Citation Nr: 21015000 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 11-01 326 DATE: March 16, 2021 ORDER Entitlement to an initial compensable rating for service-connected bilateral hearing loss is denied. For the period prior to January 23, 2009, entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran had, at worst, Level II hearing in both his left and right ears. 2. Prior to January 23, 2009, the Veteran did not meet the schedular requirements for a TDIU and his service-connected disabilities are not shown to have rendered the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for service-connected hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for a TDIU for the period prior to January 23, 2009 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 1969 to October 1970, and from February 1981 to August 1985. This appeal comes to the Board of Veterans’ Appeals (Board) from Department of Veterans Affairs (VA) February 2009 and an October 2019 rating decisions of the Agency of Original Jurisdiction (AOJ). In May 2015, as well as in June 2018, the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the two remands, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. In January 2015 the Veteran appeared before the undersigned Veterans Law Judge. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to an initial compensable rating for service-connected bilateral hearing loss The Veteran claims that his service-connected bilateral hearing loss warrants an initial compensable rating. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). As discussed in detail below, the Veteran’s audiological examinations do not show exceptional patterns of hearing loss. Throughout the appeal period, the Veteran underwent several audiometric examinations. In January 2008, the Veteran was seen for one such examination, and the results are as follows:   HERTZ 1000 2000 3000 4000 AVG CNC Right 15 45 55 60 43.75 88% Left 20 35 60 55 42.5 88% Applying the results of the examination to Table VI, the Veteran had Level II hearing in both of his ears. Using Table VII, a combination of Level II and II hearing corresponds to a 0 percent disability rating. Shortly thereafter, the Veteran was seen for another VA audiometric examination in February 2009. The results were as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 15 45 60 60 45 88% Left 20 30 60 65 43.75 88% As with the January 2008 examination, the applying the results to Table VI the Veteran has Level II hearing in both ears, which equates to a 0 percent rating when applied to Table VII. The Veteran’s next audiometric examination was performed by a VA examiner in   December 2012. The results were as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 10 50 65 70 48.75 88% Left 20 35 65 70 47.5 84% As with the prior audiometric examinations the Veteran had Level II hearing in both of his ears. Using Table VII, a combination of Level II and II hearing corresponds to a 0 percent disability rating. The Veteran’s most recent audiometric examination was performed by a VA examiner in May 2017, pursuant to a Board remand. The results were as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 10 55 60 60 46 96% Left 15 35 60 60 44 96% The scores in both ears equate to Level I hearing according to Table VI. When applied to Table VII, the dual Level I hearing findings equate to a 0 percent disability rating. At his Board hearing, the Veteran stated that he has issues hearing in the higher registers. This interferes with his driving, his ability to hear his wife and other people, and activities of daily living such as watching TV. The Veteran uses hearing aids. The Board acknowledges the Veteran’s contentions and notes that he is competent to report his hearing difficulties. Jandreau v. Nicholson, 492 F.3d 1372 (2007). However, the disability ratings assigned for hearing loss are not contingent on whether the Veteran requires treatment such as hearing aids, but rather focuses on the functional impact of the Veteran’s condition. This functional impact is taken into consideration with the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notwithstanding, a higher rating is not warranted based solely on lay statements. In this regard, 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 (1992). The Board notes that the VA audiological examination reports describe the effects of the Veteran’s hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). While the Veteran contends that his bilateral hearing loss warrants a higher rating, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. As noted above, the functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Further, while the Board has also considered referring the issue to the Director of Compensation Service for possible extraschedular evaluation, there is no evidence that presents an unusual or exceptional disability picture, and thus referral is not warranted. See Doucette, 28 Vet. App. at 369 (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). The preponderance of the evidence is against the claim in this instance, and the Board finds that an initial compensable rating for bilateral hearing loss disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. Ortiz v. Principi, 274 F.3d 1361 (2001). 2. For the period prior to January 23, 2009, entitlement to a TDIU The Veteran contends that his service-connected disabilities entitle him to a TDIU prior to January 23, 2009. A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the poverty threshold for one person. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019), the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. January 23, 2009 is the earliest date at which the Veteran meets the threshold schedular requirements for a TDIU. At that time, he was assigned a 70 percent combined disability rating based on the following disabilities: posttraumatic stress disorder (PTSD), 30 percent (later increased to 50 percent effective August 23, 2010); degenerative disc disease (DDD) of the lumbar spine, 40 percent (later reduced to 20 percent as of November 20, 2009); right plantar fasciitis, 10 percent (later increased to 20 percent effective May 2017); left plantar fasciitis, 10 percent (later increased to 20 percent effective May 2017); tinnitus, 10 percent; left varicocele with bilateral epididymal cysts, 10 percent; left corneal scar, bilateral hearing loss, and right corneal scar, all with non-compensable, or zero percent ratings. Effective June 22, 2007, the Veteran’s combined rating was 40 percent with the higher single rating of 10 percent; effective August 14, 2008, the combined disability evaluation was 50 percent with the highest single rating 20 percent. Effective January 22, 2009, the highest combined disability rating assigned was 60 percent; at the time, the highest-rated single disability rating assigned was 40 percent for his PTSD. As the Veteran does not meet the threshold schedular requirements for a TDIU prior to January 23, 2009, entitlement to a TDIU on a schedular basis must be denied. Prior to January 23, 2009, the Veteran’s service-connected disabilities included: degenerative disc disease of the lumbar spine (10 percent from June 22, 2007; 20 percent from August 14, 2008; and 40 percent from January 22, 2009); right plantar fasciitis (10 percent from June 22, 2007); left plantar fasciitis (10 percent from June 22, 2007); left varicocele with bilateral epididymal cysts (10 percent from June 22, 2007); left corneal scar (0 percent from June 22, 2007); and bilateral hearing loss (0 percent from June 22, 2007). What is left for the Board to determine is whether referral of the Veteran’s claims to the Director, Compensation Services for extraschedular consideration is appropriate. At his January 2015 Board hearing, the Veteran stated that he has a high school education, and his work experience is that of manual labor. He has worked as a carpenter and as a lawn mower mechanic. According to the Veteran, he last worked in 2000. The Board notes that in a July 2008 VA Form 21-527 Employment Statement, the Veteran claims he last worked around August 2004, which is the date he claims he became totally disabled. At his hearing, the Veteran stated that he “didn’t want” to continue working at the lawn mower repair shop, and stated that his PTSD “had a lot to do with it,” and that he “wanted to get out of the system.” The Veteran stated has not worked since leaving the repair shop, but he did admit to no looking for any kind of work. It is unclear whether, prior to January 23, 2009, the Veteran merely did not want to work, or was prevented from working due to his service-connected disabilities. Overall, the record does not reflect that the Veteran’s service-connected disabilities combined to prevent the Veteran from obtaining or retaining gainful employment prior to January 23, 2009. Further, it is notable that the Veteran’s statements regarding his employment history are inconsistent. To the extent that the Veteran has reported that his PTSD had a lot to do with his decision to stop working, the Board notes further that the Veteran had not established service connection for PTSD until January 23, 2009 so that disability is not for consideration as to the Veteran unemployability prior to January 23, 2009 as it was not a service-connected disability prior to that date. From a review of the available medical and other relevant evidence of record, the Board finds that the Veteran’s disabilities for which service connection was established prior to January 23, 2009 are sufficiently contemplated by the schedular ratings that were then assigned. See, e.g. January 2008 VA examination; 2008 VA treatment records. As such, referral for extraschedular consideration prior to January 23, 2009 is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.