Citation Nr: 21007448 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-21 233 DATE: February 9, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Since the effective date of the grant of service connection, the Veteran’s bilateral hearing loss has manifested by no more than Level II hearing impairment in the right and left ears. 2. During the period on appeal, the preponderance of the evidence does not show that the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to August 1972 and from June 1974 to June 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to appear for a videoconference hearing in June 2017 before a Veterans Law Judge. However, in a May 2017 correspondence the Veteran indicated his desire to waive his right to testify at a hearing. Accordingly, the hearing request is deemed withdrawn. By way of history, a November 2011 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective March 1, 2011; granted service connection for tinnitus with a 10 percent evaluation, effective March 1, 2011; and denied service connection for the Veteran’s respiratory condition (claimed as asthma). Entitlement to a TDIU was determined to have been raised by the record in the March 2018 Board remand. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In May 2019, the RO issued a rating decision denying the Veteran’s entitlement to TDIU. Also, in May 2019, the RO issued a supplemental statement of the case (SSOC), continuing the Veteran’s noncompensable bilateral hearing loss rating, and continuing its denial of the Veteran’s claim for service connection for a respiratory disorder. In June 2019, the Veteran opted the respiratory claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a timely VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), electing the hearing option, identifying the January 2020 SSOC. Accordingly, the respiratory claim is proceeding separately in an AMA appeal, awaiting a hearing, and will be addressed by the Board in a later decision. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The 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 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran’s service-connected bilateral hearing loss is currently evaluated as noncompensable pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran generally seeks an increased rating for his bilateral hearing loss disability, although he has not put forth any specific contentions as to why he believes he is entitled to a higher rating. In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. 38 C.F.R. § 4.85(a). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I for essentially normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is then used to determine the percentage evaluation by intersecting the Roman numeral designations (from Table VI) for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Exceptional patterns of hearing impairment are evaluated under the provisions of 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In September 2011, the Veteran underwent a VA audiological examination. The results of the puretone thresholds testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 15, 20, 25, and 45 dB, respectively, for an average over the four frequencies of interest of 26.25 dB. Test results of puretone thresholds were in the left ear at 1000, 2000, 3000, and 4000 Hz of 10, 20, 30, and 50 dB, respectively, for an average over the four frequencies of interest of 27.5 dB. Speech discrimination scores on the Maryland CNC word list was 100 percent in both ears. Upon examination, the Veteran described the functional impact of difficulty hearing in the presence of background noise. The results show that the Veteran does not have exceptional hearing in either ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the September 2011 measurements result in the assignment of Roman Numeral I in the right ear and Roman Numeral I in the left ear. A noncompensable evaluation is derived from the application of Table VII of 38 C.F.R. § 4.85. In April 2014, the Veteran was afforded an additional audiological examination. The results of the puretone thresholds testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 15, 35, 45, and 70 dB, for an average over the four frequencies of interest of 41.25 dB. Test results of puretone thresholds were in the left ear at 1000, 2000, 3000, and 4000 Hz of 15, 35, 45, and 80 dB, for an average over the four frequencies of interest of 43.75 dB. Speech discrimination scores on the Maryland CNC word list was 84 percent for both ears. Upon examination, the Veteran described the functional impact of his bilateral hearing loss as having difficulty hearing background noise and in watching the television at normal listening levels. The results show that the Veteran does not have exceptional hearing in either ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the April 2014 measurements result in the assignment of Roman Numeral II in the right ear and Roman Numeral II in the left ear. A noncompensable evaluation is derived from the application of Table VII of 38 C.F.R. § 4.85. A May 2016 VA audiology assessment reflects the Veteran’s hearing as normal in his right ear through 2000 Hz sloping from mild to moderate high-frequency sensorineural hearing loss (SNHL), and hearing in the left ear as normal through 1000 Hz sloping from mild to moderate/severe high-frequency SNHL. Word recognition testing was conducted with 100 percent for the right ear and 96 percent for the left ear. The Veteran’s reports of gradual progressive hearing problems, specifically noting problems in background noise and hearing when people are turned away from him was also noted. However, given that the audiologist did not indicate the type of test used, it cannot be considered for rating purposes. 38 C.F.R. § 3.385. In July 2016, the Veteran was afforded an additional audiological examination. The results of the puretone thresholds testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 25, 30, 30, and 60 dB, for an average over the four frequencies of interest of 36.25 dB. Test results of puretone thresholds were in the left ear at 1000, 2000, 3000, and 4000 Hz of 25, 30, 50, and 85 dB, for an average over the four frequencies of interest of 47.5 dB. Speech discrimination scores on the Maryland CNC word list were 96 percent for the right ear and 100 percent for the left ear. Upon examination, the Veteran described the functional impact of his bilateral hearing loss as having difficulty hearing conversational speech. The results show that the Veteran does not have exceptional hearing in either ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the July 2016 measurements result in the assignment of Roman Numeral I in the right ear and Roman Numeral I in the left ear. A noncompensable evaluation is derived from the application of Table VII of 38 C.F.R. § 4.85. In a December 2017 lay statement, the Veteran contended that a hearing test does not adequately portray the severity of his condition due to its having been conducted in the sterile quiet of an audiology booth and does not reflect the severity of his condition in the aspect of normal, daily life. The Veteran further contended that the severity of his condition warrants a higher rating. In February 2019, the Veteran underwent a new audiological examination. The results of the puretone thresholds testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 25, 30, 45, and 60 dB, for an average over the four frequencies of interest of 40 dB. Test results of puretone thresholds were in the left ear at 1000, 2000, 3000, and 4000 Hz of 25, 40, 50, and 75 dB, for an average over the four frequencies of interest of 48 dB. Speech discrimination scores on the Maryland CNC word list were 90 percent in the right ear and 84 percent in the left ear. Upon examination, the Veteran described the functional impact of his bilateral hearing loss as having difficulty understanding speech in noise without amplification. The results show that the Veteran does not have exceptional hearing in either ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the February 2019 measurements result in the assignment of Roman Numeral II in the right ear and Roman Numeral II in the left ear. A noncompensable evaluation is derived from the application of Table VII of 38 C.F.R. § 4.85. The Board notes that the September 2011, April 2014, July 2016, and February 2019 VA examinations provide the only audiometric findings of record during the period on appeal. Moreover, the Veteran's private and VA treatment records do not contain any findings relevant to his hearing loss disability. Based on the above medical and lay evidence of record, the Board does not find that a compensable rating for bilateral hearing loss is warranted at any time during the period on appeal. In making this finding, the Board is sympathetic to the Veteran's contention that his hearing loss is more severe than currently rated. However, the Board must consider the Veteran's description of his service-connected disability in conjunction with the clinical evidence of record and the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology results of record. As described above, the VA audiological test results, the only audiometric tests of record during the relevant period, when applied to the rating criteria, show that the Veteran is not eligible for a compensable rating at any time. The Board notes that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). As discussed above, the September 2011, April 2014, July 2016, and February 2019 VA examiners noted the functional impact caused by the Veteran’s hearing loss as reported by the Veteran. The Board finds that such functional impairment, in addition to the Veteran's other lay statements of record, has been appropriately considered; however, the overall evidence, as previously discussed, fails to support the assignment of an increased rating. Furthermore, the Veteran's reported functional limitations are manifestations of decreased hearing acuity, which is already contemplated by the schedular rating criteria for hearing loss. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech. The Board notes that this conclusion is consistent with the United States Court of Appeals for Veterans Claims' holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria."). The Board further finds that other than difficulty hearing or understanding speech, the record contains no evidence of other symptoms attributable to the service-connected hearing loss. Accordingly, the effects the Veteran has described do not show an exceptional or unusual disability picture such that referral of this claim to the appropriate officials for consideration of an extra-schedular rating is warranted. See C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). Further, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran could be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions failed to capture all the impacts experienced. However, effective January 8, 2018, consideration of an extraschedular rating based on the collective impact of two or more service connected disabilities, as set out in Johnson, is no longer permitted. See Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830 (Dec. 8, 2017) (to be codified at 38 C.F.R. § 3.321(b)(1)). This rule applies to all applications for benefits that are received by VA on or after January 8, 2018, or that are pending before VA, the Court, or the Federal Circuit on January 8, 2018. Id. As such, the benefit the Veteran seeks in that regard is precluded by law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). Finally, the Board acknowledges the Veteran's sincere belief that his hearing loss is worse than reflected by his currently-assigned rating. The Veteran is competent to report symptoms of disability, such as difficulty hearing speech. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under the rating schedule for hearing loss, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the Board finds that entitlement to an initial compensable rating for bilateral hearing loss is not warranted at any time since the effective date of the grant of service connection. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 2. Entitlement to a TDIU The Veteran's claim for a TDIU was raised during the pendency of his appeal of service connection for a respiratory disorder and an increased rating claim for his service-connected bilateral hearing loss, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. It is the established policy of VA 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. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for: bilateral tinnitus (rated 10 percent disabling); and bilateral hearing loss (rated noncompensable). The Veteran's service-connected disabilities combine to a 10 percent rating during the period on appeal. See 38 C.F.R. §§ 4.25, Combined Ratings Table. Given the foregoing, the Board finds that the Veteran does not meet the minimum percentage requirements under 38 C.F.R. § 4.16(a) for entitlement to a schedular TDIU. In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to a service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Referring a case for extraschedular consideration requires that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Having determined that the Veteran is not eligible for assignment of a schedular TDIU, the question before the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities, such that referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. The Board notes that the claims file contains little information in regard to the Veteran's occupational history. However, the evidence of record indicates that as of January 2020, he worked at a recycling plant doing maintenance. During the Veteran’s audiological examinations, the examiners determined that the Veteran's bilateral hearing loss impacts ordinary conditions of daily life, such as the ability to work, due to causing difficulty hearing in background noise, in conversational speech, and in understanding speech in noise without amplification. The Veteran's private and VA treatment records were also reviewed. The Board notes that the Veteran's treating clinicians do not make any suggestion that he is unemployable at any time. Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation at any time throughout the period on appeal. In making this determination, the Board acknowledges that the Veteran's service-connected disabilities certainly cause him some level of functional impairment. However, while the Veteran's bilateral hearing loss sometimes interferes with his ability to hear and understand speech, there is no evidence to support a finding that this functional impairment otherwise renders him unable to secure or follow a substantially gainful occupation. In sum, the medical evidence of record does not suggest that the Veteran is unemployable due to his tinnitus, or bilateral hearing loss. Further, the Board finds it significant that the Veteran has not put forth any specific contentions as to how his service-connected disabilities prevent him from securing or following substantially gainful employment. Finally, there is nothing in the Veteran's medical records to suggest that his disabilities cause such an exceptional or unusual disability picture so as to place him in a different category than other veterans with an equal rating of disability. As such, there is no basis for referring the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). In making this finding, the Board emphasizes that the rating schedule is 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. To the extent that service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for his disabilities compensate the Veteran for such impairment. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.