he was suspicious of others and had problems with his memory. He reported symptoms of depression but denied suicidal ideation. In August 2017, the Veteran underwent another VA examination. During the examination, the Veteran reported that his wife had passed in 2005 and that she was the only person that was important to him, noting that she did not have any siblings or family that would annoy him. He reported a friend with whom he had been involved in an "off and on" romantic relationship for nearly five years. He indicated that they had separated about a month prior but reconciled. He reported living alone and staying at home a lot. He reported that he only shops in the early morning when there are less people. The examiner indicated that the Veteran experienced nightmares; emotional reactivity to trauma triggers; avoidance of trauma triggers (avoiding war movies and outings to crowded or busy places); feeling distant from others largely because of difficulties trusting; difficulties experiencing positive emotionality; sleep impairment; night sweats; only going into public out of necessity and, when he does, sitting where he can watch the door; being weary of his surroundings; suspiciousness; worries about whether people will harm him; and exaggerated startle response (usually in reaction to loud and unexpected noises). The examiner noted that the Veteran's daily mood was content, his affect was characterized by a fairly marked reactivity of mood, that he becomes frustrated and irritated quickly, and described feelings of loneliness. He denied low energy and appetite disturbance. The Veteran denied suicidal and homicidal ideation and a history of suicide attempts. The examiner indicated that the Veteran's symptoms included anxiety, suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work. Notes on the Veteran's mental status revealed the Veteran was casually dressed; hygiene and grooming were inadequate as he appeared somewhat disheveled with apparently unbrushed hair, a stained overshirt, stained ball cap, and shirt unbuttoned down to upper abdomen. It was noted that he was irritable at times; was oriented; and had a euthymic mood and irritable affect. The examiner also noted that, at times, he laughed loudly and unexpectedly when the circumstances did not warrant that level of reaction; his attention and concentration were adequate; he had tangential speech but normal rate and volume; appropriate eye contact; thought content free of delusions; poor insight into symptoms and the impact on his functioning; and intact judgment. The examiner estimated that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. In February 2018, the Veteran underwent a private psychiatric evaluation. Following evaluation of the Veteran, Dr. J.L. reported that the Veteran's symptoms included depressed mood; anxiety; suspiciousness; panic attacks once per week; chronic sleep impairment; mild memory loss; impairment of short- and long-term memory; memory loss for names of close relatives, own occupation, or own name; flattened affect; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work; inability to establish and maintain effective relationships; suicidal ideation; and flashbacks. Dr. J.L. estimated that the Veteran's symptoms resulted in total occupational and social impairment. In September 2018, the Veteran testified at a Board hearing. During the hearing, the Veteran reported that he is often depressed but denied suicidal thoughts. He stated that he distanced himself from everyone, except his girlfriend, noting that he does not have friends and is isolated. He reported no interest in activities, including fishing. He reported experiencing flashbacks, irritability, and exaggerated startle response. In December 2019, the Veteran underwent another VA examination. Following clinical interview with the Veteran, the examiner noted that the Veteran's symptoms included anxiety, suspiciousness, chronic sleep impairment, mild memory loss (forgetting names, directions, or recent events), disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances (including work or a work-like setting). The examiner noted that the Veteran was alert and oriented in all spheres, cooperative, calm, and made appropriate eye contact. There was no unusual motor activity. The Veteran's general appearance was unremarkable, as he was casually dressed, and his overall grooming and hygiene were within normal limits. His mood was neutral with appropriate affect, speech was coherent with normal rate and tone, there was no delusional thought content, and no active suicidal or homicidal ideation. The Veteran's thought process was relevant with no tangentiality or preservation, there were no perceptual disturbances, and judgment was adequate. It was noted that the Veteran had trouble concentrating when asked to complete simple calculations. The examiner estimated that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Lastly, the examiner noted that the Veteran did not pose any threat of danger or injury to himself or others and that his symptoms negatively affected his ability to perform efficiently and communicate appropriately with others in a workplace setting. In September 2020, S.L., a social worker, submitted a statement regarding the Veteran's symptoms which indicated that he experienced insomnia, severe night sweats, nightmares, intrusive thoughts, blunted affect, inability to trust, hypervigilance, hyper-startle response, and disconnection from others. S.L. noted that the symptoms affect the Veteran's ability to engage in normal life routines, such as spending time with family and friends. S.L. noted that the Veteran had been through three marriages and multiple girlfriends over his life due to his inability to deal effectively with his symptoms. Additionally, S.L. noted that the Veteran was unemployable as a result of his symptoms. Finally, in July 2021, the Veteran underwent an additional VA examination. During the examination, the Veteran reported that he married his first wife in 1968 but they split when he returned from Vietnam; that he married his second wife in 1973 and they have a daughter together; and that he married his third wife in 1994 but she died in 2005. The Veteran reported being happy in his third marriage. He also reported that he was currently single, noting that he had a girlfriend a year ago, but the relationship ended because of his PTSD symptoms. He reported that he lives alone and had been retired since 1994. He indicated that he does not have a good relationship with his daughter. The examiner indicated that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short and long-term memory, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances including work. The examiner also indicated that the Veteran was casually dressed in appropriate attire; had good hygiene; was alert and cooperative; and maintained steady eye contact. There were no problems with concentration or attention; he was pleasant and cordial; his speech was within normal limits; his thoughts were logical, organized, and without evidence of a thought disorder; his insight and judgment were intact; and he was oriented. The examiner estimated that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. After review of the evidence of record, the Board finds the evidence demonstrates that the Veteran's symptomatology during the entire period on appeal most closely reflects symptoms resulting in total occupational and social impairment. The record reflects that the Veteran has had total occupational impairment as the evidence of record reflects that he has not been employed since the early 1990s as a result of his PTSD symptoms. Specifically, the November 2013 VA examiner noted that the Veteran has not worked because of his difficulty getting along with others. In addition, the December 2019 VA examiner noted that the Veteran has difficulty adapting to stressful circumstances, including work, and noted that his PTSD symptoms may negatively affect his ability to perform efficiently and communicate appropriately and effectively with others in a workplace setting on a consistent basis. Lastly, social worker S.L. reported that the Veteran was unable to work. The record also reflects that the Veteran has had total social impairment due to his PTSD symptoms. For example, an August 2016 VA treatment record reflects that the Veteran has no social interactions and completely isolates himself. In addition, in September 2020, social worker S.L. reported that the Veteran was disconnected from others and that his symptoms affected his ability to engage in normal life routines, such as spending time with family and friends. Furthermore, the record reflects that the Veteran had been married three times and has had multiple romantic relationships due to an inability to deal effectively with his PTSD symptoms. Lastly, the Veteran has reported that he does not have a relationship with family members, including his mother, brother, and daughter. Therefore, resolving any doubt in the Veteran's favor, the Board finds that the Veteran's symptoms more nearly approximate the criteria for the assignment of a 100 percent rating because the record shows total occupational and social impairment during the entire period on appeal. 2. Bilateral Hearing Loss The Veteran's bilateral hearing loss has been assigned a 20 percent rating prior to July 9, 2021 and a 30 percent rating thereafter. In evaluating hearing loss, disability ratings for a hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz cycles per second (Hertz or Hz). The Rating Schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, which addresses exceptional patterns of hearing impairment, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the numeric designation Level for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the numeric designation Level 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 higher level. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Prior to July 9, 2021 The evidence for this period reflects that the Veteran underwent a VA examination for hearing loss in March 2014. The puretone thresholds, in decibels, are recorded as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 65 65 65 59 LEFT 80 80 80 90 83 The Veteran's Maryland CNC speech discrimination test revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear. Application of the March 2014 puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral III in the right ear and Roman Numeral V in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a 10 percent rating should be assigned. However, given that the puretone thresholds were 55 decibels or more at all of the frequencies in the left ear, the Veteran had an exceptional pattern of hearing impairment in the left ear according to 38 C.F.R. § 4.86(a). As such, Table VIA will also be used for rating purposes for the left ear. Using Table VIA, the Rating Schedule shows Level VII hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. As Table VIA results in a higher level of hearing acuity in the left ear, the Roman Numeral designation level found under Table VIA will be used for the left ear. Therefore, application of the resulting Roman Numeral VII for the left ear and Level III for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent rating. In February 2016, the Veteran underwent an additional VA examination. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 70 65 70 64 LEFT 80 75 80 80 79 The Veteran's Maryland CNC speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. Application of the February 2016 puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral II in the right ear and Roman Numeral III in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a noncompensable rating should be assigned. However, given that the puretone thresholds were 55 decibels or more at all of the frequencies in the left ear, the Veteran had an exceptional pattern of hearing impairment in the left ear according to 38 C.F.R. § 4.86(a). As such, Table VIA will also be used for rating purposes for the left ear. Using Table VIA, the Rating Schedule shows Level VII hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. As Table VIA results in a higher level of hearing acuity in the left ear, the Roman Numeral designation level found under Table VIA will be used for the left ear. Therefore, application of the resulting Roman Numeral VII for the left ear and Level II for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent rating. In August 2017, the Veteran underwent an additional VA examination. However, the examiner reported that the test results were inconsistent and that there was poor test reliability. Thus, the examiner explained that the results were considered invalid and unreliable and, therefore, were not reported. Thus, the results of this examination will not be discussed further. In October 2017, the Veteran underwent a private audiological evaluation, which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 50 60 65 56 LEFT 65 65 70 70 68 However, in a statement received in November 2020, the private clinician reported that speech discrimination testing was completed using the W-22 word list, rather than the Maryland CNC word list, so the speech discrimination test results are inadequate for rating purposes. See 38 C.F.R. § 4.85(a). Additionally, there is no indication from the audiometry report that speech discrimination testing using the Maryland CNC word list was not appropriate due to such reasons as language difficulties or inconsistent speech discrimination scores; thus, Table VI is not for application. While the puretone thresholds reflect an exceptional pattern of hearing impairment in the left ear according to 38 C.F.R. § 4.86(a), an exceptional pattern was not shown in the right ear. Thus, Table VIA cannot be used to rate the Veteran's hearing impairment. As neither Table VI nor Table VIA can be used, the results of the October 2017 private evaluation are not valid for rating purposes. In September 2018, the Veteran underwent a VA audiological evaluation which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 70 60 65 61 LEFT 75 70 65 70 70 The Veteran's Maryland CNC speech discrimination test revealed speech recognition ability of 80 percent in the right ear and 84 percent in the left ear. Application of the September 2018 puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral IV in the right ear and Roman Numeral III in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a 10 percent rating should be assigned. However, given that the puretone thresholds were 55 decibels or more at all of the frequencies in the left ear, the Veteran had an exceptional pattern of hearing impairment in the left ear according to 38 C.F.R. § 4.86(a). As such, Table VIA will also be used for rating purposes for the left ear. Using Table VIA, the Rating Schedule shows Level VI hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. As Table VIA results in a higher level of hearing acuity in the left ear, the Roman Numeral designation level found under Table VIA will be used for the left ear. Therefore, application of the resulting Roman Numeral VI for the left ear and Level IV for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent rating. Finally, in December 2019, the Veteran underwent an additional VA examination, which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 70 75 65 66 LEFT 75 75 75 80 76 The Veteran's Maryland CNC speech discrimination test revealed speech recognition ability of 82 percent in the right ear and 74 percent in the left ear. Application of the December 2019 puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral IV in the right ear and Roman Numeral VI in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a 20 percent rating should be assigned. However, given that the puretone thresholds were 55 decibels or more at all of the frequencies in both ears, the Veteran had an exceptional pattern of hearing impairment according to 38 C.F.R. § 4.86(a). As such, Table VIA will also be used for rating purposes. Using Table VIA, the Rating Schedule shows Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. As Table VIA results in a higher level of hearing acuity in the right ear, the Roman Numeral designation level found under Table VIA will be used for the right ear. (Table VIA resulted in the same level of hearing acuity in the left ear as Table VI). Therefore, application of the resulting Roman Numeral V for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent rating. After review of the evidence during this period, the Board finds the audiometric findings do not reflect hearing impairment that would warrant a rating in excess of 20 percent. The Board has considered any lay evidence provided by the Veteran. The Veteran 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). Hence, the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 20 percent for bilateral hearing loss for the period prior to July 9, 2021. From July 9, 2021 The evidence for this period reflects that the Veteran underwent a VA examination in July 2021, which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 65 70 65 65 LEFT 75 80 85 80 80 The Veteran's Maryland CNC speech discrimination test revealed speech recognition ability of 76 percent in the right ear and 70 percent in the left ear. Application of the July 2021 puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral IV in the right ear and Roman Numeral VI in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a 20 percent rating should be assigned. However, given that the puretone thresholds were 55 decibels or more at all of the frequencies in both ears, the Veteran had an exceptional pattern of hearing impairment according to 38 C.F.R. § 4.86(a). As such, Table VIA will also be used for rating purposes. Using Table VIA, the Rating Schedule shows Level V hearing acuity in the right ear and Level VII hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. As Table VIA results in a higher level of hearing acuity for both ears, the Roman Numeral designation level found under Table VIA will be used. Therefore, applying the resulting Roman Numeral V for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent rating. After review of the evidence during this period, the Board finds the audiometric findings do not reflect hearing impairment that would warrant a rating in excess of 30 percent. The Board has considered any lay evidence provided by the Veteran. The Veteran 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, 3 Vet. App. 345. Hence, the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 30 percent for bilateral hearing loss for the period after July 9, 2021. The Board notes that the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, which includes difficulty hearing when there is background noise and an inability to hear well without the use of hearing aids, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Based on the foregoing discussion, the Board finds a preponderance of the evidence is against finding that the Veteran is entitled to a rating in excess of 20 percent for the period prior to July 9, 2021 and a rating in excess of 30 percent for the period thereafter for bilateral hearing loss. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or, multiple disabilities incurred as a prisoner of war. Id. The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The United States Court of Appeals for Veterans Claims (Court) recently held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person." Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Here, the Veteran has the following service-connected disabilities: PTSD (rated at 100 percent); tinnitus (rated at 10 percent); and bilateral hearing loss (rated at 20 percent prior to July 9, 2021 and at 30 percent for the period thereafter). However, since the Veteran is already receiving a maximum rating for PTSD, it cannot be considered in determining whether he is entitled to TDIU, including when determining whether he meets the schedular criteria under § 4.16(a), as that would result in duplicate counting of disabilities. Thus, only his tinnitus and bilateral hearing loss can be considered when determining entitlement to TDIU. Based on those disabilities, the Veteran does not meet the schedular requirements for TDIU. As such, the Board must first determine whether referral for an extraschedular evaluation is warranted by determining whether there is "sufficient evidence to substantiate a reasonable possibility" that the Veteran is unemployable by reason of his service-connected bilateral hearing loss and tinnitus. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); Snider v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 2050, No. 19-6707 (Nov. 19, 2021). Turning to the evidence, the Veteran reported on his December 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, that he was unable to work because of his PTSD and tinnitus. He also reported having a high school education and no other education or training. He indicated that he last worked full-time and became too disabled to work in 1994. In March 2014, a VA examiner opined that the Veteran's hearing loss and tinnitus should not prevent him from obtaining and performing employment for which he is otherwise qualified. In February 2016, the Veteran underwent a VA Hearing Loss and Tinnitus examination. The examiner indicated that the Veteran's hearing loss impacted ordinary conditions of daily life, including his ability to work, as the Veteran reported having a hard time hearing in the presence of background noise and having to turn the television up loud. The examiner indicated that the Veteran's tinnitus had no impact on his ordinary conditions of life, including his ability to work. On a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, received in August 2019, the Veteran reported that he was unable to work because of his PTSD, which affects his ability to work with others. He indicated that his last employment was as a truck driver and that he was self-employed. In a December 2019 statement, the Veteran reported that he was self-employed when he last worked but ended the business because of his nerves. He reported that he could not work because of his PTSD, noting that he cannot deal with the public or being around others. He indicated that his hearing loss does not help with his situation. In December 2019, a VA examiner indicated that the Veteran's hearing loss alone should not be a barrier to a wide range of employment settings. The examiner noted that with amplification and reasonable accommodations as specified in the Americans with Disabilities Act, his hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. She indicated that employment would be more than feasible in a loosely supervised situation, requiring little interaction with the public. The examiner noted that the Veteran may have trouble working well in very noisy environments and in environments which require he use communications equipment (such as speakers, intercoms, etc.) or in jobs which require a great deal of attention to high-pitched sounds (such as monitoring medical equipment or other "beeps" and "pings"). Regarding his tinnitus, the examiner indicated that the Veteran reported his tinnitus affected every aspect of his daily living. In July 2021, the Veteran underwent a VA examination and the examiner indicated that the Veteran's hearing loss impacted his ordinary conditions of daily life, including ability to work, as the Veteran reported he cannot hear well without his hearing aids and has problems hearing people in public. The Veteran reported that his tinnitus impacted his ordinary conditions of life as it is annoying. First, the Board concludes that referral for an extraschedular rating is not warranted as there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected bilateral hearing loss and tinnitus. As outlined above, although the evidence reflects that the Veteran's bilateral hearing loss and tinnitus affect his ability to work as it causes him to have trouble hearing in the presence of background noise, the evidence does not substantiate a reasonably possibility that these disabilities cause him to be unemployable. The Board, in particular, places great weight of probative value on the December 2019 VA examiner's opinion that the Veteran's hearing loss would not be a barrier to a wide range of employment settings as it reflects thorough consideration of the Veteran's hearing loss on his ability to be employed. The other evidence of record also does not indicate that his hearing loss and tinnitus cause him to be unemployable. Thus, referral for an extraschedular rating is not warranted. Next, the Board finds a preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss and tinnitus preclude him from obtaining or maintaining substantially gainful employment. While the evidence of record does indicate that the Veteran was unable to work, his inability has been primarily attributed to his PTSD symptoms, which cannot be considered in determining whether he is entitled to TDIU, as he is already receiving a maximum 100 percent rating for PTSD. Furthermore, medical evidence of record, including the March 2014 and December 2019 VA examination reports, reflect that the Veteran's hearing loss and tinnitus would not impact his ability to secure and engage in all types of employment at any exertional level. Finally, the Board acknowledges the Veteran's reports that his hearing loss and tinnitus impact his ordinary conditions of life, including work, but find his reports detailing how the conditions impact his life would not prevent him from securing or engaging in employment. Based on the foregoing, the Board finds a preponderance of the evidence is against finding the Veteran's bilateral hearing loss and tinnitus prevent him from securing or following a substantially gainful occupation. Therefore, entitlement to TDIU is denied. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.