Citation Nr: 21013633 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-42 368 DATE: March 10, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss (BHL) is denied. Entitlement to an effective date of December 14, 2010, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Audiometric examination corresponds to no greater than Level I hearing loss in both ears. 2. The Veteran filed an increased rating claim for his service-connected BHL that was received December 14, 2010 and entitlement to TDIU was raised during the period on appeal. 3. The Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected conditions as of December 14, 2010. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for BHL have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100. 2. The criteria for an effective date of December 14, 2010, but no earlier, for the grant of entitlement to TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to April 2001. The Veteran appealed an August 2011 rating decision by the Agency of Original Jurisdiction (AOJ). In June 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VIA, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. 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). On the authorized audiological evaluation in May 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 30 55 65 LEFT 5 10 20 60 65 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 39 decibels in both ears. The speech recognition scores on the Maryland CNC word list were 96 percent for the right ear, and 100 percent for the left ear. Applying the test results of the May 2013 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected BHL. On the authorized audiological evaluation in October 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 20 70 70 LEFT 10 10 20 70 75 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 45 decibels in the right ear and 44 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 100 percent in both ears. Applying the test results of the October 2013 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected BHL. On the authorized audiological evaluation in November 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 40 65 65 LEFT 5 0 30 70 75 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 43 decibels in the right ear and 44 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 98 percent in both ears. Applying the test results of the November 2020 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected BHL. The Board finds that the VA examinations are adequate for rating purposes. Apart from these two VA examinations, there are no other adequate audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. The record includes SSA audiological evaluations in February and November 2016. However, the SSA audiological evaluations are inadequate because they do not indicate use of the Maryland CNC word list or clearly mark the thresholds for each ear. Nevertheless, even applying a liberal reading of the SSA audiological evaluations would not result in a compensable rating. Overall, the Veteran contends he warrants a higher rating and that his hearing is bad. However, based on the adequate audiological assessments of record and mechanical application of the rating criteria, a higher rating is not warranted. Accordingly, the evidence of record does not support a compensable disability rating for BHL and the appeal is denied. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). TDIU An August 2019 rating decision granted entitlement to TDIU from June 12, 2018. The Veteran claims entitlement to TDIU based on both his service-connected posttraumatic stress disorder (PTSD) and hearing loss. See May 2019 VA Form 21-8940. Therefore, the issue of entitlement to TDIU dates to the Veteran’s filing for an increased rating claim for his hearing loss. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The Veteran’s VA Form 21-526 was received on December 14, 2010. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled 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). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is reasonably raised by the record. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year “look back period” preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran is service-connected for PTSD at 70 percent disabling from December 14, 2010. The Veteran is also service-connected for residuals of cold weather injury on the right foot at 20 percent, tinnitus at 10 percent, and noncompensable BHL for the entire appellate period. The Veteran’s May 2019 VA Form 21-8940 noted he worked until 2014 and previously worked as a detention officer in 2003, a salesperson from 2008 to 2009, and full-time custodian from 2010 to 2012 making $900.00 a month. The Veteran has a high school education. Id. SSA records also indicate that the Veteran worked as a delivery driver from 2003 to 2004, a machinist in 2005, on an assembly line in 2006, as a furniture salesman from 2011 to 2012 making $7.25 an hour, and as a janitor from 2013 to 2014 making $7.00 an hour. As such, during part of the period on appeal, the Veteran worked in sales and as a custodian making minimum wage and around $900.00 a month. Although the Veteran may have worked full-time at certain points during the period on appeal, the amount he made does not amount to the poverty threshold and is marginal employment at best. The Board finds the Veteran’s employment during the period on appeal does not amount to substantially gainful employment. The Veteran stated in April 2013 that he cannot concentrate at times due to his PTSD and that his feet ache. The May 2013 VA examiner regarding hearing loss noted that it is very hard for the Veteran to hear if there is any background noise or if he is not standing close to the speaker. The October 2013 VA examiner regarding hearing loss noted the Veteran’s tinnitus makes it hard to listen during work. The October 2013 VA examiner regarding cold injuries and the foot noted the Veteran’s right foot has numbness and pain and that he is unable to stand for prolonged periods or have weight on the feet without pain. The August 2014 VA examiner regarding mental disorders noted impaired sleep, nervousness, and anxiety with hallucinations. The Veteran stated in his November 2014 VA Form 9 that he has bad memory problems, difficulty maintaining relationships, angry outbursts, trouble sleeping, concentration issues, and that his hearing loss causes problems at work. The September 2016 informal hearing presentation (IHP) noted the Veteran has extreme difficulty understanding others clearly. The Veteran noted in his May 2019 VA Form 21-8940 that he has difficulty focusing on the job. The June 2019 VA examiner regarding PTSD noted the Veteran has occupational and social impairment with deficiencies in most areas, panic attacks when around people, problems with concentration, limited motivation, anxiety, mild memory loss, impairment of short and long term memory, difficulty establishing effective relationships, cognitive abilities slightly below average, and that he would have difficulties gaining employment. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran previously worked sporadically in various low-income positions. Such positions required either physical activities, communication with others, attention to detail, or working with others. However, the evidence suggests that the Veteran has difficulty hearing. Therefore, he is not able to communicate well with others. This would impact such positions as retail, customer service, and sales. Hearing loss would also raise safety concerns for construction and home improvement related jobs. Additionally, the Veteran’s residuals of cold weather injury to his right foot would cause difficulties working in physical labor positions. The Veteran also has panic attacks, is unable to be around crowds of people, and has cognitive issues such as concentration and memory problems. Therefore, the Veteran would be unable to work in any position that dealt with people or required persistent attention. This would include such positions as administrative or computer work. Nevertheless, the Veteran does not have training or experience in such industries. Overall, these symptoms and deficiencies were present throughout the period on appeal. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected conditions. Therefore, given the totality of the evidence, the Board finds the criteria for an effective date of December 14, 2010, but no earlier, for entitlement to TDIU have been met. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate 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.