Citation Nr: 21010198 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-44 847 DATE: February 24, 2021 ORDER A compensable rating for mild sensorineural hearing loss, left ear, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The competent and credible evidence establishes that during the period on appeal, the Veteran’s left ear hearing loss was manifested by no worse than Level I hearing impairment. 2. The Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for mild sensorineural hearing loss, left ear, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, DC 6100. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1969 to November 1971, July 1988 to March 1994, and February 2003 to February 2004. For his meritorious service, he was awarded (among other decorations) the Bronze Star Medal, the Meritorious Service medal, the Army Achievement Medal, and the Armed Forces Reserve Medal with “M” Device. The Veteran testified during an August 2019 videoconference hearing. A transcript of this proceeding has been associated with the record. These appeals were most recently remanded by the Board in January 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating First, the Veteran is pursuing a compensable rating for his left ear hearing loss under DC 6100. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. With hearing loss disabilities, evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85, the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85, by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 dB 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. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Further, when the puretone threshold is 30 decibels or less at 1,000 Hz and 70 dB or more at 2,000 Hz, 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. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral. Id. In cases such as this, where impaired hearing is service-connected in only one ear, to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of 38 C.F.R. § 3.383. With respect to the available evidence, the Veteran underwent VA audiological evaluations in April 2015 and September 2019, during the period on appeal. However, the Board deemed these evaluations to be inadequate in its January 2020 remand. See January 2020 Board decision (noting that the April 2015 examiner found the testing results to be unreliable, and the September 2019 examination did not provide current testing results and instead cited to a December 2014 audiogram which the Board had previously held to be unreliable). As such, these examinations are not of sufficient probative value for consideration herein. Rather, the Veteran underwent VA contract examination in September 2020, following the Board’s remand. This examination yielded the following results: HERTZ 500 1000 2000 3000 4000 LEFT EAR 10 25 40 50 55 As calculated by the VA examiner, the puretone threshold average was 42.5 dB for the left ear. Additionally, the Veteran registered a speech recognition score of 96 percent at that time. Following testing, the examiner indicated that the Veteran’s puretone threshold results were valid for rating purposes, and the speech discrimination score was appropriate for this Veteran. Upon their credibility, these results are properly rated under Table VI, such that the left ear hearing impairment corresponds to Level I. Intersecting Levels I and I under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c), (f). The Board has reviewed the remainder of the claims file for evidence pertinent to this claim, including extensive VA and private treatment records. However, this evidence does not contain additional and credible audiological results for consideration. In this respect, the Veteran reported annual VA audiograms during the August 2019 hearing. Accordingly, the Board remanded the appeal in January 2020, in part, to obtain the reported audiograms. Although subsequent VA treatment records were obtained, they do not contain audiological testing for consideration, nor is such evidence otherwise present in the Veteran’s VA treatment records. Thus, even if the Veteran has been periodically reviewed for his left ear hearing loss, it does not appear that audiological testing in accordance with VA regulations has been performed at these times, and the duty to assist has been satisfied in this regard. 38 C.F.R. § 3.159(b). The claims file also contains a September 2019 private evaluation for consideration. The provided results would typically yield a 10 percent rating under DC 6100. However, this examination is not found to be competent and credible evidence of the Veteran’s left ear hearing impairment during the period on appeal. Critically, the provided results mark a significant disparity between the Veteran’s puretone threshold testing (which was indicative of minimal hearing loss) and speech recognition score (which was indicative of extreme hearing loss). The private evaluator does not account for this disparity to any degree, or otherwise indicate if the provided results are valid for rating purposes. Considering the history of unreliable examinations in this case, the marked difference between the Veteran’s puretone threshold results and speech discrimination score, and the examiner’s failure to account therefor, it is not found that the September 2019 private examination constitutes competent and credible evidence. As such, the examination report is not sufficiently probative as to warrant a higher rating on this basis alone. The Board has also considered the Veteran’s contention that a higher evaluation is warranted due to his left ear hearing loss. However, he does not possess the requisite training and expertise to competently assess his symptoms against the applicable rating criteria. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the assignment of disability ratings for hearing impairment is derived from the application of a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, this formula does not yield a compensable rating for the Veteran’s level of hearing loss at any time, as based upon the competent and credible evidence. The Veteran has also attributed severe dizziness to his service-connected hearing loss. See, e.g., August 2019 hearing transcript, p. 7. Given that he lacks the medical expertise to competently identify the etiology of his dizziness, the Board requested clarification on this matter in its January 2020 remand. However, the September 2020 VA contract examiner declined to report any additional symptoms or conditions as related to the Veteran’s hearing loss, including vertigo. The remainder of the record, including VA and private treatment records, are similarly silent for such a history as related to the Veteran’s disability. As such, the competent evidence does not establish that a higher evaluation, or the award of a separate service-connected disability, is warranted on this basis. In sum, the preponderance of the evidence weighs against the appeal, the benefit-of-the-doubt doctrine is not for application, and a compensable evaluation for left ear hearing loss is denied. TDIU The Veteran is also pursuing entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, the central inquiry in a TDIU claim 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). A total disability rating for compensation may be assigned when a veteran receives less than a total disability rating (i.e., less than a 100 percent combined disability rating) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for 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. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. Here, the Veteran has met the preliminary schedular criteria for entitlement to a TDIU since September 26, 2012, when he was service-connected as follows: (1) Intervertebral disc syndrome (IVDS) with scar (40 percent); (2) Sciatic radiculopathy, right lower extremity associated with IVDS (10 percent); (3) Sciatic radiculopathy, left lower extremity associated with IVDS (20 percent); (4) Essential hypertension (10 percent); (5) Pinguecula (10 percent); (6) Tinnitus (10 percent); (7) Right wrist tendonitis (10 percent); (8) Left ear hearing loss (noncompensable); (9) Chronic strain in left hand, left little finger (noncompensable). Taken in combination, these disabilities were evaluated as 70 percent disabling, such that the schedular criteria have been met since September 26, 2012. 38 C.F.R. § 4.16(a). Accordingly, entitlement may be awarded upon a finding that the Veteran’s service-connected disabilities preclude his substantial and gainful employment. On this point, the record reflects that the Veteran has a college education, absent additional schooling or training. Most recently, he held a human resources position with the U.S. Army Aviation Technical Test Center through May 2011, when he voluntarily retired. See June 2017 and January 2019 VA Forms 21-8940; June 2017 VA Form 21-4192. Since that time, no evaluator has assessed the combined impact of the Veteran’s service-connected disabilities on his occupational functioning. However, he has undergone several examinations which speak to the impact of his individual disabilities on his capacity to secure or follow a substantially gainful occupation. Most notably, a March 2017 private treatment letter identifies the Veteran as being “100% disabled” and unemployable due to his back and bilateral lower extremity disabilities. The identified conditions were expected to be permanent and unamenable to medical resolution. This opinion is largely supported by the record, to include a June 2017 Disability Benefits Questionnaire (DBQ) which concludes that the Veteran’s back disability impairs his capacity to work. At that time, the VA contract examiner found that the Veteran’s limitation of motion made it extremely difficult for him to perform even the activities of daily living, such as dressing himself, bathing, cooking food, or running errands. As a result, he intermittently required assistance with these basic tasks. He also had difficulty traveling in a car, as his pain increased when traveling “over bumps in the road.” His back pain also caused nightly sleep impairment. See also April 2019 DBQ (noting that the Veteran’s back pain limited his ability to perform any task involving prolonged sitting, standing, and walking); but see October 2018 DBQ (concluding that the Veteran’s back disability did not impact his ability to work). Similarly, the Veteran’s right wrist and left hand disabilities are also shown to cause significant functional impairment. In this respect, multiple examiners have concluded that the Veteran’s right wrist compromises his ability to perform any task requiring wrist dexterity, including the need to pull or lift objects or maneuver his hands into position. See October 2018 and April 2019 DBQs. Further, his ability to grasp with his left hand was “significantly compromised.” See October 2018 DBQ. With respect to the Veteran’s audiological disabilities, the record shows an impaired capacity to drive or maintain conversations on the phone. See September 2020 DBQ. The record is less decisive as to the impact of the Veteran’s hypertension on his functioning. In June 2017, a VA contract examiner noted that the Veteran’s disability caused extreme fatigue, which limited his ability to perform certain activities. In contrast, an October 2018 contract examiner maintained that the Veteran’s hypertension would not impact his ability to work. Further, the competent medical evidence does not consistently establish that the Veteran’s eye disability limits his ability to work. See October 2018 and May 2019 DBQs (maintaining no related functional impairment); but see June 2017 DBQ (concluding that the Veteran was limited due to eye irritation, without identifying the manner in which this impairs his occupational functioning). Although the Veteran has not offered specific testimony on this point, he has routinely solicited a TDIU upon his contention that his service-connected disabilities preclude his gainful employment. See, e.g., August 2019 hearing transcript. Upon the above, the preponderance of the evidence weighs in favor of this appeal. Critically, the Veteran’s back and lower extremity disabilities limit his capacity for such basic movements as sitting, standing, or walking. In the event that he attempts to conduct the activities of daily living, he frequently requires assistance as a result of his symptoms. Even if the Veteran were able to find sedentary employment, he would be severely impaired in his capacity to fulfill his work obligations, due to chronic fatigue and hearing loss. Notably, his right wrist and left hand disabilities also significantly compromise his basic functioning, including wrist dexterity and hand maneuverability. Given the scope and severity of the Veteran’s limitations, it seems highly unlikely that he would be able to secure and maintain any version of employment at this time. Thus, the collective evidence establishes that the Veteran’s service-connected disabilities preclude him from substantial and gainful employment. Entitlement to a TDIU is hereby granted. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.