Citation Nr: 21007664 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-36 695 DATE: February 10, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to total disability individual unemployability (TDIU) rating is denied. FINDINGS OF FACT 1. The Veteran's service-connected bilateral hearing loss was manifested by no worse than Level III hearing acuity in his right ear and Level III hearing acuity in his left ear. 2. The evidence does not demonstrate that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (DC) 6100. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1959 to February 1968. This appeal comes before the Board of Veterans’ Appeals (Board) from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned at a Board videoconference hearing. A transcript is of record. The Board remanded this matter in February 2020 and September 2020 for further development, to include obtaining a VA examination and outstanding treatment medical records. The record supports substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). While pending remand, the RO granted a pending claim for service-connection for erectile dysfunction. Such constitutes a full grant of the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) 1. Entitlement to an initial compensable rating for bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86 (a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). The Veteran seeks a compensable rating. The appeal stems from a claim for increase filed on June 8, 2015. As a result, the period on appeal is from one year prior to the date of claim forward. Three VA audiological examinations have been conducted during the appeals period. None of the examinations show hearing loss severe enough to warrant a compensable evaluation. A March 2014 VA examination reveals that the Veteran reported difficulty hearing speech, difficulty hearing and understanding the television, and asking for frequent repetitions. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 35 50 50 LEFT 35 40 35 45 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. Puretone average in the right ear was 45 and in the left ear was 42.5. The test results were found to be valid for rating purposes. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown A July 2015 VA examination reveals that the Veteran reported difficulty in communicating with others. He reported always asking others to repeat themselves. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 30 45 40 LEFT 20 25 25 35 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Puretone average in the right ear was 36.25 and in the left ear was 32.5. The test results were found to be valid for rating purposes. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. On September 2019 Board hearing the Veteran reported a worsening in his hearing. He also specified being unable to communicate without his hearing aids and requiring the use of closed captioning for watching television.   An October 2020 VA examination reveals that the Veteran reported an inability to hear family members. He reported asking others to repeat questions to comprehend what was said and raising the volume on the television and radio. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 55 60 LEFT 35 35 35 50 60 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 percent in the left ear. Puretone average in the right ear was 46.25 and in the left ear was 45. The test results were found to be valid for rating purposes. Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown Treatment medical records do not contradict the findings above. Treatment records, including those obtained on remand, also do not reflect hearing acuity testing results documenting a compensable rating. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reports during VA audiological examinations and his hearing testimony. To that end, the Board considered the Veteran’s consistent statements of being unable to hear family, friends, and the general public without great effort and repeating of conversations. The Board also considered the Veteran’s reliance on increased volume and/or closed captioning in order to understand television programs and/or the radio. That said, the Veteran is competent to report difficulty with his hearing. However, disability ratings for hearing loss are derived from/predicated on a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Such application does not support entitlement to higher rating for any portion of the period on appeal. Moreover, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described in his reports to VA examiners and during his hearing testimony is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which are contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for service-connected bilateral hearing loss. 2. Entitlement to TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). “TDIU is to be awarded based on the ‘judgment of the rating agency.’” Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).   A total disability rating typically requires either a single disability rated at 60 percent or more, or multiple disabilities rated together at 70 percent or more with at least one of the disabilities rated at 40 percent or more. 38 C.F.R. § 4.16 (a). An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability under 38 C.F.R. § 4.16 (b). See 38 C.F.R. § 3.321 (b)(1). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. “TDIU is to be awarded based on the ‘judgment of the rating agency.’“ Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Board does not have jurisdiction to award extraschedular TDIU in the first instance. Rather, it must refer the claim to the Director of Compensation Service (the Director) for extraschedular consideration. See 38 C.F.R. § 4.16 (b); see also Floyd v. Brown, 9 Vet. App. 88 (1996) (noting that the Board cannot assign an extraschedular rating in the first instance). The Board has jurisdiction to decide an extraschedular TDIU claim if, and only if, the Director determines that an extraschedular evaluation is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009). In the instant case, the Veteran is in receipt of a 10 percent rating for tinnitus and coronary artery disease (CAD) and noncompensable ratings for bilateral hearing loss and erectile dysfunction. His combined rating is 20 percent. He does not meet schedular criteria. There is also no basis for referring the matter to the Director for a determination regarding extraschedular.   The Veteran did not respond to a request for information to support his claim for TDIU therefore the record is limited. Nevertheless, treatment medical records and hearing testimony reflect his he has a bachelor’s degree and masters. As to employment, he served as a minister from 1976 to 1995 and thereafter, worked part-time as a bank teller and retired in 2005. That said, the evidence of record does not present the exceptional circumstances necessary for referral to the Director of C&P. First, VA examination opinions do not reflect that the Veteran’s service-connected disabilities render him unemployable. The contrary is shown. An erectile dysfunction examination revealed no functional impairment. Moreover, although the above listed hearing examinations revealed decreased acuity, they were negative for a finding that he was so impaired as to preclude from all forms of employment. Such is relevant as on Board hearing the Veteran essentially testified to his hearing impairment precluding consistent or sustained conversation with others. Finally, treatment medical records throughout the appeal do not contain a finding by any competent physician that his above service-connected disabilities render him unemployable. These records also do not indicate the Veteran’s CAD renders him unemployable. To that end, the Veteran maintained METs scores between 7.6 and 9.5 from 2016 to 2017. Records thereafter from 2018 to 2020, document the Veteran as at worst, “able to do greater than 4 METs without cardiac symptoms.” For reference, METs greater than four equates to being able to do housework and mow a lawn for 45 minutes once a week without dyspnea or chest discomfort. That said, collectively, the above records indicate that at most the Veteran’s CAD would preclude some forms of physically laborious employment but not all forms of employment. Based upon the available record, the Board finds the evidence does not demonstrate that the Veteran’s service-connected disabilities render him unable to obtain or maintain substantially gainful employment. Although the medical evidence demonstrates that the Veteran’s service-connected CAD and hearing loss disabilities represent an occupational impairment, the overall evidence of record is not indicative of unemployability even when combined. Moreover, the Veteran has not provided information which establishes that his service-connected disabilities would preclude all forms of employment especially considering his extensive educational history. He also, as stated, did not provide a response to request for such information. Referral to the Director of the Compensation Service for extra-schedular consideration is not warranted. Therefore, the Board finds that entitlement to a TDIU must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.