Citation Nr: 21077115 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-20 676 DATE: December 28, 2021 ORDER The appeal for service connection for bladder cancer is dismissed. From February 7, 2013 and prior to January 26, 2021, an increased rating (in excess of 20 percent) for service-connected bilateral hearing loss is denied. From January 26, 2021, an increased rating (in excess of 40 percent) for service-connected bilateral hearing loss is denied. A total disability rating based on individual unemployability (TDIU) prior to January 1, 2015 is denied. FINDINGS OF FACT 1. In April 2021, prior to issuance of a Board decision, the Regional Office (RO) granted service connection for bladder cancer. Accordingly, the Board does not have jurisdiction to review this issue on appeal. 2. From February 7, 2013 and prior to January 26, 2021, the probative evidence, including a July 2013 VA audiological examination, supports a finding that the Veteran demonstrated a level III hearing acuity in the right ear and a level V hearing acuity in the left ear. 3. From January 26, 2021, the probative evidence, including a January 2021 VA audiological examination, supports a finding that the Veteran demonstrated a level VI hearing acuity in the right ear and a level VIII hearing acuity in the left ear. 4. The evidence indicates that the Veteran was gainfully employed from April 2003 to December 31, 2014; thus, his service-connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment prior to January 1, 2015. CONCLUSIONS OF LAW 1. No statements of errors of fact or law remain concerning service connection for bladder cancer, and the criteria for dismissal have been met. 38 U.S.C. §§ 7104 (a), 7105(d)(5); 38 C.F.R. § 20.101. 2. From February 7, 2013 and prior to January 26, 2021, the criteria have not been met for a rating in excess of 20 percent for bilateral hearing loss. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. 3. From January 26, 2021, the criteria have not been met for a rating in excess of 40 percent for bilateral hearing loss. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, DC 6100. 4. Prior to January 1, 2015, the criteria have not been met for a TDIU rating. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to December 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2013 Rating Decision by the Newark, New Jersey Department of Veterans Affairs (VA) RO. In November 2018, a hearing was held before the undersigned Veterans Law Judge and a transcript of the hearing is associated with the record. These matters were before the Board in June 2019 and were remanded for further development. 1. The appeal for service connection for bladder cancer is dismissed. While the case was in remand status, the Veteran was granted service connection for bladder cancer in an April 2021 rating decision. This rating decision was issued prior to the promulgation of a decision in the appeal by the Board. Therefore, there remain no statements of errors of fact or law for appellate consideration with regard to the claim of service connection bladder cancer. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. See 38 U.S.C. § 7105 (d)(5). 2. From February 7, 2013 and prior to January 26, 2021, an increased rating in excess of 20 percent for service-connected bilateral hearing loss is denied. Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal hearing and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the claimant's average hearing threshold. The average puretone threshold is derived from puretone audiometric testing in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Factual Background The Veteran was provided a July 2013 VA examination during which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 70 75 80 LEFT 25 45 75 90 90 The right ear average pure tone threshold was 62 with a speech discrimination score of 88 percent and the left ear average pure tone threshold was 75 with a speech discrimination score of 76 percent. The Veteran reported in a May 2013 statement and testified at the Board hearing that his hearing loss caused difficulties at work. Analysis The Board finds that from February 7, 2013 and prior to January 26, 2021, a rating in excess of 20 percent for service-connected bilateral hearing loss is denied. The right ear average pure tone threshold was 62 with a speech discrimination score of 88 percent and the left ear average pure tone threshold was 75 with a speech discrimination score of 76 percent. The results correspond to level III hearing loss in the right ear and a level V hearing loss in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, a designation of level V hearing in the poorer ear and level III hearing in the better ear yields a 10 percent evaluation. 38 C.F.R. § 4.85, DC 6100. The Veteran's lay statements and testimony have been considered in this decision. However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the current level of hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, a rating in excess of 20 percent from February 7, 2013 and prior to January 26, 2021 for bilateral hearing loss is denied. 3. From January 26, 2021, a rating in excess of 40 percent for service-connected bilateral hearing loss is denied. Factual Background The Veteran was afforded a January 2021 VA examination during which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 80 85 85 LEFT 35 55 85 100 95 The right ear average pure tone threshold was 74 with a speech discrimination score of 70 percent and the left ear average pure tone threshold was 84 with a speech discrimination score of 60 percent. Analysis The Board finds that from January 26, 2021, a rating in excess of 40 percent for service-connected bilateral hearing loss is denied. The right ear average pure tone threshold was 74 with a speech discrimination score of 70 percent and the left ear average pure tone threshold was 84 with a speech discrimination score of 60 percent. The results correspond to level VI hearing loss in the right ear and a level VIII hearing loss in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, a designation of level VIII hearing in the poorer ear and level VI hearing in the better ear yields a 40 percent evaluation. 38 C.F.R. § 4.85, DC 6100. Accordingly, a rating in excess of 40 percent from January 26, 2021 for bilateral hearing loss is denied. [CONTINUED ON NEXT PAGE] 4. A TDIU rating prior to January 1, 2015 is denied. Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility As of February 7, 2013, and prior to January 1, 2015, the Veteran is in receipt of a 60 percent rating for his now service-connected bladder cancer and thus he meets the criteria for schedular TDIU eligibility for the stated period on appeal. 38 C.F.R. § 4.16(a). Factual Background The Veteran reported on his May 2013 application for a TDIU rating that he was currently employed as an IT executive making $23,000 per month. The Veteran indicated that he had been working at this position since April 2008. Prior to this, the Veteran worked in IT management from April 2003 to April 2008 making $15,000 a month. The Veteran testified at the Board hearing that he stopped working in 2015 because his position was eliminated, otherwise he would still be working. The Veteran reported in a March 2021 request for employment information with claim for disability that his last day of work was December 31, 2014. The Veteran indicated that he lost four days over the past 12 months due to his service-connected disabilities. The Veteran indicated that he lost work time in previous years due to his treatment for bladder cancer, including time lost during diagnostic procedures, chemotherapy treatments and surgery. The Veteran also indicated that he was hospitalized on numerous occasions due to complications from his disability over the period from November 2004 through the remainder of his employment. The Veteran estimated that the total time lost over this period was more than 20 weeks. Analysis The evidence of record shows that the Veteran maintained substantial gainful employment from April 2003 to December 31, 2014. Although the Veteran missed time from work (even substantial amounts of time during some periods) due to his service-connected bladder cancer, nevertheless, the Veteran still managed to maintain substantial gainful employment. Given the above, the Board finds the probative evidence of record shows that the Veteran was gainfully employed until December 31, 2014, while earning wages above the poverty threshold. As such, a TDIU rating is not warranted prior to January 1, 2015. The Board is grateful for the Veteran's honorable service. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.