Citation Nr: 21009503 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-33 314 DATE: February 22, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss, prior to April 23, 2013, is denied. An initial rating of 10 percent, but no higher, for bilateral hearing loss, from April 23, 2013, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to April 23, 2013, the Veteran’s bilateral hearing loss was manifested by no worse than Level I hearing acuity in the right ear and Level II in the left ear. 2. From April 23, 2013, the Veteran’s bilateral hearing loss was manifested by no worse than Level II hearing acuity in the right ear and Level VII in the left ear. 3. The evidence of record fails to demonstrate that the Veteran’s service-connected disabilities prevent him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 23, 2013, the criteria for a compensable rating for bilateral hearing loss were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. From April 23,2013, the criteria for a 10 percent rating for bilateral hearing loss, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100. 3. The criteria for 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 February 1969 to December 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2013, June 2013, May 2019 and June 2019 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2019, the Board remanded these claims for additional development. The required development has been completed and the claims are returned for additional appellate review. 1. Entitlement to an initial compensable rating for bilateral hearing loss Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). Evaluations for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These evaluations are based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test, the Maryland CNC test, together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. Tables VI-VII, Diagnostic Code 6100. Hearing acuity levels are assigned using just the puretone audiometry tests only where the examiner certifies that use of the speech discrimination test is not appropriate due to language difficulties or inconsistent speech discrimination test scores, for instance, or where exceptional patterns of hearing impairment exist. 38 C.F.R. §§ 4.85(c), 4.86. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a)-(b). In these circumstances, the hearing acuity level will be assigned using either Table VI or Table VIa, whichever yields the higher level. Id. The Board notes that service connection for bilateral heating loss was granted based on aggravation during active service of the Veteran’s pre-service hearing deficit. The relevant regulation as it pertains to rating of disabilities granted based on aggravation, states that when a veteran is granted service connection on the basis of aggravation of a preexisting disability, the rating must “reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time.” 38 C.F.R. § 4.22; see also 38 C.F.R. § 3.322(a). The provisions of 38 C.F.R. § 4.22 also state that “[i]f the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made.” Id. A June 2013 rating decision allowed service connection for bilateral hearing loss. A noncompensable rating was applied. The Veteran appealed, seeking a higher disability rating. Following the Veteran’s December 2011 claim, a VA hearing loss examination was provided on April 22, 2013. The examination resulted in the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 20 25 55 65 LEFT 40 50 90 75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear. The average puretone thresholds in the range of 1000 to 4000 Hertz were 41 decibels in the right ear and 64 decibels in the left ear. An exceptional pattern of hearing was not found in either ear. 38 C.F.R. § 4.86. Applying these results to Table VI yields a finding of Level I hearing loss in the right ear and Level II hearing loss in the left ear. Under Table VII, this results in a noncompensable evaluation. The Veteran reported difficulty hearing, particularly on the left side. In conversations, he turned his right ear towards other speakers. He described the sound from the television or when listening to music as muffled. The Veteran submitted a July 2013 audiological evaluation from a private medial office. This evaluation does not include Maryland CNC speech discrimination testing and it is inadequate to evaluate the Veteran’s hearing loss for VA purposes. However, as noted in the Board’s prior remand, the private evaluation indicated the Veteran’s hearing acuity may have worsened. The claim was remanded to obtain an additional VA audiological examination. A second VA hearing loss examination was provided in May 2019. The examination resulted in the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 25 35 65 70 LEFT 75 65 85 90 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. The average puretone thresholds in the range of 1000 to 4000 Hertz were 49 decibels in the right ear and 79 decibels in the left ear. An exceptional pattern of hearing is demonstrated in the left ear. 38 C.F.R. § 4.86. Applying these results to Table VI yields a finding of Level I hearing loss in the right ear. For the left ear, applying these results to Table VIA, which is more favorable, yields Level VII hearing loss in the left ear. Under Table VII, this results in a 10 percent rating. During the examination, the Veteran reported having difficulty hearing while watching television and at the movies. He often asked others to repeat themselves and tried to read lips. The April 22, 2013 VA examination confirmed the Veteran’s hearing loss was noncompensable. Shortly thereafter, a July 2013 private examination indicates his hearing acuity had worsened. Additional testing, which was adequate for VA purposes, was not provided until May 2019. At that time, audiologic testing documented the Veteran’s hearing loss warranted a 10 percent rating. Resolving reasonable doubt in favor of the Veteran, the Board finds a disability rating of 10 percent is applicable from April 23, 2013. See generally Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date). Over the entire appeal period, there is no audiometric testing to warrant a disability rating in excess of 10 percent. 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. The Board acknowledges the Veteran’s reports of difficulty hearing in conversation and while watching television and movies. This type of impairment is fully contemplated by the rating criteria for bilateral hearing loss, which establish the Veteran’s level of impairment was noncompensable prior to April 23, 2013 and 10 percent disabling thereafter. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Finally, Board notes service connection for bilateral hearing loss was allowed based on aggravation of a pre-service hearing deficit. If ascertainable, the degree of disability at the time the Veteran entered into active service must be deducted from the present degree of disability. See 38 C.F.R. § 4.22. The Board’s prior remand requested a medical opinion to evaluate the degree of aggravation of the pre-service hearing loss. In October 2019, a VA audiologist explained that she was unable to describe aggravation of the Veteran’s pre-service left ear hearing loss because no audiological examination was provided when he separated from active service in December 1970. This evaluation includes the analysis required by the Board’s prior remand. The Board notes, the Veteran’s service treatment records include a July 1967 letter which states he experienced pre-service hearing loss following a skull fracture. The letter does not describe the degree of hearing loss present. The service treatment records include the Veteran’s February 1968 entrance examination with the examiner’s notation of “some hearing loss, left ear.” The entrance examination audiogram reflects pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 10 20 30 LEFT 5 10 20 30 This entrance examination does not include any speech audiometry testing. The Veteran’s pre-service hearing loss cannot be calculated under the VA rating schedule. Thus, the Board finds the Veteran’s degree of hearing loss disability at the time he entered into active service is not ascertainable in terms of the rating schedule. Accordingly, there is no basis available to deduct pre-service hearing loss from his current disability rating. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) VA will grant entitlement to TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The sole fact that a veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Over the entire appeal period, the Veteran’s service-connected posttraumatic stress disorder (PTSD) is rated as 70 percent disabling. After August 2019, the Veteran’s combined schedular disability rating is 100 percent. However, a grant of 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his other service-connected disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008) (VA must consider SMC for a TDIU claim despite 100 percent disability rating if VA finds a separate disability supports a TDIU). In August 2012, the Veteran submitted a TDIU claim form which reported that he was a college graduate and he had most recently worked full time as a shipping clerk in 2000. He indicated he became too disabled to work in 2000. In March 2019, the Board noted VA medical records described the Veteran as being employed, in varying capacities, during the appeal period. The Board remanded the claims file and directed the RO to contact the Veteran and request that he file a new TDIU claim with his complete employment history. In June 2020, the RO contacted the Veteran as directed. The Veteran did not respond to this request. The Board notes, the Veteran submitted two additional TDIU claims forms in August 2019. The forms included the Veteran’s report that he received payments from the Social Security Administration (SSA) and retired from self-employment in January 2002. These forms did not provide any information clarifying his employment history over the appeal period. In pursuing a claim, a claimant has some responsibility to cooperate in the development of all facts pertinent to his claim, and the duty to assist is not a one-way street. See Wood, supra. As there is no evidence showing good cause for the Veteran’s failure to return a TDIU claim form with complete employment information, the Board must decide the appeal based on the evidence of record. 38 C.F.R. § 3.655. Here, a September 2012 VA social work note documents the Veteran was employed as a dishwasher. An October 2012 VA annual checkup note indicates the Veteran is retired and not working. However, in October 2012, the Veteran told a VA social worker that he worked one day each week selling cars and worked the rest of each week as a dishwasher. He did not like exercising and preferred to be active through working. In January 2013, a VA social work note describes the Veteran working for 11 hours the day before his appointment. He explained that he liked to stay busy so that he did not have to think about the past. In September 2013, the Veteran was unable to join a VA posttraumatic stress disorder (PTSD) class because of his work schedule. During a September 2013 VA annual checkup, the Veteran reported he was working full time and, despite pain in his legs, he did not want to stop working. In September 2014, VA annual checkup notes indicate the Veteran was not working. However, December 2016 and October 2018 VA annual checkup notes describe the Veteran as working part-time as a car salesman. In November 2019, a VA Parkinson’s Disease examination was provided, and the Veteran reported that he last worked as a dishwasher two years earlier. Following the Veteran’s report that he received SSA payments, the RO requested medical records from SSA. SSA responded that it did not have any medical records for the Veteran. (Continued on the next page)   The Veteran’s TDIU claims forms indicate he last worked in 2000 or 2002. This is directly contradicted by multiple reports made by the Veteran to medical professionals who have treated him over the appeal period. The statements the Veteran has made to medical professionals indicate he has continued to work throughout the appeal period. The Veteran has failed to respond to a request to clarify his employment history in order to allow VA to ascertain his eligibility for a TDIU. Because it appears the Veteran may still be gainfully employed, the Board finds there is inadequate evidence to show the Veteran has been rendered unable to obtain and maintain gainful employment due to his service-connected disabilities. Therefore, entitlement to a TDIU is not indicated. 38 C.F.R. § 4.16(a). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.