Citation Nr: 21009990 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 20-03 224 DATE: February 23, 2021 ORDER Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is most closely approximated by a noncompensable, 0 percent disability rating. 2. The evidence of record does not show that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for establishing entitlement to a TDIU have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1962 to December 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in April 2020 it was remanded for additional development. Specifically, the RO was instructed provide the Veteran with an examination to address the current severity of his bilateral hearing loss. A relevant examination was obtained. As such, the Board finds that the AOJ substantially complied with the directives in the April 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Bilateral Hearing Loss The severity of hearing loss is determined by comparing audiometric test results with the specific criteria. 38 C.F.R. § 4.85, Diagnostic Codes 6100 through 6110. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from service-connected defective hearing. The Veteran is seeking ratings in excess of those already assigned to his service-connected bilateral hearing loss. VA treatment notes indicate that the Veteran has received treatment for his bilateral hearing loss. Additionally, the Veteran has undergone a prior December 2018 VA audiological examination which indicated the Veteran was entitled to a non-compensable rating. As part of the Board’s April 2020 remand the Veteran was provided with a current audiological examination. As there are no additional audiological tests or findings in the record that differ significantly from, or are worse than, the below cited audiological and VA examinations, the Board will focus its discussion on the more current below cited examinations. In March 2020 the Veteran underwent a hearing evaluation as part of a VAMC audiology progress note, which revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 30 30 25 65 65 42.25 LEFT 30 25 60 60 60 51.25 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 86 percent in the left ear. It is not clear whether Maryland CNC scores were used to measure speech recognition, however, for the purpose of argument the Board will assume that a valid form of speech audiometry testing was performed. Applying the March 2020 audiometric results to the Rating Schedule reveals a numeric designation of Level II for the Veteran’s right ear and Level II for the Veteran’s left ear. See C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in a noncompensable rating from this examination. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. In September 2020 the Veteran underwent a VA audiological examination, which revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 30 25 25 70 75 48.75 LEFT 30 25 50 65 75 53.75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Applying the September 2020 audiometric results to the Rating Schedule reveals a numeric designation of Level I for the Veteran’s right ear and Level I for the Veteran’s left ear. See C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in a noncompensable rating from this examination. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Board acknowledges the Veteran’s lay statements regarding experiencing difficulty hearing. However, disability ratings for hearing impairment are 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). Thus, based on the audiometric findings of record, a compensable rating for bilateral hearing loss is not warranted, and the Veteran’s claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU—Legal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as “one disability” for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). A veteran’s age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran’s ability to obtain and maintain employment consistent with his or her education and experience. Analysis The Veteran contends that his service-connected disabilities render him unable to secure or follow substantially gainful employment. The Veteran is service connected for tinnitus at 10 percent disabling and bilateral hearing loss with a noncompensable disability evaluation. He does not meet the schedular criteria under 38 C.F.R. § 4.16(a) for a TDIU. Nonetheless, in cases where the scheduler criteria are not met, an extraschedular rating must be considered. 38 C.F.R. § 3.321. Entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As noted above, 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 his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In April 2020 the Veteran submitted a VA Form 21-8940 Application for increased Compensation Based on Unemployability. The Veteran reported that his last employment was as a Bill Collector in December 2019. Further, the Veteran reported that he stopped working full time in 2009 and started working approximately 2 days a week. He indicated that he completed two years of college and did not note any other education or special training. In a lay statement received in April 2020, the Veteran clarified that he stopped working as a Bill Collector in January of 2018, but the date he last worked was August 2019, at which time he was doing “mail returns” which did not require him to use the phone as part of his employment. The VA received a May 2020 employment information form from the Veteran’s previous place of employment. The Veteran’s former employer noted that the Veteran retired in 2016 and then worked occasionally, approximately one day a month, until August 2019. The employer noted that they were not aware whether the Veteran’s service-connected disabilities played a part in his decision to retire. The Veteran submitted a November 2020 lay statement where he indicated that after he retired his plan was to work two days a week. However, now he can only work in “skip tracing” which requires no phone work. The Veteran additionally noted that at his age he would be unable to find employment for $25-30 per hour in a different field. However, the Board notes that there is no evidence in the record that the Veteran’s tinnitus and bilateral hearing loss have by themselves rendered the Veteran unemployable. In this case, the weight of the evidence is against the conclusion that the Veteran's service-connected disabilities have rendered him incapable of being able to secure or follow substantially gainful employment. In short, the Board finds that the preponderance of the evidence is against the claim for TDIU; therefore, entitlement to TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.