Citation Nr: 21009479 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 20-03 845 DATE: February 22, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for service-connected bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability is denied. FINDINGS OF FACT 1. Throughout the period of the claim, the Veteran’s bilateral hearing was manifested by hearing acuity of no worse than Level VIII in the right ear and no worse than Level VII in the left ear; his reported bilateral hearing loss impairment and symptoms are reasonably contemplated by the schedular rating criteria. 2. The preponderance of evidence is against a finding that the Veteran cannot maintain substantially gainful employment due to his service-connected disabilities alone. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.6, 4.7, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6100. 2. The criteria for an award of a total disability evaluation based on individual unemployability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1961 to October 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim for an increased initial rating for service-connected bilateral hearing loss was previously remanded by the Board in September 2020 for a new VA examination to assess the current severity of his hearing disability. The Veteran was afforded a VA audiology examination in November 2020. As such, the Board finds the September 2020 remand directives have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript is of record. Under Rice v. Shinseki, the Board has jurisdiction over a total disability rating based on individual unemployability (TDIU) claim as part and parcel of the Veteran’s increased rating claim if raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation). This issue has been separately characterized in the issues above in accordance with that decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss The Veteran contends that his bilateral hearing loss is more disabling than the initial 30 percent rating assigned. Ratings for a hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns, each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, the first pattern is present in this case. In the instant case, the Veteran was afforded a VA audiology examination in July 2016. At such time, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 50 60 65 55 LEFT 40 45 60 65 53 Puretone test results were deemed valid. The Veteran’s speech recognition ability was 68 percent in his right ear and 54 percent in his left ear and the examiner determined the use of the speech discrimination score is appropriate for this Veteran. Under 38 C.F.R. § 4.85, this would result in a hearing level of V for the Veteran’s right ear and a hearing level of VII for his left ear using Table VI. Under Table VII, hearing levels V and VII correspond to a 30 percent rating. The Veteran underwent another VA audiology examination in November 2020. At such time, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 70 75 75 69 LEFT 50 65 75 75 66 Puretone test results were deemed valid. The Veteran’s speech recognition ability was 44 percent in his right ear and 40 percent in his left ear; however, the examiner determined that word discrimination testing is not appropriate for the Veteran for either ear because of language difficulties, cognitive problems, inconsistent word recognition scores, and other factors. The examiner certified such. Accordingly, pursuant to 38 C.F.R. § 4.85(c) and 38 C.F.R. § 4.86, Table VI and VIA will be used as appropriate. Pursuant to 38 C.F.R. § 4.86, the Veteran’s right ear hearing loss is at level VIII. See Tables VI and VIA. Under Table VIA, which is based solely on the pure tone threshold average, the Veteran’s left-ear hearing loss is at level V. Under Table VII, hearing levels VIII and V correspond to a 30 rating. As such, the assignment of a 30 percent rating is warranted. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, the assignment of disability ratings for hearing impairment is 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). In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court of Appeals for Veterans Claims (Court) held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. The Board acknowledges that the Veteran reported that his bilateral hearing loss causes difficulty understanding conversations without visual cues, hearing the TV only at a volume level that is uncomfortable for family members and difficulty hearing with background noise on or crowds. See November 2020 and July 2016 VA Hearing Loss Examination Reports. The Veteran’s reported hearing-related symptomatology is contemplated in the regulations and schedular rating criteria. See Doucette, 28 Vet. App. 366 (holding that “the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure... an inability to hear or understand speech or to hear other sounds in various contexts... are contemplated by the schedular rating criteria”). In sum, based on the evidence of record, the Board finds that an initial 30 percent disability evaluation is the appropriate rating for the severity of the Veteran’s service-connected bilateral hearing loss. 2. Entitlement to a TDIU The Veteran submitted a VA Form 21-8940 in June 2019 and the issue has thus been raised by the record in this case. Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. For the purpose of meeting these schedular criteria, 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, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. 38 C.F.R. § 4.16(a). 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). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 361. “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “marginal employment shall not be considered substantially gainful employment.” For purposes of TDIU, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a facts-found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop-when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16 has economic and noneconomic components, the latter of which focuses on the individual veteran’s ability to perform the physical and mental acts necessary for such an occupation. Id. at 73. To adequately address the noneconomic component of § 4.16, attention must be given to factors that may affect the veteran’s “mental ability to perform the activities required by the occupation at issue,” such as “the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.” Additionally, attention must be given to factors that may affect the veteran’s “physical ability... to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue,” such as “the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing and reaching, as well as auditory and visual limitations. Id. Service connection is in effect for bilateral hearing loss, rated as 30 percent disabling from February 8, 2016; post-traumatic stress disorder (PTSD), rated as 30 percent disabling from February 8, 2016; and tinnitus, rated as 10 percent disabling from May 9, 2012. These ratings combine to an overall 10 percent from May 9, 2012 and a 60 percent rating from February 8, 2016. Thus, the schedular percentage criteria for a TDIU are not met at any point during the appeal period. Additionally, the Board finds that the evidence of record fails to show that the Veteran is unable to obtain or maintain a substantially gainful occupation as a result of his service-connected disabilities. The record reflects that the Veteran held a number of jobs after separation, working for periods of three months to two years for a logging company, a truck washing company, a wood laminating shop, a plywood company, a ship building company a parts remanufacturing company, in construction and as a bartender and bouncer. The Veteran reports he went back into construction but suffered a crush injury to his right foot and ankle and was in recovery for almost two years. He underwent multiple operations on his leg, which was amputated years later. The Veteran returned to school, obtained an associate degree and then worked as a machinist and fabricator for 24 years. He retired from this work in 1998 and has not worked since that time. See April 2016 VA PTSD Examination Report. VA audiological examination reports note that the Veteran reported his bilateral hearing loss causes difficulty understanding speech in noise, hearing his phone ring, and understanding speech without visual cues. He also reports that his decreased hearing necessitates him to turn the television up to a level that is uncomfortable for family members and makes loud sounds very uncomfortable. The Veteran also reported that his tinnitus can interfere with his ability sleep and that the constant ringing distracts from voices. See November 2020 and July 2016 VA audiological examinations. In April 2016, a VA examiner found that the Veteran’s PTSD causes 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 behaviour, self-care and conversation. The examiner noted symptoms of chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that he left the ship building company after two years due to a disagreement with a co-worker, but at his last place of employment as a machinist and fabricator for 24 years, he performed satisfactorily with occasional problems due to irritability, reporting frustration with a particular co-worker who was not always responsible at work. See April 2016 VA PTSD Examination Report. The record shows that the Veteran bases his claim for a TDIU solely on disabilities that are not service connected, specifically, lung disease, diabetes, and a back disability, as well as his right leg amputation. See June 2019 VA Form 21-8940. The Veteran in fact specifically states that he could no longer perform his job when his right leg was amputated. Id.; see also November 2007 VA Treatment Note. While the Board is sympathetic to the Veteran’s physical difficulty given his work as a machinist / fabricator, symptoms from the Veteran’s non-service-connected lung, diabetes and back disorders, as well as his right leg amputation, are not service-connected and therefore cannot be a basis for an award of a TDIU. The Board acknowledges that the Veteran’s bilateral hearing loss, tinnitus and PTSD affect his occupational functioning. As noted above, the Veteran reported leaving a job because of a disagreement with a co-worker and irritability and frustration with one co-worker in particular at his last place of employment. However, the record also shows that he reported a stable marriage, has friends and helps neighbors by repairing various items. See April 2016 VA PTSD Examination Report and May and June 2015 VA Treatment Notes. His PTSD is not manifested by symptoms of such severity so as to preclude employment. The Board also considered the mental ability-factors noted in Ray, to include irritability and difficulty getting along with co-workers. His physical ability factor, i.e., difficulty with hearing conversations, is also acknowledged. Nonetheless, the evidence overwhelmingly indicates that the Veteran’s retirement was due to the amputation of his right leg and not due to his service-connected disabilities. Unemployability due to service-connected disability or disabilities is not present. Additionally, the record shows that medical professionals have not found the Veteran to be precluded from obtaining and/or maintaining employment due to his service-connected disabilities. The sole fact that a claimant has difficulty obtaining employment is not enough. The Veteran’s disability rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Accordingly, the Board finds that a referral for extraschedular consideration by the Director of Compensation Service is not warranted. The Veteran’s service-connected disabilities do not render him unemployable; thus, no additional action is needed. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, this doctrine is inapplicable. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.